Dr. Howard Van Nostrand, DC, DAB CR5802 (2021)

DECISION

Petitioner, Howard Van Nostrand, DC, is a chiropractor who lost his license to practice in the State of Virginia and is currently licensed in Florida.  He was convicted of two felonies – torturing and killing an animal and destroying property (hence, the loss of his Virginia license).  He subsequently applied for enrollment in the Medicare program, but the Centers for Medicare & Medicaid Services (CMS) denied his application based on 42 C.F.R. § 424.530(a)(3).  In CMS’s view, his felony convictions are detrimental to the Medicare program and its beneficiaries.  Petitioner now appeals the enrollment denial. 

I find that CMS is authorized to deny Petitioner Van Nostrand’s enrollment application because, within ten years preceding his filing, he was convicted of felonies that CMS reasonably determined are detrimental to the best interests of the Medicare program and its beneficiaries.  I therefore affirm CMS’s determination.

Background

In applications, filed on January 7, 2020, Petitioner applied for enrollment in the Medicare program and to reassign his billing privileges to an entity identified as “East of 75 Chiropractic and Medical Care,” located in Sarasota, Florida.  CMS Exs. 1 at 1; 3, 6. 

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On his enrollment application, he disclosed final adverse legal actions:  forfeiture of his license on March 30, 2016, and January 26, 2016 felony convictions for animal cruelty and destruction of property.  CMS Ex. 3.

By letter dated May 28, 2020, the Medicare contractor, First Coast Service Options, Inc., denied Petitioner Van Nostrand’s applications.  CMS Ex. 2.  The contractor acted pursuant to 42 C.F.R. § 424.530(a)(3), finding that Petitioner was, within the preceding ten years, convicted of felonies – destruction of personal property and the torture of an animal, causing death – that CMS determined are detrimental to the best interests of the program and its beneficiaries.  CMS Ex. 2 at 1. 

Petitioner requested reconsideration.  In a reconsidered determination, dated September 1, 2020, a CMS hearing officer upheld the denial, characterizing Petitioner Van Nostrand’s actions as “cruel, heinous, reprehensible,” and demonstrating “that he does not value all life forms and lacks sound judgment in high stress situations.”  The determination also finds that Petitioner failed to demonstrate respect for life and for the property of others, which are important attributes for those who provide medical and medical-related services. 

It is quite significant that one of his convictions was based on torture.  The integrity of the Medicare program requires that suppliers exercise prudent judgment and the respect for life in providing healthcare services and appropriately accessing the Trust Funds.  Therefore, it stands to reason that a supplier who has utter disregard for others’ property and has been convicted of an offense involving torture may be detrimental to the Medicare program and its beneficiaries if allowed to participate.

CMS Ex. 1 at 3.  The determination also pointed out that Petitioner Van Nostrand’s chiropractic license had been suspended, which “gives credence” to the notion that his offense is detrimental to the Medicare program and its beneficiaries.  Id.

Petitioner timely appealed and that appeal is now before me.

CMS has moved for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 5-6 (¶¶ 8, 9, 10) (September 9, 2020).  The matter may therefore be decided based on the written record, without considering whether the standards for summary judgment are satisfied.

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CMS has submitted its pre-hearing brief/motion for summary judgment (CMS Br.) and eleven exhibits (CMS Exs. 1-11).  Petitioner has submitted a written argument, titled “Motion in Limine” (P. Br.) and seven exhibits (P. Exs. 1-7). 

Petitioner objects to two of CMS’s exhibits:  CMS Ex. 1, which is the reconsidered determination, and CMS Ex. 11, which is a news account of Petitioner’s criminal trial. 

With respect to CMS Ex. 1, Petitioner complains that the contractor hearing officer conducted her own research and relied on hearsay evidence obtained from third-party sources in reaching her decision.  He faults her for not considering Grand Jury transcripts, claiming that he offered to provide them but that “[t]his was not acted upon.”  P. Br. at 2.  I’m not sure how he would have produced those transcripts since Grand Jury proceedings generally cannot be disclosed.  Assuming he has access to them and thought that they “had a bearing on the decision,” he was free to submit them to the hearing officer, as the contractor’s notice letter advised.  CMS Ex. 2 at 3.  The hearing officer was not obligated to request them. 

Nor was the hearing officer limited to considering the evidence Petitioner produced.  One can argue about the quality of any evidence she proposes and can offer countervailing evidence, but the fact that she may have considered evidence that Petitioner deems unreliable would not make her determination inadmissible.  In any event, on the face of the determination, it appears that she relied primarily on the felony convictions themselves rather than any extraneous reporting of them.

Moreover, the reconsidered determination is a jurisdictional document, which means that it’s not only relevant, it’s fundamental.  Petitioner is entitled to administrative law judge review of a reconsidered determination.  Without a reconsidered determination, I would not have the authority to hear Petitioner’s appeal.  42 C.F.R. § 498.5(d)(2).  Whether it is admitted as an exhibit (which makes it easier to cite) or not, the reconsidered determination must be part of this record. 

Petitioner’s objection to CMS Ex. 11, the news account of his trial, has more merit.  It is obviously hearsay, inadmissible under the Federal Rules of Evidence, and, given its purported source, may well be biased, although Petitioner has not established any particular bias.  Petitioner complains that its author did not attend the Grand Jury proceedings, which seems irrelevant since the article describes Petitioner’s criminal trial and its outcome.  Moreover, the critical elements of the article (Petitioner’s convictions) are supported by other unassailable evidence – his felony conviction and sentencing (CMS Ex. 5) and his Virginia license suspension (CMS Ex. 4).  Petitioner was free to challenge any of the facts set forth in the article and to submit countervailing evidence.  Although I need not give it great weight, I am bound to admit evidence that is relevant and material.  42 C.F.R. § 498.60(b)(1).  And I am not bound by the Federal Rules of

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Evidence.  42 C.F.R. § 498.61.  I find that CMS Ex. 11 is relevant and material and should be admitted, although it may not be entitled to much weight. 

I therefore admit into evidence CMS Exs. 1-11 and P. Exs. 1-7.

Discussion

CMS may deny Petitioner Van Nostrand enrollment in the Medicare program because, within the last ten years, he was convicted of felonies that CMS reasonably finds detrimental to the best interests of the Medicare program and its beneficiaries.1

CMS, acting on behalf of the Secretary of Health and Human Services, may deny a supplier’s Medicare enrollment if, within the preceding ten years, he was convicted of a federal or state felony offense that CMS “determines is detrimental to the best interests of the program and its beneficiaries.”  42 C.F.R. § 424.530(a)(3); see also Social Security Act (Act) §§ 1842 (h)(8) (authorizing the Secretary to deny enrollment to a physician who has been convicted of a felony offense that the Secretary has determined is “detrimental to the best interests of the program or program beneficiaries”) and 1866(b)(2)(D) (authorizing the Secretary to deny enrollment after he ascertains that the provider has been convicted of a felony that he “determines is detrimental to the best interests of the program or program beneficiaries.”). 

Offenses for which billing privileges may be denied include – but are not limited to – felony crimes against persons, such as murder, rape, assault, and similar crimes; financial crimes; a felony that places the Medicare program or its beneficiaries at immediate risk (such as malpractice); and felonies that would result in mandatory exclusion under section 1128 of the Act.  42 C.F.R. § 424.530(a)(3)(i)(A)-(D).  Section 1128 crimes include:  program-related crimes; crimes related to the neglect or abuse of patients in connection with the delivery of a healthcare item or service; crimes relating to health care fraud; and crimes relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  See 42 C.F.R. § 1001.101.

Here, although the evidence underlying Petitioner Van Nostrand’s convictions is sketchy, it seems that he and his son were hunting with bows and arrows.  Another hunter texted that two dogs (German Shepherds) were in the area, chasing deer.  Petitioner responded with a text.  Its contents may have instructed the other hunters to shoot the dogs or he may have told them that he would “take care of it.”  When the dogs appeared, Petitioner and his son were on a hunting platform, fifteen feet in the air.  He shot one of the dogs twice with his bow and arrow, killing it; the other dog ran way.  Although Petitioner argued that he was afraid of dogs, felt threatened by them, and so acted in self-defense,

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the jury did not accept his version of events and found him guilty.  CMS Exs. 10, 11.  On March 30, 2016, the court convicted him of two felonies:  destruction of personal property worth more than $1,000, in violation of Virginia Code § 18.2-137, and animal torture causing death, in violation of Virginia Code § 3.2-6570.  CMS Ex. 5.  

The court sentenced Petitioner to 90 days in jail followed by two years of probation.  He was fined $2,500 and ordered to pay $5,000 in restitution to the dog’s owner and $2,118 in court costs.  CMS Ex. 5 at 2. 

Based on his convictions, the Virginia Department of Health Professions suspended indefinitely Petitioner Van Nostrand’s license to practice chiropractic.  CMS Ex. 4.

So long as CMS establishes a legal basis for its action, I must sustain the denial of enrollment.  Stephen White, M.D., DAB No. 2912 at 14 (2018); Letantia Bussell, M.D., DAB No. 2196 at 13 (2008).  Although Petitioner’s crimes are not among those specified in the regulation, CMS has broad authority to determine which felonies are detrimental to the best interests of the program and its beneficiaries.  The categories of cases listed in the regulation were not intended to be exhaustive.  “It would be impossible to identify . . . every felony that could result in a denial.”  79 Fed. Reg. 72500, 72511 (Dec. 5, 2014).  CMS determines, on a case-by-case basis, whether the felony conviction is detrimental to the Medicare program and its beneficiaries.  White, DAB No. 2912 at 15, and cases cited therein.  In making that determination, CMS should consider the severity of the underlying felony.  Id. at 9.

Petitioner submits minimal evidence regarding the crimes themselves.  His motion objecting to CMS’s exhibits does not describe any factual disputes, and he submits nothing from the criminal trial describing the incident.  Instead, he offers portions of his testimony from the sentencing phase.  There, he testified that he was afraid of dogs and acted “in a natural reactive mode for the situation that I was in.”  P. Ex. 3.  He also testified that he had undergone brain surgery in the past, which affected his decision-making skills.  P. Ex. 3. 

After the incident with the dogs and while criminal charges were pending, Petitioner consulted a therapist, who also testified during the sentencing phase, and Petitioner offers her testimony.  She said that, because of his brain surgery, when stressed, he makes decisions instantaneously, “based on what happened in the past, based on emotion.”  P. Ex. 4.  In therapy, he told her that, as a child, he had been traumatized by German Shepherds, which caused him to respond the way he did.  P. Ex. 4. 

That Petitioner was fully responsible for his actions was settled by his criminal convictions.  He was convicted of “unlawfully” destroying property valued at more than $1,000.  Virginia Code § 18.2-137.  More damaging to his case, he was convicted under the animal torture statute, which provides that any person who “tortures, willfully inflicts

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inhumane injury or pain . . . or cruelly and unnecessarily beats, maims, or mutilates any dog or cat that is a companion animal” and, as a direct result, causes serious bodily injury or the animal’s death is guilty of a felony.  Virginia Code § 3.2-6570.

CMS thus acted well within its discretion when it found detrimental to the Medicare program and its beneficiaries felonies that evidence disregard for the property of others and, worse, for an animal’s suffering. 

Nor am I persuaded that evidence of his mental impairment makes him less of a risk to the program.  The trial court was not persuaded that it mitigated his culpability, sentencing him to jail time.  Moreover, having a mental impairment that affects his judgment and impairs his decision-making skills to such a degree that he cannot be held responsible for killing someone’s dog hardly recommends him for participation in the Medicare program.

Conclusion

CMS justifiably determined that Petitioner Van Nostrand was convicted of felonies detrimental to the best interests of the Medicare program and its beneficiaries and may therefore deny his Medicare enrollment application.  I therefore affirm CMS’s determination.

• 1. I make this one finding of fact/conclusion of law to support my decision.