Blair Allen Nelson, M.D., DAB CR5462 (2019)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining the determination of a Medicare contractor to revoke the Medicare billing privileges of Petitioner, Blair Allen Nelson, M.D. I make no findings about the reasonableness of the duration of that revocation – a three-year bar on Petitioner's re-enrollment – because I have no authority to address that issue.

I. Background

CMS moved for summary judgment and Petitioner opposed the motion. With its motion, CMS filed exhibits that it identified as CMS Ex. 1 – CMS Ex. 9. In opposing the motion, Petitioner filed exhibits that he identified as P. Ex. 1 – P. Ex. 11. I do not receive these exhibits into evidence inasmuch as I issue summary judgment based on undisputed material facts. I cite to some of these exhibits, but only to illustrate facts that are not in dispute.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether CMS, acting through its contractor, may revoke Petitioner's Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

CMS is authorized to revoke participation in Medicare pursuant to the provisions of 42 C.F.R. § 424.535. This regulation provides, at 42 C.F.R. § 424.535(a)(3), that CMS may revoke a supplier's enrollment where the supplier was convicted, within the preceding 10 years, of a Federal or State felony that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries. The regulation lists felonies that justify revocation of enrollment. That list includes any felonies that would result in mandatory exclusion from participation in Medicare pursuant to section 1128(a)(4) of the Social Security Act (Act). 42 C.F.R. § 424.535(a)(3)(ii)(D). Section 1128(a)(4) of the Act mandates the exclusion of any individual convicted of a felony, under Federal or State law, relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

The law is clear. CMS may revoke the Medicare billing privileges of any individual who is convicted of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Nothing in the law suggests that CMS must take into account equitable considerations in deciding whether to revoke enrollment.

The undisputed facts establish that Petitioner was convicted of a felony within the meaning of section 1128(a)(4) of the Act. Consequently, CMS, or one of its contractors, may revoke Petitioner's Medicare billing privileges. On November 10, 2015, the United States District Court for the District of Minnesota entered a judgment of conviction against Petitioner predicated on Petitioner's previously-filed guilty plea to a federal felony charge. CMS Ex. 6 at 1-2. Petitioner pled guilty to the charge of obtaining a controlled substance by fraud, a felony, in violation of 21 U.S.C. §§ 843(a)(3) and 843(d)(1). CMS Ex. 4; CMS Ex. 5.

In pleading guilty, Petitioner admitted that he had knowingly and intentionally acquired and obtained possession of controlled substances by fraud, deception, and subterfuge. CMS Ex. 5 at 3. During a period of more than a year, Petitioner issued prescriptions for controlled substances, including oxycodone, hydrocodone, and amphetamines, to various members of his family when, in fact, he converted for his own use these prescriptions and the drugs that he obtained. Id. at 1-2.

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CMS characterizes Petitioner's conviction as being "similar" to a conviction for unlawful prescription of a controlled substance as is described at section 1128(a)(4). In fact, the conviction was more than similar to a conviction falling within the reach of that section. It is a conviction for the unlawful prescription of a controlled substance. Prescribing controlled substances under false pretenses is precisely the type of crime that section 1128(a)(4) encompasses. Consequently, there is no doubt that CMS or its contractor may revoke Petitioner's Medicare billing privileges, because Petitioner was convicted of a felony falling explicitly within the reach of section 1128(a)(4) and described at 42 C.F.R. § 424.535(a)(3)(ii)(D).

As I have discussed, the re-enrollment bar in this case is for a period of three years. I have no authority to address the merits of that bar. The duration of a bar on re-enrollment is not an initial determination, as described at 42 C.F.R. § 498.3, that creates a right to a hearing. Vijendra Dave, M.D., DAB No. 2672 at 9 (2016).

I have considered Petitioner's arguments challenging both the revocation determination and the re-enrollment bar and I find them to be unavailing.

Petitioner argues, first, that CMS has no authority to revoke his billing privileges, asserting that his conviction does not fall within one of the felonies enumerated in 42 C.F.R. § 424.535(a)(3). Petitioner's Opposition to CMS's Motion for Summary Judgment and Prehearing Brief (Petitioner's brief) at 8-12. Petitioner asserts that CMS's determination that his conviction was for a crime "similar" to an offense described at section 1128(a)(4) of the Act means, effectively, that he was not convicted of any crime described in the regulation. Petitioner argues that CMS improperly attempts to shoehorn his conviction into a category into which that conviction simply doesn't fit.

However, and as I have explained, Petitioner's conviction is not of a felony that is "similar" to a section 1128(a)(4) felony; it is a conviction of a section 1128(a)(4) felony. CMS's choice of words describing the conviction is irrelevant. What matters here is that Petitioner was convicted of a crime – unlawfully prescribing controlled substances – that falls squarely within the reach of section 1128(a)(4) of the Act.

As an aspect of his argument, Petitioner asserts that CMS's determination to revoke his Medicare billing privileges is "constitutionally infirm." Petitioner's brief at 10. It is not clear what Petitioner means by this assertion. He has offered nothing to suggest that either section 1128(a)(4) of the Act or implementing regulations violate the United States Constitution. In any event, I have no authority to consider Petitioner's argument because my delegated authority does not extend to resolving challenges to the Act or regulations on constitutional grounds.

Petitioner also asserts that CMS has no grounds to assert that his conviction establishes that his underlying conduct is materially detrimental to the Medicare program. Petitioner

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argues that the facts establish that he is not only a reliable supplier of health care but that he is an asset to his community. Petitioner's brief at 1-7, 10-11. However, CMS's determination does not rest on a weighing of equities. Petitioner's conviction of a felony as is described by section 1128(a)(4) of the Act gives CMS authority to revoke Petitioner's billing privileges as a matter of law, without necessitating a weighing of the equitable pros and cons of doing so.

Petitioner argues that CMS's revocation of his Medicare billing privileges constitutes a violation of his due process rights under the United States Constitution. Petitioner's brief at 12-13. He asserts that his Medicare billing privileges are a "property right" and that CMS abrogated that right without affording him due process. I have no authority to hear this argument for reasons that I have explained.

Finally, Petitioner contends that the determination to revoke his Medicare billing privileges and the imposition of a three-year re-enrollment bar are arbitrary, capricious, and abuses of discretion by CMS and its contractor. Petitioner's brief at 13-15. I have explained how the Act and implementing regulations authorize CMS's determination to revoke Petitioner's Medicare billing privileges. The determination to revoke is neither arbitrary nor an abuse of discretion by CMS because governing law and regulations specifically authorize it.

As for the re-enrollment bar, Petitioner's argument boils down to assertions that the bar is unfair given his unique personal circumstances and that it contravenes CMS's mission to expand access to affordable health care and to improve the delivery of health care in the United States. I may not consider these arguments for the reason that I have explained: I have no authority to consider Petitioner's challenge to the length of a re-enrollment bar because that is not an initial determination that gives rise to hearing rights.