David Wulff, DAB CR6066 (2022)

DECISION

This decision affirms the determination by the Centers for Medicare & Medicaid Services (CMS) to place Petitioner, David Wulff, on its Preclusion List and to deny Petitioner’s Medicare enrollment application.

I. Background and Procedural History

Petitioner is a Physician’s Assistant (PA) who was licensed in Indiana.  CMS Exhibit (Ex.) 1 at 32.  On or around October 7, 2013, Petitioner was charged with dealing in narcotics and controlled substances, forgery, and acquiring controlled substances by fraud.  A search by federal, state and local authorities found that Petitioner’s supervising physician pre-signed prescription forms that Petitioner used to write illegal prescriptions.1   CMS Ex. 2.  On November 13, 2015, Petitioner, as part of a plea agreement, pled guilty

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to one count of Forgery, a class C Felony, in the Fayette Circuit Court, an Indiana state court, in violation of Indiana Code § 35-43-5-2(b)(1). CMS Ex. 3. The court sentenced Petitioner to a total of eight years of incarceration—four years of home detention and the remaining four years suspended to probation. The court also ordered Petitioner to complete 2,080 hours of community service and pay a $5,000 fine. CMS Ex. 1 at 23-25; CMS Ex. 3 at 8.

By letter dated March 31, 2016, the Inspector General for the U.S. Department of Health & Human Services (IG) notified Petitioner he was subject to a five-year exclusion from all federal health care programs because of the felony conviction.  The IG excluded Petitioner for a five-year period, effective April 20, 2016.  CMS Ex. 1 at 26.  On April 21, 2021, the IG reinstated Petitioner’s eligibility to participate as a provider of items and services covered by Medicare.  Id. at 30.

On June 9, 2016, CMS notified Petitioner that his Medicare billing privileges were revoked, effective April 20, 2016, based on his felony conviction.  Id. at 21.  Petitioner did not request reconsideration, making CMS’s determination administratively final.  Id. at 3.

Petitioner applied to reactivate his Medicare enrollment and billing privileges as a supplier on June 24, 2021.  Id. at 17.  In the application, Petitioner properly identified his convictions, the revocation of his PA license, and the IG exclusion action.  Id. at 19.  Petitioner also provided documentation with his application confirming that the State of Indiana had reinstated his PA license on a probationary basis.  Id. at 32-33.

On June 29, 2021, CMS, through its Medicare administrative contractor Wisconsin Physicians Service (WPS), notified Petitioner that his Medicare enrollment application was denied, pursuant to 42 C.F.R. § 424.530(a)(3) and that he was being placed on the CMS Preclusion List.  Id. at 14-16.  Petitioner requested reconsideration on June 30, 2021.  Id. at 11.

On September 22, 2021, CMS notified Petitioner that his request for reconsideration was denied and the hearing officer affirmed the denial of his enrollment application.  CMS Ex. 1 at 1-6.  The hearing officer found that Petitioner’s felony conviction in the preceding 10 years was per se detrimental to the Medicare program because it resulted in his mandatory exclusion by the IG pursuant to section 1128(a) of the Act.  Id. at 4.  The hearing officer also concluded that denial was appropriate because Petitioner’s felony conviction was, in its own particular circumstances, detrimental to the best interests of the Medicare program and its beneficiaries.  Id.  In addition, the hearing officer upheld Petitioner’s placement on the preclusion list.  CMS Ex. 1 at 5-6.

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Petitioner timely requested a hearing before an Administrative Law Judge (ALJ) to contest the denial of his Medicare enrollment application and placement on the CMS Preclusion List.  Request for Hearing (RFH).

On November 2, 2021, at my direction, the Civil Remedies Division (CRD) issued an acknowledgement letter and my standing prehearing order (Standing Order), which set forth a schedule for briefing and submitting supporting evidence and other procedural requirements.

On December 7, 2021, CMS filed a Motion for Summary Judgment and supporting memorandum and brief (CMS Br.), along with three exhibits (CMS Exs. 1-3).  Petitioner did not timely submit a prehearing exchange, and an Order to Show Cause was issued on January 12, 2022.  On January 27, 2022, Petitioner filed a letter in response to the Order to Show Cause (P. Br.).  Petitioner did not file any exhibits.

II. Admission of Exhibits and Decision on the Record

Petitioner did not object to CMS’s proposed exhibits.  Therefore, CMS Exhibits 1 through 3 are admitted into evidence and entered into the record.

Similarly, neither party identified witnesses to testify in this matter or requested cross‑examination of an opposing party’s witnesses.  Consequently, an in-person hearing is not necessary, and this decision will be issued based on the written record.  Civ. R. Div. P. § 19(d).  CMS’s motion for summary judgment is denied as moot.

III. Issues

Whether CMS has a legitimate basis to deny Petitioner’s enrollment application seeking Medicare billing privileges under 42 C.F.R. § 424.530(a)(3); and

Whether CMS had a legal basis to place Petitioner on its preclusion list, as defined at 42 C.F.R. §§ 422.2 and 423.100.

IV. Jurisdiction

This tribunal has jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(l)(2).

V. Legal Authorities

As a PA, Petitioner is a supplier of health care services for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.20(b)(1).  In order to participate in the Medicare program as a supplier, an individual must meet certain criteria

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to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may deny a supplier’s enrollment application for Medicare billing privileges for any reason stated in 42 C.F.R. § 424.530.  This includes the existence of a felony conviction:

(a)  Reasons for denial.  CMS may deny a . . . supplier’s enrollment in the Medicare program for the following reasons:

* * * *

(3)  Felonies.  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.

(i) Offenses include, but are not limited in scope or severity to-

(A) Felony 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.
(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.
(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that results in a conviction of criminal neglect or misconduct.
(D) Any felonies that would result in mandatory exclusion under section 1128(a) of the Act.

(ii) Denials based on felony convictions are for a period to be determined by the Secretary, but not less than 10 years from the date of conviction if the individual has been convicted on one previous occasion for one or more offenses.

42 C.F.R. § 424.530(a)(3).

CMS may place on the preclusion list any “individual or entity, regardless of whether they are or were enrolled in Medicare, [that] has been convicted of a felony under Federal

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or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.”  42 C.F.R. §§ 422.2, 423.100; see 84 Fed. Reg. 15,680, 15,828, 15,840 (Apr. 16, 2019) (definitions of “Preclusion list” effective January 1, 2020).  Medicare Advantage organizations and Medicare Part D plan sponsors may not provide reimbursement for any items or services furnished by an individual or entity on CMS’s preclusion list, or for prescriptions the individuals write.  42 C.F.R. §§ 422.2, 422.222, 422.224, 423.100, and 423.120(c)(6).  In determining whether a felony conviction is detrimental to the best interests of the Medicare program, CMS considers:

(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; see 84 Fed. Reg. at 15,828, 15,840.

If CMS places an individual on the preclusion list based on a felony conviction, the individual will remain on the preclusion list for a 10-year period, beginning on the date of the conviction, unless CMS determines that a shorter length of time is warranted.  In deciding as to whether a shorter term of preclusion is appropriate, CMS considers:

(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; 84 Fed. Reg. at 15,832, 15,840-41.

A felony offense specifically identified in the regulations governing enrollment denial is considered detrimental per se, or as a matter of law.  42 C.F.R. § 424.530(a)(3)(i); Letantia Bussell, M.D., DAB No. 2196 at 9 (2008).  An ALJ does not have discretion to disregard findings that CMS has made via rulemaking.  Bussell, DAB No. 2196 at 13 n.13 (“Once the Secretary . . . has exercised that authority by regulation as to a class of felonies, an ALJ cannot revisit that determination in an individual case where the conviction of an offense in the class is undisputed.”).

A felony offense not specifically listed in the regulations, but which is similar to such an offense, can also provide the basis for denial of enrollment; in that case, an ALJ must look to the circumstances surrounding the conviction to assess similarity.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 11 (2009), aff’d Ahmed v. Sebelius, 710 F.Supp. 2d 167 (D. Mass. 2010) (affirming the ALJ’s consideration of facts and circumstances underlying the offense of conviction to assess its similarity to one of the financial crimes identified as per se detrimental).

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Finally, even if a felony offense is not specifically listed or similar to those listed in the regulations, CMS may determine, on a case-by-case basis, that a felony conviction is detrimental to the best interests of the Medicare program and program beneficiaries.  Brenda Lee Jackson, DAB No. 2903 at 8 (2018); Fady Fayad, M.D., DAB No. 2266 at 16-17 (2009), aff’d, Fayad v. Sebelius, 803 F. Supp. 2d 699, 704 (E.D. Mich. 2011).  In that instance, it must be determined whether CMS’s determination that a felony offense is detrimental to the best interests of the program and its beneficiaries is reasonable.  Fayad, DAB No. 2266 at 16-17 (providing the Board would have affirmed an individualized determination by CMS that a felony offense was detrimental because CMS drew a reasonable inference from the nature and circumstances of the Petitioner’s offense).

VI. Findings of Fact, Conclusions of Law, and Analysis2

1. Petitioner was convicted of a felony offense within 10 years preceding his application for enrollment.

On November 13, 2015, Petitioner pleaded guilty to one count of Forgery, a class C Felony, in violation of Indiana Code § 35-43-5-2(b)(1).  CMS Ex. 3 at 8.  Petitioner applied for reactivation of his Medicare billing privileges on June 24, 2021, more than five years after the date of his felony conviction.  CMS Ex. 1 at 17-20.  Therefore, Petitioner’s felony conviction occurred within 10 years preceding the request for reenrollment.  An application for enrollment may be denied if the applicant has a felony conviction within 10 years preceding the enrollment application.  42 C.F.R. § 424.530(a)(3).

2. Petitioner’s felony conviction was per se detrimental to the best interests of the Medicare program and its beneficiaries because it resulted in his mandatory exclusion under section 1128(a) of the Act.

The Secretary of the Department of Health & Human Services has the authority to determine which offenses are detrimental to Medicare and its beneficiaries.  42 U.S.C. § 1395u(h).  The regulations identify felonies that are per se detrimental – making them, as the Board has observed, “detrimental to Medicare and its beneficiaries as a matter of law – that is, without regard to the circumstances underlying a particular supplier’s conviction.”  John Hartman, D.O., DAB No. 2564 at 4 (2014).  Felony offenses deemed to be per se detrimental include “[a]ny felonies that would result in mandatory exclusion under section 1128(a) of the Act.”  42 C.F.R. § 424.530(a)(3)(i)(D).  The evidence shows that Petitioner was excluded by the IG under section 1128(a)(4) of the Act as a result of his felony forgery conviction.  CMS Ex. 1 at 26.  Section 1128(a)(4) of the Act mandates that the Secretary exclude an individual from participation in any federal health care program if the individual has been convicted, after August 21, 1996, of a felony “relating

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to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  Act § 1128(a)(4).

Petitioner was convicted of a felony offense in 2015.  Petitioner’s conviction involved prescribing drugs using pre-signed prescription forms signed by Petitioner’s supervising physician.3   CMS Ex. 2; P. Br. at 1.  As a result of his actions, Petitioner was sentenced to 8 years of incarceration, with four years suspended for probation and four years of home detention, in addition to 2,080 hours of community service.  CMS Ex. 1 at 23, 24.  Based on the foregoing facts, it is evident that Petitioner’s criminal acts were related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Petitioner’s conviction for felony forgery subjected him to mandatory exclusion by the IG under section 1128(a)(4) of the Act.  Accordingly, this offense is per se detrimental to the best interests of the Medicare program and its beneficiaries.  Therefore, CMS had a legal basis to deny Petitioner’s enrollment application.

3. CMS exercised its discretion to determine that Petitioner’s felony conviction for forgery was detrimental to the best interests of the Medicare program and its beneficiaries.

Petitioner does not contest the facts or circumstances surrounding his denial based on a felony conviction occurring within the 10 years preceding his enrollment application.  However, Petitioner argues that CMS erred by failing to exercise discretion when denying his enrollment application pursuant to 42 C.F.R. § 424.530(a)(3).4   P. Br. at 1-2.  Petitioner asserts that the severity of his conviction “should be weighed into the decision,” because the regulations do not make it mandatory for CMS to deny his application.  Id. at 2.  Petitioner maintains that his actions were not “malicious” and he “did no harm to patients or CMS.”  Id.

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However, Petitioner’s argument is without merit.  The regulations do not require that CMS expressly state awareness of its discretion not to deny enrollment under one of the bases found at 42 C.F.R. § 424.530.  In the reconsidered determination, CMS separately addressed Petitioner’s forgery conviction.  The CMS hearing officer stated:

Additionally, based on the specific facts and circumstances underlying [Petitioner’s] conviction, CMS has determined that the offense committed by [Petitioner] is detrimental to the Medicare program and its beneficiaries.  [Petitioner] committed forgery related to the unlawful manufacture, distribution, prescription or dispensing of controlled substance . . . .  CMS considers such an act to be a severe threat to the safety of its Medicare beneficiaries.  [Petitioner’s] conduct calls into question his integrity in treating patients and demonstrates his reckless disregard for the health and safety of Medicare beneficiaries.  This type of criminal behavior is dangerous and puts the health and safety of Medicare beneficiaries at risk.

[Petitioner’s] conduct not only resulted in him being excluded by the HHS-OIG, but also led to an imposition of probation on his Physician Assistant’s (PA) license by the State of Indiana.  These actions by other agencies is further evidence that his felony conviction is serious in nature and a threat to patients’ safety.  In fact, the State of Indiana lists his conviction on his PA license as “harmful to the public” . . . .  CMS agrees with this assessment.

CMS Ex. 1 at 4.  The evidence shows that CMS conducted a case-specific inquiry and exercised its discretion to determine that Petitioner’s offense of forgery was detrimental to the Medicare program and its beneficiaries.  The hearing officer considered the circumstances of Petitioner’s conviction, noting that Petitioner’s criminal acts entailed forgery related to the unlawful manufacture, distribution, prescription or dispensing of a controlled substance.  Id.  The hearing officer concluded that Petitioner posed a risk to the Medicare program.  Petitioner argues that his actions did not harm any patients, nor did he present a risk to Medicare.  However, Petitioner’s arguments fail to consider that forgery is an offense that calls into question integrity and trustworthiness.  CMS Ex. 1.  Though Petitioner paints a vastly different picture than CMS of the events that led to his conviction, the fact remains that he was convicted and excluded from federal healthcare programs based on the offense.

The hearing officer also acknowledged that the IG reinstated Petitioner’s Medicare eligibility and the period of Petitioner’s re-enrollment bar has lapsed.  However, CMS’s

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regulatory authority regarding the approval or denial of enrollment for providers and suppliers in the Medicare program is separate and distinct from the authority of other agencies.  CMS Ex. 1 at 4.  The mere existence of a mandatory exclusion for a felony conviction occurring within the 10 years preceding an enrollment application is a sufficient basis for denial of enrollment.  42 C.F.R. § 424.530(a)(3)(i)(D).

Petitioner argues that the ALJ should determine whether CMS failed to exercise its discretion to deny his enrollment application.  P. Br. at 1.  However, my role is to determine whether CMS established a legal basis to take enforcement action against Petitioner, not whether CMS should or should have not exercised its discretion in his favor.  John A. Hartman, D.O., DAB No. 2911 at 21 (2018) (“The authority to balance equitable considerations with risks to the program and beneficiaries rests with CMS, while our role is to evaluate if CMS’s action is legally authorized.”).

Therefore, with respect to Petitioner’s felony offense, CMS has established it had the authority to deny Petitioner’s enrollment based on his felony conviction for a per se detrimental offense that occurred within the 10 years preceding his enrollment application.  CMS exercised discretion based on its assessment of Petitioner’s conviction and the identified mitigating circumstances.  As such, CMS’s denial of Petitioner’s enrollment application under 42 C.F.R. § 424.530(a)(3) is affirmed.

4. CMS had a legal basis to add Petitioner to the CMS Preclusion List, effective September 22, 2021, the date of the reconsidered determination.

Petitioner argues that CMS should not have placed him on the preclusion list and that the regulation “doesn’t say that CMS cannot remove a provider from the preclusion list prior to 10 years.”  Petitioner also argues that “his conduct of the felony forgery conviction is not detrimental to the best interests of the Medicare program.”  Petitioner noted that his license has been reinstated on probation “for different reasons than what [the hearing officer] has proposed.”  Petitioner maintains that there was “no mention of doing any harm to any patient” and there was “no financial crime and no risk to Medicare.”

In the reconsidered determination, the hearing officer explained that Petitioner’s felony conviction satisfied the regulatory requirements for placement on the preclusion list.  CMS Ex. 1 at 4-6; 42 C.F.R. §§ 422.2 and 423.100.  The hearing officer found that Petitioner was convicted of a felony within the preceding 10 years and determined that the conviction was detrimental to the best interests of the Medicare program.  In making the determination, the hearing officer considered the three factors listed in 42 C.F.R. §§ 422.2 and 423.100:  the severity of the offense; when the offense occurred; and any other information that CMS deemed relevant to its determination.  CMS Ex. 1 at 5-6.

First, CMS found that Petitioner’s felony offense was “severe in nature, and it is a health care related offense.”  CMS Ex. 1 at 5.  The CMS hearing officer explained:

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[Petitioner’s] felony conviction was a direct result of his lack of integrity in his practice as a PA.  The safety of beneficiaries is of paramount concern to CMS, and the practice of medicine requires the use of good judgment.  This type of conduct displays dishonest behavior, a lack of good judgment, and a disregard for state and federal laws.  This criminal conduct reflects negatively on [Petitioner’s] ethics and professionalism as a PA.  [Petitioner] exercised poor judgment when he committed forgery. As a result, CMS finds that [Petitioner’s] felony conviction, which led to the denial of his Medicare enrollment application, is severe.

Id.  While the hearing officer acknowledged that the offense took place “several years ago,” he explained that “CMS finds that the severity of the offense and the fact that it implicates [Petitioner’s] lack of sound judgment and his disregard for the safety of his patients and state laws are indications that his placement on the CMS Preclusion List is appropriate.”  CMS Ex. 1.

CMS also found it relevant that the IG and the State of Indiana took adverse actions against Petitioner for the conduct that led to his felony conviction.  The hearing officer noted that at the time of the decision, Petitioner’s PA license was still listed as on probation and his actions were listed as “harmful to the public” by the State of Indiana.  CMS Ex. 1.  The hearing officer also noted that Petitioner’s conviction for forgery was an enumerated offense under 42 C.F.R. § 424.530(a)(3)(i)(D) because it was a felony that subjected Petitioner to mandatory exclusion under section 1128(a)(4) of the Act.  CMS Ex. 1.  Although the IG reinstated Petitioner’s eligibility to participate in the Medicare program, the hearing officer correctly noted that the IG’s authority is separate and apart from CMS’s authority to deny a supplier’s enrollment in the Medicare program.  Id.

Further, CMS found Petitioner’s felony conviction for forgery to be “the type of conduct that the CMS Preclusion List was specifically created to prevent Medicare providers or suppliers from engaging in.”  CMS Ex. 1 at 5.  The hearing officer concluded:

[P]ayment under the Medicare program is made for claims submitted in a manner that relies upon the trustworthiness and best judgment of our Medicare partners.  [Petitioner’s] felonious behavior indicates to CMS that the Medicare Trust Funds may be at risk if [Petitioner] is allowed to participate in the Medicare program.  Therefore, CMS believes that the denial of [Petitioner] enrollment and placement on the CMS Preclusion List is appropriate and well supported by the facts underlying this case.

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CMS Ex. 1 at 5.  Contrary to Petitioner’s assertions, CMS carefully considered the relevant regulatory factors listed in 42 C.F.R. §§ 422.2 and 423.100.  Based on the analysis, the CMS hearing officer determined that Petitioner’s felony offense was severe, and that Petitioner’s criminal acts represented a lack of sound judgment and disregard for the safety of his patients and state laws.  The hearing officer also determined that Petitioner’s actions posed a risk to patient safety and showed that he posed a threat to the Medicare Trust Funds if he were enrolled in the program.  In addition to Petitioner being convicted of offenses specifically enumerated under 42 C.F.R. § 424.530(a)(3)(i), the hearing officer also considered Petitioner’s conviction for forgery to be a “direct result of his lack of integrity in his practice,” and Petitioner’s conduct “reflects negatively on [his] ethics and professionalism as a PA.”  Id.

I do not find error in CMS’s analysis.  The record establishes that, within the 10 years preceding his Medicare enrollment application, Petitioner was convicted of a felony offense in which CMS determined to be detrimental to the best interests of the Medicare program and its beneficiaries.  The CMS hearing officer considered the appropriate regulatory factors and justifiably determined that Petitioner’s placement on the preclusion list should be upheld effective September 22, 2021, the date of the reconsidered determination.  CMS Ex. 1 at 6; 42 C.F.R. §§ 422.222(a)(3)(i)(B), 423.120(c)(6)(v)(C)(l)(ii).  Although CMS did not indicate how long Petitioner would remain on the preclusion list, the regulations provide that Petitioner will be on the list for a 10-year period, beginning on the date of his felony conviction, unless CMS determines that a shorter length of time is warranted.  42 C.F.R. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).  Neither party offered any arguments or evidence to show that CMS determined the duration to be less than 10 years; accordingly, Petitioner will be on the preclusion list until November 13, 2025, 10 years from the date of his felony conviction.

Although Petitioner argues that CMS should have exercised its discretion and not placed him on the preclusion list because there were no identified victims and the crime was not financial in nature, the language set forth in 42 C.F.R. §§ 422.2 and 423.100 states that one who has a felony conviction “within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program” is subject to placement on the

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preclusion list.5 Petitioner’s felony offense of forgery is an offense enumerated in 42 C.F.R. § 424.530(a)(3)(i) as an offense that results in mandatory exclusion under section 1128(a) of the Act, and is therefore treated by CMS to be per se detrimental to the Medicare program.  CMS alone is authorized to weigh equitable concerns against the risks to the Medicare program.  If CMS’s action is legally authorized, as found here, then it must be upheld.  Hartman, DAB No. 2911 at 21; Wendell Foo, M.D., DAB No. 2904 at 25 (2018) (The Board “has repeatedly confirmed that neither it nor the ALJs have authority to overturn a legally valid agency action on equitable grounds or otherwise grant equitable relief.”).

VII. Conclusion

CMS has established a legal basis to deny Petitioner’s Medicare enrollment application and to include Petitioner on its preclusion list.  Therefore, the denial of Petitioner’s Medicare enrollment application under 42 C.F.R. § 424.530(a)(3) and the inclusion of Petitioner on the CMS Preclusion List, effective September 22, 2021, are affirmed.

1. Caz Burdette, Two Doctors, Physician Assistants Face Forged Prescription Charges– WRBI Radio, https://www.duboiscountyherald.com/news/state/2-ind-docs-assistant-arrested-on-drug-charges/article_a629cd9d-fc4e-5090-9944-0d2fa7fd2797.html (last visited Mar. 17, 2022).
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2. My findings of fact and conclusions of law are set forth in italics and bold font.
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3. See supra note 1. The only description of the details of Petitioner’s felony conviction is included in a news article submitted by CMS.
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4. The prefatory language of 42 C.F.R. § 424.530(a) indeed states “CMS may deny a provider’s or supplier’s enrollment in the Medicare program for the following reasons . . . .” (emphasis added). The Board recognized this prefatory language contemplates CMS will first decide whether to deny enrollment; only then does the regulation constrain the agency with respect to the basis for denial. Ronald Paul Belin, DPM, DAB No. 2629 at 4 (2015), citing Brian K. Ellefsen, DO, DAB No. 2626 (2015) (“The Board has recently accepted CMS’s position that its determination (and that of its contractors) about whether to deny a particular supplier’s enrollment application under section 424.530(a)(3) is discretionary, not mandatory, even where the underlying conviction is for an offense within one of the categories that CMS has determined to be detrimental to the best interests of the program and its beneficiaries.”).
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5. Under 42 C.F.R. § 422.222(a)(6), CMS has the discretion not to include an individual or entity on the preclusion list if it determines that “exceptional circumstances exist regarding beneficiary access to [Medicare Advantage] items, services, or drugs.” In making the determination, “CMS takes into account: (i) The degree to which beneficiary access to MA items, services, or drugs would be impaired; and (ii) Any other evidence that CMS deems relevant to its determination.” 42 C.F.R. § 422.222(a)(6). In this case, Petitioner has not argued that CMS should have exercised its discretion under 42 C.F.R. § 422.222(a)(6) nor has he argued that any of the circumstances described in 42 C.F.R. § 422.222(a)(6) exist. Therefore, it is not necessary for me to examine this regulation in the context of this case.
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