Alfred V. Jackson, Jr., M.D., DAB CR5456 (2019)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS). I sustain the determination of a Medicare contractor to deny the enrollment applications of Petitioner, Alfred V. Jackson, Jr., M.D.

I. Background

CMS moved for summary judgment. In support of its motion, CMS filed 15 proposed exhibits that it identified as CMS Ex. 1 – CMS Ex. 15. Petitioner opposed the motion and filed four exhibits that he identified as P. Ex. 1 – P. Ex. 4.

As I explain below, summary judgment is appropriate here because there are no disputed issues of material fact. For that reason, it is unnecessary that I receive the parties' proposed exhibits into evidence. I cite to some of the exhibits in this decision but only to illustrate undisputed facts.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a Medicare contractor, acting on behalf of CMS, is authorized to deny Petitioner's applications for Medicare enrollment.

B. Findings of Fact and Conclusions of Law

CMS is authorized to deny participation in Medicare pursuant to the provisions of 42 C.F.R. § 424.530. This regulation provides, at 42 C.F.R. § 424.530(a)(3), that CMS may deny a supplier's enrollment application 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 denial 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). Section 1128(a)(4) 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 deny Medicare enrollment to 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 deny enrollment. The undisputed facts of this case are that on September 28, 2017, Petitioner pled guilty to ten counts of prescription drug fraud, felonies under Tennessee law. CMS Ex. 1. His plea arose from his admitted unlawful prescription of controlled substances (hydrocodone and oxycodone) for personal use. CMS Ex. 2 at 19. Petitioner's plea is a conviction of felonies within the meaning of section 1128(a)(4) of the Act and creates grounds for CMS to deny Petitioner's Medicare enrollment applications.

Petitioner argues that compelling equitable considerations mitigate against denial of his enrollment. He asserts that he became addicted to opioids as a consequence of his suffering from cancer and the effects of that illness. Petitioner's brief at 4. Although he acknowledges writing fraudulent prescriptions, he avers that all of the controlled substances that he prescribed were for his own use. Petitioner states that, eventually, he recognized his problem, turned himself in to his employer, and sought help. His conviction arose directly from his acknowledgment of his addiction and his crimes.

Petitioner contends that he has successfully overcome his addiction. He has undergone a period of probation and extensive monitoring that includes random drug tests. He has passed all of the tests that he was required to take. P. Ex. 3 at 1-2.

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I accept Petitioner's acknowledgment of his culpability and recognize his efforts at rehabilitation. However, these equitable facts are irrelevant to the issue before me. As I have stated, Petitioner's criminal conviction mandates his exclusion from participation in Medicare. And, based on that requirement, CMS has the authority to deny Petitioner's Medicare enrollment without regard to equitable considerations.