Briana L. Boyd, M.D., DAB CR5825 (2021)

DECISION

I sustain the determination of a Medicare contractor, as affirmed on reconsideration, to deny the Medicare supplier enrollment application of Petitioner, Briana L. Boyd, M.D. 

I. Background

The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment and Petitioner opposed the motion.  Simultaneous with its motion, CMS filed a pre-hearing exchange that included 25 proposed exhibits identified as CMS Ex. 1-CMS Ex. 25.  Petitioner, with her opposition to CMS’s motion, filed a pre-hearing exchange that included 10 proposed exhibits identified as P. Ex. 1-P. Ex. 10.

There is no need for me to rule on CMS’s motion.  CMS’s proposed exhibits do not include the written direct testimony of witnesses.  Although some of Petitioner’s proposed exhibits may be characterized as containing testimony and P. Ex. 6 is Petitioner, Briana L. Boyd, M.D.’s written direct testimony, CMS did not request to cross-examine the declarants.  For that reason, convening an in-person hearing is unnecessary.  I hear this case based on the parties’ pre-hearing exchanges.

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Petitioner did not object to my receiving CMS’s proposed exhibits into evidence.   I receive CMS Ex. 1-CMS Ex. 25.

CMS objected to my receiving P. Ex. 1-P. Ex. 5 and P. Ex. 7-P. Ex. 10 on two grounds.  First, CMS asserts that Petitioner filed these exhibits untimely and without establishing good cause for doing so.  Second, CMS asserts that the exhibits are irrelevant.  I sustain CMS’s objections and decline to admit P. Ex. 1-P. Ex. 5 and P. Ex. 7-P. Ex. 10.  I receive P. Ex. 6.

Regulations governing hearings in cases involving denial of Medicare supplier enrollment applications provide that I may not receive new documentary evidence from a party that had not been filed with a request for reconsideration of an initial determination and absent a showing of good cause for failure to file the exhibits timely.  42 C.F.R. § 498.56(e)(2)(ii).  Petitioner failed to file the exhibits that are at issue with her request for reconsideration.  She offered no justification for her failure to do so.  Furthermore, the objected-to exhibits are irrelevant.  They relate to Petitioner’s contention that the contractor unreasonably exercised discretion to deny Petitioner’s Medicare supplier enrollment application.  As I explain below, I have no authority to hear and decide this contention.  Additionally, Petitioner offers these exhibits to support her assertion that she poses no risk to the Medicare program and to its beneficiaries.  I also am without authority to hear and decide this assertion.   

II. Issues, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether CMS or its contractor delegate have discretion to deny Petitioner’s application for Medicare enrollment.1

B. Findings of Fact and Conclusions of Law 

The contractor denied Petitioner’s Medicare supplier enrollment application, relying on the authority conferred by 42 C.F.R. § 424.530.  This regulation cites grounds for denial of an application.  These grounds include those recited at 42 C.F.R. § 424.530(a)(3), conviction of a felony within the previous 10 years that CMS or its contractor delegate determines is detrimental to the best interests of the Medicare program or its beneficiaries.

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The regulation contains a list of the types of felonies that are considered to be detrimental to the program’s and its beneficiaries’ best interests.  42 C.F.R. § 424.530(a)(3)(i)(A)-(D).  The list is non-inclusive of all felonies that might be detrimental.  The list specifically describes a felony conviction of assault, along with other crimes against persons, as being among the offenses that are detrimental.  42 C.F.R. § 424.530(a)(3)(i)(A).

Conviction of felony assault per se authorizes denial of a supplier enrollment application.  In the event of such a conviction, CMS or its contractor has unchallengeable discretionary authority to deny an application for Medicare enrollment.  In that circumstance, my authority to review a denial is limited to deciding whether there has been a conviction for felony assault within the past 10 years.  I may not question CMS’s or its contractor’s discretion to deny, assuming that there is such a conviction:

Neither the . . . [administrative law judge] nor the . . . [Departmental Appeals Board] is allowed to review CMS’s exercise of discretion to deny Petitioner’s application or to substitute its opinion as to whether Petitioner remains a threat to the Medicare program and its beneficiaries based on his felony conviction.

Robert J. Tomlinson, M.D., DAB No. 2916 at 8 (2018); see also Dr. Robert Kanowitz, DAB No. 2942 at 4, 6 (2019) (administrative law judges and the Departmental Appeals Board are prohibited from reviewing CMS’s discretion where CMS is legally authorized to deny enrollment based on convictions for covered felonies).

The facts of this case establish that Petitioner was convicted of felony assault within the past 10 years.  Consequently, CMS or its contractor has the authority to deny Petitioner’s application for Medicare participation.  I may not review the propriety of the denial.

Early on the morning of December 3, 2012, Petitioner was involved in an automobile accident in which she collided head-on with another vehicle.  CMS Ex. 1 at 3; CMS Ex. 6 at 2.  She was charged under Kentucky law with felony assault for wantonly causing serious injury by means of a dangerous instrument (an automobile) while driving under the influence of alcohol, on the wrong side of a limited access highway.  CMS Ex. 5 at 1.

On September 13, 2013, Petitioner pled guilty to one count of second-degree assault, a felony under Kentucky law.  She also pled guilty to a second felony of reckless endangerment.  CMS Ex. 7 at 2; CMS Ex. 10.  A court accepted Petitioner’s guilty plea and entered judgment against her on November 6, 2013.  CMS Ex. 8.

As I have explained, I do not have authority to review the exercise of discretion to deny Petitioner’s Medicare supplier enrollment application.  My conclusion that Petitioner was

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convicted of felony assault – a per se ground for denial of Petitioner’s application – is the limit of what I may hear and decide in this case.

Nor do I have authority to review the reasonableness of the 10-year enrollment bar that the contractor imposed against Petitioner.  The length of an enrollment bar is not an initial determination that I have authority to review.  See 42 C.F.R. § 498.3.2 

None of the arguments raised by Petitioner establish grounds for me to find unreasonable the determination to deny Petitioner’s Medicare supplier enrollment application.

Petitioner does not deny her conviction.  She contends, however, that the facts of her particular case do not justify denying her supplier enrollment application.  Petitioner’s pre-hearing brief at 2-4.  She argues that her recounting of the accident that underlies her conviction has been consistent – that there are exculpatory facts that should mitigate her responsibility for that accident.  She contends that her conviction may be the consequence of inadequate representation of counsel.  Id.

This argument is an attempt by Petitioner to soften the seriousness of the crime of which she was convicted.  It is a challenge to the contractor’s and CMS’s exercise of discretion.  I lack authority to consider this argument for the reason that I have explained.  In this case, Petitioner stands convicted of a crime that is a per se basis for denial of her supplier enrollment application.  I may not question the authority to deny in this case.

In the same vein, Petitioner argues that denying Petitioner’s supplier enrollment application is unreasonable given that Petitioner is a competent provider of care who stands ready to assist her community during a health care crisis (the Covid-19 pandemic) and whose credentials and trustworthiness have been attested to by members of her community.  Petitioner’s pre-hearing brief at 4-7.  She asserts that her conviction has no bearing on her present competence and trustworthiness to provide care to program beneficiaries.  Petitioner avers that she has demonstrated that she is worthy of being enrolled.  Id. at 6. 

These arguments are an attack on the reasonableness of the contractor’s and CMS’s exercise of discretion.  As I have explained, I do not have the authority to address them due to Petitioner’s conviction of a felony specifically described at 42 C.F.R. § 424.530(a)(3)(i)(A).

The contractor addressed the question of Petitioner’s actual trustworthiness to provide care in addition to finding a per se regulatory basis for denying Petitioner’s application.  Specifically, the contractor evaluated findings made by the Kentucky Board of Medical

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Licensure in a disciplinary proceeding that resulted in the revocation of Petitioner’s Kentucky license to practice medicine, which was subsequently restored.  CMS Ex. 9.  The Board found that Petitioner repeatedly made false statements concerning the circumstances of the accident that resulted in her felony conviction.  Id. at 13-14.  Petitioner challenges these findings.

I find it unnecessary to address those findings here.  The per se basis for denying Petitioner’s supplier enrollment application – her felony assault conviction – is sufficient reason for me to sustain the determination to deny Petitioner’s application.  I therefore do not evaluate the reasonableness of the contractor’s finding that Petitioner was untrustworthy, nor do I address the credibility of the evidence relied on by the contractor.