Michael Van Nguyen, DAB CR6544 (2024)

DECISION

Petitioner, Michael Van Nguyen, M.D., is a physician, practicing in California, who participated in the Medicare program as a supplier of services.  Following a serious traffic accident, he was charged with one felony count of driving under the influence of alcohol and causing bodily injury to two blameless individuals; and one felony count of driving with a blood alcohol level of .08%, causing bodily injury.  Petitioner pleaded guilty to driving with a blood alcohol level of .08% and causing injury to another.  He did not report his conviction to the Medicare contractor.

Based on his felony conviction and his failure to report the adverse action, the Medicare contractor, Noridian Healthcare Solutions, acting on behalf of the Centers for Medicare & Medicaid Services (CMS), revoked Petitioner’s Medicare billing privileges, imposed a ten-year re-enrollment bar, and added his name to the Medicare preclusion list.

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Petitioner now appeals.

I find that CMS is authorized to revoke Petitioner Nguyen’s Medicare enrollment because, within the ten years preceding the revocation, he was convicted of a felony that CMS reasonably determined is detrimental to the best interests of the Medicare program and its beneficiaries.

For the same reason, CMS acted within its authority when it added Petitioner to its preclusion list.

I need not reach the issue of whether, in the alternative, CMS may revoke Petitioner’s Medicare enrollment because he did not report his conviction to the Medicare contractor (although he admits that he did not report).

I have no authority to review the length of the re-enrollment bar.

Background.

By letter dated October 20, 2023, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner Nguyen that his Medicare privileges were revoked, effective September 4, 2020.  The letter explains that the contractor revoked his Medicare enrollment for two reasons:

1. pursuant to 42 C.F.R. § 424.535(a)(3), because he was convicted of a felony – driving with a .08% blood alcohol level, causing injury, in violation of California Vehicle Code § 23153(b); and
2. pursuant to 42 C.F.R. § 424.535(a)(9), because he did not, within 30 days of his September 4, 2020 felony conviction, notify CMS of the adverse legal action.

CMS Ex. 3 at 1.  The contractor imposed a ten-year reenrollment bar, effective 30 days from the postmark date of the notice letter.  42 C.F.R. § 424.535(c); CMS Ex. 3 at 1.

The letter also advised Petitioner that the contractor added him to CMS’s preclusion list, as authorized by 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).  It explained that, if Petitioner requested reconsideration, this action would become effective on the date the reconsidered determination was issued.  CMS Ex. 3 at 1-2.

Petitioner requested reconsideration.  P. Ex. 2.  In a reconsidered determination, dated March 5, 2023, a CMS hearing officer upheld the revocation under sections 424.535(a)(3) and 424.535(a)(9).  CMS Ex. 5.  Specifically, she found that:

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• Within the previous ten years, Petitioner was convicted of a felony offense for driving with a .08% blood alcohol level and causing injury, which is detrimental to the best interests of the Medicare program; and
• Petitioner did not report his felony conviction to CMS or the Medicare contractor.

CMS Ex. 5 at 8.

The hearing officer also upheld the determination to include Petitioner’s name on CMS’s preclusion list.  Id.

Decision on the written record/summary judgment.  The parties have filed cross-motions for summary judgment.  They agree that no material facts are in dispute, and this matter turns on a question of law, so this case may appropriately be decided on summary judgment.

In the alternative, my initial order instructs the parties to list any proposed witnesses and to submit, as a proposed exhibit, the complete, written testimony of any proposed witness.  Acknowledgement and Pre-hearing Order at 4, 5 (¶¶ 4(c)(iv), 8) (May 8, 2024).  CMS lists no witnesses.  Petitioner lists multiple witnesses but provides only one written declaration, his own.  See CMS Ex. 4 at 23-28.  Most of Petitioner’s witnesses would therefore not be allowed to testify.  See James Brian Joyner, M.D., DAB No. 2902 at 11-12 (2018); Miracle Deeds Medical Supplies, LLC, DAB No. 2785 at 4-5 (2017).

In any event, Petitioner represents that each witness would testify about the conditions that prevailed during the COVID pandemic, supporting his position that Petitioner justifiably failed to report his felony conviction.  Because I do not decide this issue, the testimony is not relevant.  Even if I were deciding the issue, the testimony would still be irrelevant; CMS has the discretion to consider “unique or mitigating circumstances in deciding whether, or how, to exercise its revocation authority”; I do not.  Norman Johnson, DAB No. 2779 at 11, citing Care Pro Home Health, Inc., DAB No. 2723 at 9 n.8 (2016).  I “may not substitute [my] discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.”  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).

An in-person hearing would therefore serve no purpose and this matter may be decided based on the written record.  See 42 C.F.R. § 498.60(b)(1) (directing the ALJ to receive in evidence the testimony of witnesses that is relevant and material).

Exhibits.  CMS submits its motion and brief (CMS Br.) with five exhibits (CMS Exs. 1-5).  In the absence of any objections, I admit into evidence CMS Exs. 1-5.

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Petitioner submits his own brief with 11 exhibits (P. Exs. 1-11).  CMS objects to my admitting P. Exs. 3-5 and 7-10.  CMS argues that 42 C.F.R. § 498.56(e) precludes my admitting these documents because Petitioner did not submit them at the reconsideration level and has not offered good cause (or any explanation) for failing to do so.

Unless I find that good cause exists for Petitioner’s submitting the documents, for the first time, at this level of review, I must exclude the evidence.  42 C.F.R. § 498.56(e).  The Medicare contractor gave Petitioner ample notice of the requirement.  The October 20 notice letter warned:

[I]f you have additional information that you would like a Hearing Officer to consider during the reconsideration, or, if necessary, an Administrative Law Judge (ALJ) to consider during a hearing, you must submit that information with your request for reconsideration.  This is your only opportunity to submit information during the administrative appeals process unless an ALJ allows additional information to be submitted.

CMS Ex. 3 at 3 (emphasis added).

In my prehearing order, I directed Petitioner to identify “specifically” new evidence and to explain why good cause exists for me to receive it.  Acknowledgement and Pre-hearing Order at 5 (¶ 6).  Petitioner does not identify any of these proffered exhibits as “new evidence.”  He does not explain, much less offer good cause, why he failed to submit them at the reconsideration level.  Consistent with section 498.56(e), I decline to admit the new evidence.

I therefore admit into evidence P. Exs. 1-2 and 6.  I decline to admit P. Ex. 11, which is CMS’s Motion for Summary Judgment and Pre-hearing Brief.  That document is not evidence and is already in the record.

DISCUSSION

The Medicare program.  The Medicare program, Title XVIII of the Social Security Act (Act), is a federally-subsidized insurance program that provides health care benefits to the elderly, disabled, and those suffering from end stage renal disease.  Medicare is divided into four parts:

• Part A is the hospital insurance program. It covers hospital services, post-hospital extended care, home health, and hospice care.  Act § 1811 (42 U.S.C. § 1395c);
• Part B, which is voluntary, is the supplementary medical insurance program, covering physician, outpatient, home health, and other services. Act § 1831 (42 U.S.C. § 1395j);

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• Part C is the Medicare Advantage program, which allows its participants to enroll in “Medicare + Choice” plans, managed by organizations, such as health maintenance organizations, that receive a fixed payment for each enrollee. Act § 1851 (42 U.S.C. § 1395w-21); and
• Part D is the voluntary prescription drug benefit program. Act § 1860D (42 U.S.C. § 1395w-101).

The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services.  CMS contracts with Medicare administrative contractors, who process and pay reimbursement claims and perform other duties necessary to carry out program purposes.  Act § 1842 (42 U.S.C. § 1395u).  Contractors pay claims to “providers” (Part A) and “suppliers” (Part B).  Physicians and other practitioners who furnish healthcare services may participate in the program as “suppliers” of services; however, they must enroll in the program in order to receive Medicare payments.  Act § 1861(d), (q), (r) (42 U.S.C. § 1395x(d), (q), (r)); 42 C.F.R. §§ 400.202, 424.505.

Section 424.535(a) authorizes CMS to revoke a supplier’s Medicare enrollment and billing privileges on one or more of the grounds set forth under that subsection.  So long as CMS shows that one of the regulatory bases exists, I must uphold the revocation.  Wassim Younes, M.D. and Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018), citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016).

1. CMS may revoke Petitioner Nguyen’s Medicare enrollment, pursuant to 42 C.F.R. § 424.535(a)(3), because, within ten years preceding the revocation, he was convicted of a felony that CMS reasonably finds detrimental to the best interests of the Medicare program.²

Revocation of enrollment.  CMS may revoke a provider’s or supplier’s Medicare enrollment and billing privileges if, within the preceding ten years, he was convicted of a “felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.535(a)(3)(i); see also Act §§ 1842 (h)(8), 1866(b)(2)(D).  Offenses for which billing privileges may be terminated include – but are not limited to – felony crimes against persons, such as murder, rape, assault, and other similar crimes, including guilty pleas and adjudicated pretrial diversions.  42 C.F.R. § 424.535(a)(3)(ii)(A).

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Petitioner’s conviction.  Here, on July 5, 2017, Petitioner, who was driving while intoxicated, was involved in a traffic accident, which left two individuals injured.  CMS Ex. 2 at 3.  He was arrested, and, on September 4, 2020, he pleaded “no contest” to driving with a .08% blood alcohol level and injuring two individuals, in violation of California Vehicle Code § 23153(b), a felony.  CMS Ex. 2 at 5, 7-8; CMS Ex. 4 at 124, 152-153.  Section 23153(b) makes it illegal to drive a vehicle while under the influence of alcohol and to cause injury to another person.  The driver must have a blood alcohol level of .08% or higher; must commit an act that is prohibited by law or neglect a duty while driving; and the driver’s actions must cause bodily injury to another.

On October 7, 2020, the Alameda County Superior Court accepted his plea and found him guilty.  CMS Ex. 2 at 5, 9; CMS Ex. 4 at 124.

Petitioner concedes that, based on his felony conviction, CMS has the authority to revoke his Medicare enrollment pursuant to section 424.535(a)(3).  P. Br. at 6.  Petitioner is correct, and, because CMS has established a legal basis for its action, I must sustain the revocation.  Stephen White, M.D., DAB No. 2912 at 14 (2018); Cornelius M. Donohue, DPM, DAB No. 2888 at 4 (2018); Jason R. Bailey, M.D., P.A., DAB No. 2855 at 18 (2018).

Petitioner forcefully argues that he should not be excluded based on failing to report his felony conviction.  He concedes that he did not report as required but argues that the demands placed on him by the COVID pandemic excused him from doing so.³  I need not consider whether section 424.535(a)(9) provides an alternative basis for revoking Petitioner’s Medicare privileges.  So long as CMS shows that one of the regulatory bases exists, I must uphold the revocation.  Wassim Younes, M.D. and Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018), citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016).

2. CMS acted within its authority when it added Petitioner to its preclusion list because his Medicare privileges were revoked for conduct detrimental to the best interests of the Medicare program, and he is under a reenrollment bar.

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The preclusion list.  Effective January 1, 2019, CMS implemented a “preclusion list” as part of its effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees,” particularly with respect to prescription drug abuse.⁴  Pursuant to 42 C.F.R. § 422.2 (Part C) and 42 C.F.R. § 423.100 (Part D), CMS’s “preclusion list” includes individuals and entities that:

• are currently revoked from Medicare enrollment, are under an active reenrollment bar, and CMS determines that the underlying conduct leading to the revocation is detrimental to the best interests of the Medicare program; or
• have engaged in behavior for which CMS could have revoked the prescriber, individual, or entity had it been enrolled in the Medicare program, and CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program.

Petitioner’s offense and the revocations.  As discussed above, Petitioner Nguyen was convicted of a crime that is detrimental to the best interests of the Medicare program and its beneficiaries.  CMS was therefore authorized to revoke his Medicare enrollment and billing privileges and to impose a reenrollment bar.  42 C.F.R. §§ 424.535(a)(3)(ii)(A), 424.535(c).  Because his enrollment was revoked for a felony conviction deemed detrimental to the best interests of the Medicare program and its beneficiaries and because he is under a reenrollment bar, CMS is authorized to add him to the Medicare preclusion list.  42 C.F.R. § 422.2.  Unless CMS finds that a shorter period is warranted, the supplier remains on the preclusion list for ten years, beginning on the date of the felony conviction.  42 C.F.R. § 422.222(a)(5)(iii).

Again, I am not authorized to overturn a legally valid agency action based on equitable grounds or otherwise grant equitable relief.  Wendell Foo, M.D., DAB No. 2904 at 25 (2018), citing Foot Specialists of Northridge, DAB No. 2773 at 18 (2017).  So long as CMS establishes a basis for placing Petitioner on the preclusion list, I must uphold its determination to do so.  See Foo, DAB No. 2904 at 3; Wassim Younes, M.D. and Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 (2018), citing Patrick Brueggeman, D.P.M., DAB No. 2725 at 15 (2016).

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3. I have no authority to review CMS’s determination to impose a ten-year reenrollment bar. 

When a supplier’s billing privileges are revoked, it may not participate in the Medicare program until the end of its reenrollment bar, which must be for a minimum of one-year but no more than ten years (except under circumstance that don’t apply here), depending on the severity of the underlying offense.  42 C.F.R. § 424.535(c)(1).  Here, CMS imposed a ten-year reenrollment bar.  I have no authority to review its length.  Vijendra Dave, M.D., DAB No. 2672 at 9-12 (2016); accord, William Garner, MD, DAB No. 3026 at 16 (2020), Lilia Gorovits, MD, DAB No. 2985 at 15-16 (2020); see 42 C.F.R. § 498.3(b)(17).

Conclusion

CMS justifiably determined that Petitioner Nguyen was convicted of a felony detrimental to the best interests of the Medicare program and its beneficiaries; it may therefore revoke his Medicare enrollment and billing privileges.  CMS was also authorized to include Petitioner on the preclusion list because his Medicare enrollment was revoked for conduct detrimental to the best interests of the Medicare program, and because he is under a reenrollment bar.

For these reasons, I affirm CMS’s determinations.

Endnotes

¹  In error, the Medicare contractor’s notice letter lists PTAN “CA3340746.”  CMS Ex. 3 at 1.  In fact, as Medicare enrollment records show, “CA334076” is the correct PTAN.  CMS Ex. 1 at 1.  

²  My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.

³  Health care providers were truly the heroes of the pandemic, and their contributions to the general welfare cannot be overstated.  Many disregarded their own health and well-being to provide essential services to those afflicted.  Nevertheless, reporting adverse legal events – which is critically important to the integrity of the Medicare program – is not a particularly time-consuming or cumbersome process, certainly no more onerous than reporting the conviction to an employer or responding to inquiries from the California Medical Board.  See CMS Ex. 4 at 30-34; 95.

⁴  Apparently, CMS considered requiring Medicare enrollment for all providers and suppliers of Medicare Advantage services and subscribers of Part D drugs but, ultimately, opted for a preclusion list instead.  CMS concluded that the burden of requiring Medicare enrollment for hundreds of thousands of additional providers, suppliers, and prescribers would be too great and would threaten beneficiary access to prescriptions and services.  See 82 Fed. Reg. at 56442, 56448 (November 28, 2017); 83 Fed. Reg. 16646 (April 16, 2018).