Robert Kevin Lynch, D.O., DAB CR6571 (2024)

DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) to deny the Medicare enrollment and billing privileges of Petitioner, Robert Kevin Lynch, D.O., and to add Petitioner's name to the CMS Preclusion List.

I.  Background and Procedural History

Petitioner is a physician.  P. Ex. 5 at 1.  In a May 22, 2023 notice of initial determination, a CMS contractor denied Petitioner's application for enrollment in the Medicare program as a physician/supplier for the following reason:

[CMS] has been made aware of [Petitioner's] September 6, 2017 felony conviction, as defined in 42 C.F.R. § 1001.2, for Cruelty to Non-Livestock animals – killing/poisoning in violation of Texas Penal Code § 42.092(c) in the 161st District Court of Ector County, Texas.  After reviewing the specific facts and circumstances surrounding [Petitioner's] felony conviction, CMS has determined that [Petitioner's]

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felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries.

P. Ex. 2 at 1.

The notice of initial determination also stated that Petitioner's name would be added to the CMS Preclusion List.  P. Ex. 2 at 1-2.

In July 2023, Petitioner timely requested reconsideration of the determination to deny enrollment and to add Petitioner's name to the CMS Preclusion List.  P. Ex. 3.

In a November 7, 2023 reconsidered determination, a CMS hearing officer upheld the initial determination.  P. Ex. 4.

On May 17, 2024, Petitioner requested that the Civil Remedies Division (CRD) extend the due date for filing a request for an administrative law judge (ALJ) hearing.  Electronic Filing System (E-File) Doc. No. 1.  Petitioner asserted, as good cause for the request, that one of his parents became ill and passed away during the appeal period and Petitioner then had successive surgeries at the end of the appeal period and following the end of the appeal period.  E-File Doc. No. 1 at 2.  Petitioner submitted documents in support of the extension request.  E-File Doc. Nos. 1a-1g.

CRD assigned this case to me for adjudication.  In a May 21, 2024 Order, I directed CMS to respond to Petitioner's extension request by May 31, 2024, and, if CMS did not oppose the extension request, I directed Petitioner to file a hearing request by June 7, 2024.  E-File Doc. No. 2.  On June 5, 2024, CMS filed an objection to the extension request.  E-File Doc. No. 4.  On June 7, 2024, Petitioner filed a hearing request (E-File Doc. No. 5), along with 11 proposed exhibits (P. Exs. 1-11).  E-File Doc. Nos. 6-9b.

In a June 10, 2024 Order, I rejected CMS's untimely opposition to Petitioner's extension request and found that Petitioner showed good cause for an extension to file a hearing request.  E-File Doc. No. 10.  Also, on June 10, 2024, CRD acknowledged receipt of Petitioner's hearing request, provided the parties with a prehearing submission schedule, and issued my Standing Order.  E-File Doc. Nos. 10a-10b.

On July 15, 2024, CMS filed a prehearing brief (CMS Br.), which included a motion for summary judgment.  On August 16, 2024, Petitioner submitted a prehearing brief (P. Br.), which responded to the summary judgment motion.  On September 9, 2024, CMS filed a reply brief (CMS Reply) and a notice that CMS did not object to the exhibits Petitioner filed with the hearing request.

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II.  Admission of Evidence

Neither party submitted marked exhibits with their briefs.  Both parties rely on the exhibits filed with the hearing request.  Therefore, I admit those exhibits into the record as Petitioner's Exhibits 1 through 11.

III.  Decision on the Written Record

I directed the parties to submit the written direct testimony for any witnesses they wanted to offer and explained that an evidentiary hearing would only be necessary if a party requested to cross-examine a witness for which written direct testimony had been submitted.  Standing Order ¶¶ 7(e)(iv), 11-13; Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b).  Petitioner submitted an affidavit (P. Ex. 7), which I accept as his written direct testimony.  CMS did not request to cross-examine Petitioner and explicitly did not object to any of the exhibits Petitioner submitted with the hearing request.  E-File Doc. No. 14a.  Because there is no need to conduct an in-person hearing, I issue a decision based on the written record.  Standing Order ¶ 14; CRDP § 19(d).  I deny CMS's summary judgment motion as moot.

IV.  Issues

1. Whether CMS had a legitimate basis to deny Petitioner's enrollment in the Medicare program under 42 C.F.R. § 424.530(a)(3).
2. Whether CMS had a legitimate basis to include Petitioner on the CMS Preclusion List under 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).

V.  Jurisdiction

I have jurisdiction to decide the issues in this case.  42 C.F.R. §§ 498.3(b)(17)(i), (20), 498.5(l)(2), (n)(2); see also 42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 424.545(a), 498.1(g).

VI.  Legal Framework

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to establish regulations governing the enrollment of providers and suppliers in the Medicare program.  42 U.S.C. § 1395cc(j).  Physicians are "suppliers" for Medicare program purposes.  42 U.S.C. § 1395x(d) (defining "supplier" to include physicians and other entities that are not considered to be a "provider of services").

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To receive payment for covered Medicare items or services provided to beneficiaries under Medicare Part B, a supplier must enroll in the Medicare program.  42 U.S.C. §§ 1395n(a), 1395u(h)(1); 42 C.F.R. § 424.505.  To enroll, a supplier must complete and file an enrollment application with CMS and meet all of the requirements to be a supplier.  42 C.F.R. §§ 424.510, 424.530.  If CMS determines that an applicant does not meet the requirements for enrollment, CMS has the authority to deny enrollment.  42 C.F.R. § 424.530.

A Medicare Advantage Organization under Medicare Part C may not make payment for a health care item, service, or drug provided by an individual or entity on the CMS Preclusion List.  42 C.F.R. § 422.222(a)(1)(i).  Further, a Medicare Part D sponsor must deny a request for reimbursement from a Medicare beneficiary for a drug prescribed by an individual who is on the CMS Preclusion List.  42 C.F.R. § 423.120(c)(6)(vii)(C).  CMS may add an individual or entity to the CMS Preclusion List for any of the reasons stated in the regulatory definition of the term "Preclusion List" applicable to Medicare Parts C and D.  42 C.F.R. §§ 422.2, 423.100.

VII.  Findings of Fact

1. Petitioner is a physician who has been licensed in the state of Texas since 1997.   Petitioner has been board certified in general surgery since 1999.  P. Ex. 5 at 1; P. Ex. 7 ¶ 1; P. Ex. 8 at 2.
2. For over a year and a half, Petitioner's neighbor's dogs "incessantly barked day and night, disrupting [Petitioner's] family's peace and preventing [Petitioner and his family] from sleeping.  The noise penetrated inside [Petitioner's] home and interfered with [Petitioner's] home life."  P. Ex. 7 ¶ 3; P. Ex. 9 at 5.
3. Petitioner unsuccessfully attempted to resolve the situation by communicating with the neighbor, the local police animal control unit, the homeowner's association, and a city councilman.  P. Ex. 7 ¶ 4; P. Ex. 9 at 5, 8-9.
4. Petitioner attempted but was unable to sell his house because "potential buyers were scared off by the barking dogs."  P. Ex. 7 ¶ 4; P. Ex. 9 at 5-6.
5. Petitioner remedied the situation by poisoning and killing two of his neighbor's dogs and injuring a third.  When Petitioner threw poisoned meat over the neighbor's fence, he thought there was only one dog.  P. Ex. 7 ¶ 5; P. Ex. 8 at 2; P. Ex. 9 at 6.
6. Within a few weeks of poisoning the dogs, the police arrested Petitioner.  Petitioner confessed to poisoning a dog.  P. Ex. 7 ¶ 6; P. Ex. 8 at 2; P. Ex. 9 at 6.

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7. On September 6, 2017, Petitioner pleaded guilty, in the District Court of Ector County, Texas, 161st Judicial District (District Court), to two felony counts of Cruelty to Non-Livestock Animals under Texas state law.  P. Ex. 6; P. Ex. 7 ¶ 6; P. Ex. 8 at 2.
8. On September 6, 2017, the District Court entered an Order of Deferred Adjudication: Placement on Community Supervision.  The District Court did not enter a judgment of guilt against Petitioner but placed Petitioner on two years of community supervision.  P. Ex. 6 at 1; P. Ex. 7 ¶ 7.
9. On August 15, 2019, the District Court:  1) found that Petitioner complied with the terms for community supervision; 2) permitted Petitioner to withdraw his guilty plea; and 3) dismissed the indictment against Petitioner.  P. Ex. 6 at 8; see also P. Ex. 7 ¶ 7.
10. At some time after September 11, 2017, the Texas Medical Board began informal disciplinary proceedings against Petitioner.  P. Ex. 8 at 1.
11. After failing to reach a settlement with Petitioner, the Texas Medical Board filed a formal complaint against Petitioner with the State Office of Administrative Hearings.  The Texas Medical Board charged Petitioner with the following:  "[Petitioner] was arrested and charged with two felony counts of animal cruelty, to which he plead[ed] guilty.  The charges were based upon [Petitioner's] poisoning and killing of his backyard neighbor's two dogs and poisoning and attempted killing of their third dog."  P. Ex. 8 at 1.
12. On August 16, 2019, the Texas Medical Board issued an Agreed Order on Formal Filings (Agreed Order).  Petitioner signed the Agreed Order on June 26, 2019.  P. Ex. 8.
13. The Agreed Order indicated the following were aggravating factors concerning Petitioner's conduct:
    1. "When his first attempt resulted in the death of one dog, [Petitioner] repeated his crime with the intent to kill the remaining two."  P. Ex. 8 at 3.
    2. "Although [Petitioner] denies it, the police report indicates that he lied to officers during the investigation."  P. Ex. 8 at 3.
14. The Agreed Order required the following:

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1. Petitioner must undergo an Independent Medical Evaluation conducted by a Board-Certified Psychiatrist.  P. Ex. 8 at 4.
2. Petitioner must pay a $5,000 penalty.  P. Ex. 8 at 6.
3. Petitioner must complete eight hours of continuing medical education on the topic of ethics.  P. Ex. 8 at 6.

15. The Agreed Order did not suspend or terminate Petitioner's Texas medical license.  P. Ex. 7 ¶ 8.

16. On August 22, 2019, a Texas ALJ with the State Office of Administrative Hearings dismissed the disciplinary case against Petitioner based on the Agreed Order that settled the case.  P. Ex. 10.
17. On November 27, 2019, a Board-Certified Forensic Psychiatrist issued a report as required by the Agreed Order.  P. Ex. 9.  Based on an interview of Petitioner and other information, the psychiatrist concluded:  "[Petitioner] did not demonstrate any significant concerns regarding his ability to perform work currently with respect to mood, behavior, judgment or due to the impairing effects of substances.  There were no noted incidents of questionable impulse control in the workplace.  Additionally, there was no further documentation in the interview or collateral sources of problems with his insight, judgment or ability to make ethical decisions at the current time."  P. Ex. 9 at 11.

VIII.  Conclusions of Law and Analysis

1. CMS had a legitimate basis to deny Petitioner's enrollment as a physician/supplier in the Medicare program because Petitioner was convicted of a felony offense and CMS reasonably concluded that offense is detrimental to the best interests of the Medicare program and its beneficiaries.

The Act authorizes the Secretary to administer the enrollment process for providers and suppliers in the Medicare program.  See 42 U.S.C. § 1395cc(j).  Although the Secretary is to provide through regulation many of the details in the enrollment process, the Act provides the following standard by which the Secretary may deny enrollment of an individual convicted of a felony offense:

The Secretary may refuse to enter into an agreement with a physician or supplier . . . in the event that such physician or supplier has been convicted of a felony under Federal or State

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law for an offense which the Secretary determines is detrimental to the best interests of the program or program beneficiaries.

42 U.S.C. § 1395u(h)(8).

The Secretary delegated the authority to implement this statutory provision to CMS but limited its application to felony convictions that occurred within 10 years.  The Secretary also defined the term "convicted" by cross-referencing 42 C.F.R. § 1001.2, which in turn was based on the statutory definition for that term in 42 U.S.C. § 1320a-7(i).  Finally, the Secretary provided a non-exhaustive list of felony offense categories and examples that the Secretary determined to be detrimental to the best interests of the Medicare program and its beneficiaries.  42 C.F.R. § 424.530(a)(3).

As explained below, I conclude that Petitioner was convicted of a felony offense within the last 10 years and that CMS reasonably concluded that the felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  Therefore, I uphold the denial of Petitioner's enrollment application.

1. Petitioner was convicted within the last 10 years of a felony offense.

The most basic requirements for CMS to deny enrollment under 42 C.F.R. § 424.530(a)(3) is that the applicant for enrollment was convicted of a felony offense within the preceding 10 years.

The regulations provide the following definition for the word "convicted":

Convicted means that -

*     *     *     *

(c) A Federal, State or local court has accepted a plea of guilty or nolo contendere by an individual or entity; or

(d) An individual or entity has entered into participation in a first offender, deferred adjudication or other program or arrangement where judgment of conviction has been withheld.

42 C.F.R. § 1001.2.

As stated in Findings of Fact 7 through 9, on September 6, 2017, Petitioner pleaded guilty to two felony counts of "Cruelty to Non-Livestock Animals – Killing/Poisoning," the

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District Court "received" Petitioner's guilty plea, and the District Court "deferr[ed] further proceedings without entering an adjudication of guilty . . . ."  P. Ex. 6 at 1.  After Petitioner finished two years of community supervision, the District Court allowed him to withdraw his guilty plea and dismissed the indictment against him.  P. Ex. 6 at 8.

Therefore, Petitioner was convicted of a felony offense within 10 years of CMS's denial of Petitioner's enrollment application.

2. CMS's case-specific determination that Petitioner's felony offenses are detrimental to the best interests of the Medicare program and its beneficiaries is reasonable.

Petitioner argues that CMS does not have complete discretion to decide whether Petitioner's felony offenses were detrimental to the best interests of the Medicare program and that such a determination is subject to judicial review.  P. Br. at 3-4.  Petitioner asserts that "CMS did not consider the factors that make Dr. Lynch an excellent provider to Medicare beneficiaries, including Dr. Lynch's long-term prior enrollment in Medicare without sanction, the underlying facts that led to the crime he committed and the necessity of the services he can provide to Medicare beneficiaries in his community."  P. Br. at 4.  Petitioner requests that I "re-evaluate CMS's decision with a review of all the relevant facts."  P. Br. at 4.

My role in this case is to review whether CMS had a legitimate basis to deny Petitioner's enrollment application.  This is especially true in this case because CMS made a case-specific determination that Petitioner's felony offense was detrimental to the best interests of the Medicare program and its beneficiaries.

The Secretary created a non-exhaustive list of the types of felony offenses that CMS will treat as per se detrimental to the best interests of the program and its beneficiaries.  42 C.F.R. § 424.530(a)(3)(i); 71 Fed. Reg. 20,754, 20,768 (Apr. 21, 2006); Letantia Bussell, M.D., DAB No. 2196 at 9 (2008).1  Because the list is not all-inclusive, CMS may also determine that other felony offenses are detrimental to the Medicare program and its beneficiaries based on "a case-specific, adjudicative determination."  Eva Orticio Villamor-Goubeaux, DAB No. 2997 at 9-10 (2020); see also Fayad v. Sebelius, 803 F. Supp. 2d 699, 704 (E.D. Mich. 2011) (upholding CMS's determination to revoke a supplier's Medicare enrollment based on an unenumerated felony conviction).

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When considering whether a felony offense is detrimental, CMS must "explain[] why the offense is detrimental to the Medicare program and its beneficiaries."  Michael Scott Edwards, OD, & M. Scott Edwards, OD, PA, DAB No. 2975 at 11 (2019).  Further, the determination must be reasonable.  Villamor-Goubeaux, DAB No. 2997 at 10; Omair Chaudry, M.D., DAB No. 3145 at 12-14 (2024) (concluding after a lengthy review of the felony offense that "we find no error in the ALJ's conclusion that CMS reasonably determined that Petitioner's felony offense is detrimental to the best interests of the Medicare program and its beneficiaries"); see also Fayad, 803 F. Supp. 2d at 704 (upholding a determination that the Plaintiff's particular felony offense was detrimental because "the Secretary reasonably concluded that Plaintiff's continued participation in the Medicare program was contrary to the best interests of that program").

Although the initial determination provided limited analysis as to why Petitioner's felony offense was detrimental, the CMS hearing officer's reconsidered determination provided more detail:

We find that Dr. Lynch's September 6, 2017 felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries based on the facts and circumstances surrounding his conviction.  Dr. Lynch's felony conviction involves his cruelty against animals.  Specifically, Dr. Lynch concocted a toxic mixture of raw meat, raisins, rat poison, and anti-freeze and subsequently threw the toxic mixture over his neighbor's fence, resulting in the death of his neighbor's two dogs and grievous injury to a third dog.  Dr. Lynch killed and administered the poison to his neighbors' dogs because of their barking.  Further, when his first attempt resulted in the death of one dog, Dr. Lynch repeated his crime with the intent to kill the remaining two.  In addition, the Texas Medical Board concluded that, although he denied it, the police report indicates that he lied to officers during the investigation.

Dr. Lynch's actions are cruel, heinous, reprehensible and display that he does not value all life forms, and lacks good judgment.  His behavior also indicates an intentional disregard for the property of others.  A physician who resorted to killing animals because of the inconvenience of barking and was dishonest to police who investigated it, is one that we cannot trust to be a reliable and trustworthy Medicare partner.  It is also an indication that he may struggle with impulse control and anger management.  Payment for

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Medicare claims is made in a manner that relies upon the trustworthiness and best judgment of our Medicare partners.  Therefore, we find that Dr. Lynch's felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries as honesty, the exercise of good judgment, and the respect for life is vital to the practice of medicine.  As such, we uphold the revocation of Triton's Medicare billing privileges pursuant to [42 C.F.R.] § 424.530(a)(3).

P. Ex. 4 at 4 (internal citations omitted) (emphasis added).

I note that Petitioner's request for reconsideration did not discuss the specific facts surrounding the felony convictions or expressly challenge the determination that the felony offenses were detrimental to the best interests of the Medicare program and its beneficiaries.  P. Ex. 3.  Despite this, the CMS hearing officer showed a good command of facts in Petitioner's criminal case.  However, I disagree with the hearing officer's characterization of Petitioner's motivation to kill his neighbor's dogs as being merely due to the "inconvenience of barking" when, as detailed in Findings of Fact 2 through 4, it is clear that Petitioner and his family suffered prolonged discomfort from barking at all hours that deprived them of sleep and the peaceful enjoyment of their home.  Further, the hearing officer did not mention that Petitioner tried many avenues of redress before resorting to killing the dogs.  In fairness to the hearing officer, Petitioner had not submitted his affidavit (P. Ex. 7) and the hearing officer may have been unaware of those details because Petitioner had not provided them.

My review of the record also shows that the hearing officer inappropriately considered the allegations in a police report that Petitioner lied to them, despite the fact that Petitioner was not charged or convicted of such an offense and Petitioner denied any intentional misrepresentation.  P. Ex. 9 at 7-8.  Although the Texas Medical Board appeared to consider the police report's allegation as an aggravating factor, the Texas Medical Board did not provide any detail or explanation for doing so.  P. Ex. 8 at 3.  Further, it is odd that an "Agreed Order" would contain an aggravating factor with which Petitioner expressly disagreed.  P. Ex. 8 at 3.  In any event, the police report is not in the record, Petitioner was not convicted of making false statements to the police, and Petitioner denied the police report's allegations.  As a result, the hearing officer's determination that Petitioner is untrustworthy based on uncharged, unclear, and disputed allegations that are not in the record does not support the reasonableness of CMS's determination that Petitioner's felony offenses are detrimental to the best interests of the Medicare program and its beneficiaries.

In addition, the hearing officer speculated that Petitioner struggles with impulse control and anger management.  As quoted in Findings of Fact 17, the Texas Medical Board's

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independent psychiatric evaluation, completed in 2019, found no such concerns for Petitioner's ability to practice.  Therefore, these considerations also do not support the conclusion that Petitioner's felony offense are detrimental to the best interests of the Medicare program and its beneficiaries.

Despite the hearing officer's unhelpful consideration of these ancillary matters, the hearing officer's primary concern involved Petitioner's lack of judgment and failure to respect life.  Both of those concerns are present in Petitioner's actions when he killed two dogs and injured a third.  The killings cannot be justified and represent poor judgment.  As Petitioner now recognizes, better judgment would have resulted in retaining a lawyer to seek legal redress.  P. Ex. 9 at 5.  Further, the poisoning and killing of domestic pets show a failure to respect life.  Obviously, this is essential in a health care provider.  Therefore, based on these significant justifications, I conclude that CMS reasonably determined that Petitioner's felony offenses are detrimental to the Medicare program and its beneficiaries.  See Dr. Howard Van Nostrand, DC, DAB CR5802 at 5-6 (2021).

I note that Petitioner argues that his previous unblemished record as a physician in the Medicare program should be considered.  However, both the statute and regulations only require an assessment as to whether the felony offense in question is detrimental to the Medicare program or program beneficiaries.  Neither indicates that a broader consideration of other issues is required.

Therefore, I affirm CMS's denial of enrollment.

2. CMS had a legitimate basis to include Petitioner on CMS's Preclusion List.

Based on Petitioner's felony convictions, CMS placed Petitioner on the CMS Preclusion List.  P. Ex. 2 at 1.  Petitioner requested reconsideration of CMS's determination to place his name on the CMS Preclusion list because Petitioner disclosed his criminal convictions to CMS in 2019.  P. Ex. 3 at 1.  Petitioner also stated that he voluntarily terminated his enrollment in the Medicare program, which CMS approved without further sanctions.  CMS Ex. 3 at 1.

CMS may add an individual to the CMS Preclusion List when the individual has been convicted of a felony under federal or state law within the previous 10 years and CMS determines that the felony is detrimental to the best interests of the Medicare program.  To determine whether the felony conviction is detrimental to the best interests of the Medicare program, CMS must consider the following factors:  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 (paragraph (3) of definition of "Preclusion List"), 423.100 (paragraph (3) of definition of "Preclusion List").

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In the reconsidered determination, the CMS hearing officer found that Petitioner was convicted of felonies within the preceding 10 years and considered the three factors to conclude that the convictions were detrimental to the best interests of the Medicare program.  P. Ex. 4 at 4-5.  The hearing officer wrote the following about the three factors:

Regarding factor (i), Dr. Lynch's conduct is severe in nature because, as we stated above, he knowingly and willfully poisoned and killed his neighbors' dogs, due to excessive barking.  This type of conduct displays disdain for another's property, a lack of good judgment, and as stated above, a disregard for all life forms.  Dr. Lynch was also dishonest about the crime before the police.  The integrity of the Medicare program is dependent on the honesty, integrity, and good judgement of its partners.  Dr. Lynch's offense is reprehensible and severe.

Regarding factor (ii), Dr. Lynch was convicted of the offense on September 6, 2017.  The offenses occurred in December 2016.  We acknowledge that several years have passed since the commission and conviction of this felony offense.  However, we believe the passage of time is outweighed by the severity of the offense.

Regarding factor (iii), CMS finds relevant that a determination of detriment to the best interests of the Medicare program is inherent in our implementation of the denial of Dr. Lynch's enrollment application under [42 C.F.R.] § 424.530(a)(3), which was upheld after reconsideration, above.  In addition, Dr. Lynch's offense is detrimental to the best interests of the Medicare program because his actions reflect poorly on the medical profession as a whole and jeopardizes public confidence in Medicare providers and suppliers.  CMS is committed to maintaining quality service to beneficiaries enrolled in the Medicare program.  Medicare is a program for the public and public confidence in the program is vital to its success.  Allowing Dr. Lynch to participate in the Medicare program in light of his felony conviction jeopardizes public confidence in the Medicare program.  Any behavior that jeopardizes confidence in Medicare partners is necessarily detrimental to the best interests of the Medicare program.

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P. Ex. 4 at 5 (internal citations omitted).

Petitioner argues that the hearing officer failed to properly assess the severity factor because the hearing officer did not consider the reasons for Petitioner's criminal conduct.  P. Br. at 5.  Petitioner also faulted the hearing officer for failing to consider Petitioner's long-term service to Medicare beneficiaries and that the Texas Medical Board did not suspend or terminate Petitioner's medical license following a psychological evaluation.  P. Br. at 5.  Petitioner wants me to "re-evaluate CMS['s] decision with a careful review of the facts and discretionary factors enumerated in the [regulation]."  P. Br. at 5.

Concerning my review, administrative appellate decisions indicate that I should review the hearing officer's decision rather than conduct an entirely new analysis myself.  See Chaudry, DAB No. 3145 at 17-18; Anthony Del Piano, M.D., DAB No. 3096 at 15-16 (2023) (summarizing CMS's reasons for determining the conviction was detrimental to the best interests of the Medicare program and finding that ALJ did not err in upholding CMS's determination).

The CMS hearing officer determined the severity of the convicted felony offenses in a manner consistent with a similar evaluation done to deny the enrollment application.  I agree that the severity of the offenses is significant because they involved poisoning and killing of domestic pets.  As I explained earlier, I do not consider the allegations in the police report of false statements to be appropriately considered; however, even excluding that portion of the analysis, the underlying criminal conduct is severe and is a significant concern when one considers that Petitioner is a health care provider.

The CMS hearing officer acknowledged the length of time that has transpired since Petitioner's conviction.  However, the hearing officer indicated that the severity factor outweighed the length of time since conviction.  This is a reasonable conclusion.

Finally, the CMS hearing officer did not consider any "other information" other than to be concerned that allowing Petitioner to provide services to Medicare beneficiaries would jeopardize public confidence in the program.  However, Petitioner believes that the lack of a suspension or termination of his state license should have been considered.  But the Texas Medical Board did take action against Petitioner when it imposed a fine, required ethics courses, and a psychiatric/medical evaluation.  The Texas Medical Board also thought that it was an aggravating factor that Petitioner twice provided poisoned meat to the neighbor's dogs when the barking continued following the first attempt to kill them was not entirely successful.  P. Ex. 8 at 3.  Therefore, the Texas Medical Board's actions do not necessarily weigh in Petitioner's favor.  Finally, Petitioner believes that the hearing officer should have considered Petitioner's years of serving the Medicare population as a reason to find the felony conviction was not detrimental to the best

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interests of the Medicare program.  However, that argument is vague as is the record evidence to support it.

Therefore, I uphold CMS's determination that Petitioner's felony offenses are detrimental to the Medicare program and, consequently, uphold the addition of Petitioner's name to the CMS Preclusion List.  See Chaudry, DAB No. 3145 at 18 ("Moreover, having determined that Petitioner's felony offense is detrimental to the Medicare program for purposes of revocation, we can discern no legal basis that would compel CMS to find the offense not detrimental to the Medicare program for purposes of the preclusion list.").

3. CMS was authorized to place Petitioner on the CMS Preclusion List until September 6, 2027.

CMS placed Petitioner on the CMS Preclusion List until September 6, 2027.  P. Ex. 4 at 5.  This is 10 years following Petitioner's conviction on September 6, 2017.  P. Ex. 6 at 1-6.

Petitioner asserts that CMS did not consider reducing the length of time Petitioner would be placed on the CMS Preclusion List.  P. Br. at 5.

When an individual is placed on the CMS Preclusion List based on a felony conviction, the regulations require a 10-year period beginning with the date of the conviction.  The only exception is if CMS determines a shorter length is warranted based on the three factors that CMS considered when determining whether to add the individual's name to the CMS Preclusion List (i.e., severity of the offense, when the offense occurred, and other relevant information).  42 C.F.R. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).

As an initial matter, the regulation is written in a manner that indicates the 10-year length of time on the CMS Preclusion list is the default length of time that is shortened only if CMS determines there is a reason to do so.  Given that an ALJ may not review the length of the re-enrollment bar CMS imposes after revoking the enrollment of a supplier, Vijendra Dave, M.D., DAB No. 2672 at 9 (2016), I question whether an ALJ may review CMS's determination to impose the presumptive length of time for individuals convicted of felonies.

Even if I have such authority, I note that the CMS hearing officer considered the necessary factors when placing Petitioner on the CMS Preclusion List and found that they supported a conclusion that Petitioner's felony offenses were detrimental to the best interests of the Medicare program.  P. Ex. 4 at 5.  When doing so, the hearing officer made it clear that Petitioner's crimes "display[] disdain for another's property, a lack of good judgment, and as stated above, a disregard for all life forms."  P. Ex. 4 at 5.  Earlier in the decision, the hearing officer stated that criminal conduct was "cruel,

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heinous, reprehensible and display that he does not value all life forms, and lacks good judgment."  P. Ex. 4 at 4.  The hearing officer believed that severity of the criminal conduct outweighs other considerations, and I cannot conclude that the hearing officer's view is unreasonable.  Therefore, to the extent I have jurisdiction to do so, I uphold CMS's determination to maintain Petitioner's name on the CMS Preclusion List until September 6, 2027.

IX.  Conclusion

I affirm CMS's denial of Petitioner's application to enroll in the Medicare program.  I also uphold CMS's determination to place Petitioner's name on the CMS Preclusion List until September 6, 2027.