Mathew Manas, DDS, DAB CR6586 (2024)

DECISION

Petitioner, Mathew Manas, DDS, is a dentist, who applied to the Medicare program in March 2019 for the purpose of ordering, certifying and/or prescribing Medicare Part D drugs.  By letter dated April 26, 2019, the Centers for Medicare & Medicaid Services (CMS), through its state contractor Noridian Healthcare Solutions (NHS), notified Petitioner that his Medicare privileges were being revoked effective March 13, 2019.  CMS did so because it learned of Petitioner’s felony conviction for Wire Fraud in violation of 18 U.S.C. § 1343 in the United States District Court, Southern District of Alabama.  Because the felony conviction preceded Petitioner’s enrollment date into the Medicare program, NHS revoked Petitioner’s Medicare enrollment to the date of his first enrollment.  On September 13, 2019, CMS notified Petitioner that he was being placed on the CMS preclusion list, effective February 1, 2020, because his billing privileges had previously been revoked, he was under a reenrollment bar, and the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare Program.

For the reasons discussed below, I affirm CMS’s revocation of Petitioner’s billing privileges, as well as Petitioner’s placement on the Preclusion List and the re-enrollment bar beginning May 26, 2019.

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I. Applicable Law

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.  The Medicare program is administered by CMS, acting on behalf of the Secretary of Health and Human Services (Secretary).  CMS contracts with Medicare administrative contractors, who pay claims to physicians and other practitioners who furnish healthcare services and participate in the program as “suppliers” of services.  To participate, suppliers must enroll in the program 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.

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  After a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is barred from reenrolling in the Medicare program for a minimum of one year, but no more than 10 years.  42 C.F.R. § 424.535(c)(1).  Under 42 C.F.R. § 424.535(a)(3), CMS may revoke a Medicare provider’s billing privileges if the supplier has been convicted of a felony in the preceding 10 years and CMS determines it is detrimental to the best interests of the Medicare program and its beneficiaries.  CMS may revoke a Medicare provider’s billing privileges under 42 C.F.R. § 424.535(a)(4) if the supplier certified as “true” misleading or false information on the enrollment application to be enrolled or to maintain enrollment in the Medicare program.

Effective June 15, 2018, CMS was required to establish a preclusion list as defined by 42 C.F.R. §§ 422.2 and 423.100. CMS adds to the preclusion list suppliers whose Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535; who are currently subject to a reenrollment bar under 42 C.F.R. § 424.535; and whose conduct that is the basis for revocation CMS determines to be detrimental to the best interests of the Medicare program.  No payment under Medicare Parts C and D may be made to anyone on the preclusion list.  42 C.F.R. §§ 422.222, 224; 432.120(c)(6).

II. Background and Procedural History

After Petitioner submitted a March 4, 2019 Medicare enrollment application, the application was approved on March 19, 2019, with an effective date of March 5, 2019.  CMS Exs. 9, 10.  By letter dated April 26, 2019, CMS contractor Noridian informed Petitioner that pursuant to 42 C.F.R. § 424.535(a)(3), his Medicare privileges were revoked effective March 13, 2019.  CMS Ex. 4.  The letter stated that CMS had been made aware of Petitioner’s July 24, 2014, felony conviction for Wire Fraud in violation of 18 U.S.C. § 1343 in the United States District Court, Southern District Court of Alabama.  Id.  The letter further confirmed that in his CMS enrollment application, signed on March 4, 2019, Petitioner had answered “no” in section three of the application, indicating that he did not have any adverse legal history, and thus a violation

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of 42 C.F.R. § 424.535(a)(4) in providing false or misleading information.  Id.  As a result of Petitioner’s felony conviction and his failure to disclose the felony conviction on his Medicare enrollment application, Petitioner’s Medicare enrollment was revoked, and he was placed on a three-year reenrollment bar.  Id.

By letter dated September 13, 2019, CMS informed Petitioner that he was being added to the CMS preclusion list, effective February 1, 2020, because his Medicare billing privileges were revoked, and he was under a reenrollment bar.  CMS Ex. 2.  Petitioner did not request reconsideration of these decisions within the mandatory 60-day period.  In a letter dated June 1, 2021, and received by CMS on June 14, 2021, Petitioner requested reconsideration of CMS’s determination.  CMS Ex. 3.  In a July 15, 2021 letter, CMS informed Petitioner that he had failed to show good cause for his late reconsideration request and therefore CMS was unable to render a decision in this matter.  Further, CMS advised that failure to timely submit a reconsideration request is deemed a waiver of all further administrative review.  CMS Ex. 8.

CMS later issued a Reconsideration Decision on September 17, 2021.  CMS Ex. 1.  Specifically, CMS reiterated that Petitioner had failed to show good cause for his late reconsideration request.  CMS further clarified that CMS had dismissed Petitioner’s appeal as it relates to his Medicare enrollment revocation and would only issue a decision as it relates to his inclusion on the CMS Preclusion List.  CMS confirmed that the conduct underlying Petitioner’s revocation is detrimental to the best interests of the Medicare program and that because of his current revocation and reenrollment bar, CMS upheld Petitioner’s inclusion on the CMS Preclusion List.  CMS Ex. 1 at 4-7.

Petitioner appeals CMS’s Reconsideration decision and CMS moves for summary judgment, which Petitioner opposes.  In an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order), issued on November 12, 2021, the presiding Administrative Law Judge (ALJ)1 set deadlines for the parties to submit pre-hearing briefs in this matter.  The Order also set deadlines for the parties to submit exhibits and witness testimony, as well as any written requests to cross-examine opposing party witnesses.  Additionally, the Order set deadlines for the parties to submit written objections to the opposing party’s proffered exhibits.  Pre-Hearing Order at 4-7.  The Order further provided that an in-person hearing to cross-examine witnesses would be necessary only if a party files admissible written direct testimony and the opposing party requests cross-examination.  Pre-Hearing Order at 7.

CMS submitted a Pre-Hearing Brief and Motion for Summary Judgment (CMS Br.) and 10 Exhibits (CMS Exs. 1-10).  CMS did not submit sworn testimony for any witness.  Petitioner did not object to any of CMS’s proffered exhibits.

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Petitioner submitted a Response to CMS’s Motion for Summary Judgment (P. Br.) and proffered 24 exhibits (P. Exs. A-X).  Although Petitioner identified both himself and Johnathan Birdwell as proposed witnesses, Petitioner included only his own notarized affidavit as an exhibit.  P. Ex. X.  CMS did not request to cross-examine Petitioner.

CMS filed objections to all of Petitioner’s exhibits.  Specifically, CMS objects to Petitioner Exhibits C, V, and W because they are duplicates to CMS Exhibits 9, 1, and 3.  The Pre-Hearing Order specifies that Petitioner should not file as proposed exhibits any documents that CMS has already filed.  Pre-Hearing Order, ¶ 6(d).  CMS additionally objects to Petitioner’s remaining proffered exhibits because they were not submitted with Petitioner’s reconsideration request.  CMS Objections.  CMS relies on 42 C.F.R. § 498.56(e), which requires an ALJ to exclude evidence and not consider it in reaching a decision if the ALJ determines that there was not good cause for submitting new documentary evidence for the first time at the ALJ level.  Id.

While Petitioner submitted Exhibits A through X with his November 12, 2021 request for a hearing and again on January 24, 2022, with his pre-hearing brief and response to CMS’s motion for summary judgment, Petitioner has offered nothing to dispute CMS’s assertion that these documents were not submitted with his request for reconsideration.  Inasmuch as Petitioner has offered nothing to dispute or contradict CMS’s assertion that these exhibits are offered for the first time at the ALJ level, I must find that these exhibits were not offered prior to the Petitioner’s request for a hearing.  Further, because Petitioner has not submitted a basis for its failure to submit these documents prior to his request for hearing, I must also find that there is not good cause for his submitting these exhibits at the ALJ level.  Because no good cause has been offered to justify Petitioner’s failing to submit the documents at the reconsideration stage, I must exclude the evidence and may not consider it in reaching my decision.  See Mohammad Nawaz, M.D., & Mohammad Zaim, M.D., PA, DAB No. 2687 at 12-13 (2016), aff’d Nawaz v. Price, 2017 WL 2798230 (E.D. Tex. 2017) (finding that the ALJ did not abuse his discretion when he did not find good cause to admit documents not offered at the reconsideration stage because the regulation itself provided notice of the requirement to provide all documents on reconsideration).

Finally, CMS specifically objects to Petitioner’s proposed witness, JT Birdwell.  As CMS points out, Petitioner submitted no sworn testimony for this individual.  The Pre-Hearing Order specifies that a witness statement must be submitted in the form of an affidavit made under oath or as a written declaration that the witness signs under penalty of perjury for false testimony.  Pre-Hearing Order at 7, ¶ 11.  Inasmuch as Petitioner has not complied with the Pre-Hearing Order or provided any direct testimony for JT Birdwell, I sustain CMS’s objection to Petitioner’s offering JT Birdwell as a witness.

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Accordingly, for the reasons cited above, I admit CMS Exhibits 1 through 10 and I reject Petitioner’s Exhibits A through X.

Furthermore, there being no requests to cross-examine opposing party witnesses, I find that there is no basis for conducting an in-person hearing2 and I will decide this case based on the written record rather than on summary judgment.  Civil Remedies Division Procedures (CRDP) § 19(d).  I deny CMS’s motion for summary judgment as moot.

III. Issues

Whether CMS had a legitimate basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R § 424.535(a)(3) and (4).

Whether CMS had a legitimate basis to place Petitioner on the preclusion list. 

IV. Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(17), 498.5(1)(2); see also Act § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

V. Discussion

1. CMS had a legitimate basis to revoke Petitioner’s Medicare billing privileges.3

Before I address the basis for CMS’s determination to revoke Petitioner’s billing privileges, I must address CMS’s argument that Petitioner cannot challenge his revocation because he failed to timely submit a request for reconsideration of his Medicare billing privileges.  CMS Br. at 7.  As CMS asserts, 42 C.F.R. § 498.5(l)(1) requires that a provider or supplier who is dissatisfied with an initial determination related to the revocation of Medicare billing privileges may request reconsideration within 60 days of that determination.  See also 42 C.F.R. § 498.22(a).  Furthermore, 42 C.F.R. § 498.20(b) provides that the initial determination is “binding” without further review if a party does not request reconsideration within the required time.  In this

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instance, Petitioner does not deny that he did not seek reconsideration of CMS’s revocation decision until nearly two years after CMS issued its notice of revocation.

When Petitioner signed his Medicare enrollment application on March 4, 2019, he listed an Irvine, California address as his contact and correspondence mailing address.  CMS Ex. 9 at 8.  When Petitioner’s enrollment application was approved in March 2019, the notification letter also informed him that he was required to submit any updates and changes to his enrollment information.  Such changes included practice location or administrative locations.  CMS Ex. 10 at 1.  By letter dated April 26, 2019, CMS informed Petitioner that his Medicare privileges were being revoked effective March 13, 2019, because of his felony conviction and because of his giving false or misleading information on his Medicare enrollment application.  CMS Ex. 4 at 1.  The letter was sent to the address that Petitioner gave as his contact address.  Id.  By letter dated September 13, 2019, CMS informed Petitioner that he was being added to the CMS preclusion list effective February 1, 2020, as CMS had determined that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  CMS Ex. 2 at 1.  This letter was also sent to Petitioner at the address that he included on his application as his designated contact address.  Id.

Petitioner asserts that while CMS’s notice letters in April and September 2019 were sent to Pacific Dental Services (PDS) credentialing office in Irvine, California, he no longer worked there at the time.  He contends that PDS failed to inform him of the notice and that he only became aware that his Medicare billing privileges were revoked in May 2020, after he contacted the Nevada Medicaid Provider Enrollment Department.4  P. Br. at 2.

Despite Petitioner’s claims that he ceased to work for PDS, he submitted no evidence to demonstrate that he ever attempted to provide CMS or its contractor his updated contact information.  CMS received Petitioner’s reconsideration request on June 14, 2021.  See CMS Ex. 1 at 1.  Petitioner submits that the reason that his reconsideration request was outside the permitted time was because of the breakdown in communication from CMS and PDS and thus he has shown good cause for the delay.  P. Br. at 7.  While CMS granted a good cause waiver for Petitioner’s reconsideration request concerning his placement on the preclusion list, CMS dismissed Petitioner’s appeal as it relates to his Medicare enrollment revocation as CMS determined that he had failed to show good cause for his late reconsideration request.  CMS Ex. 1 at 4.

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In the matter of Resource Health Care, Inc., DAB No. 3063 (2022), the Board considered a similar argument advanced by a petitioner whose Medicare billing privileges were revoked.  The petitioner argued that the revocation notice was allegedly mailed to the wrong address and therefore he did not timely file a request for reconsideration.  Resource Health Care, Inc., DAB No. 3063 at 4.  Citing its earlier decisions in Joseph L. Russino, M.D., DAB No. 3057 at 6-7, (2022) and Rollington Ferguson, M.D., DAB No. 2949 at 3 (2019), the Board pointed out that the petitioner was not entitled to ALJ review of CMS’s dismissal of the petitioner’s request for reconsideration or its determination that the petitioner failed to show good cause for the late filing.  Id. at 5.  Citing 42 C.F.R. § 498.20(b), the Board determined that the absence of a reconsidered determination rendered the contractor’s initial determination binding and administratively final.  Id.

Thus, I have no authority to review CMS’s dismissal of Petitioner’s request for reconsideration of the revocation of his enrollment application.

Nevertheless, for completeness in my analysis, I will address the underlying basis for CMS’s revocation of Petitioner’s enrollment application, as it provides a foundation for Petitioner’s inclusion on the CMS preclusion list.  Petitioner does not dispute that on July 24, 2014, he was convicted of Wire Fraud, in violation of 18 U.S.C. § 1343, a felony, in the United States District Court for the Southern District of Alabama, following a guilty plea.  CMS Exs. 6, 7; P. Br. at 3.  On March 4, 2019, Petitioner signed a CMS-855O enrollment application.  Section 3 of the application requested information regarding any final adverse legal actions and specifically included any federal or state felony convictions within the preceding 10 years.  The application further included the question as to whether the applicant had ever had a final adverse legal action imposed against him.  Petitioner marked “No.”  CMS Ex. 9 at 6.

CMS may revoke a Medicare provider’s billing privileges under 42 C.F.R. § 424.535(a)(3) if the r or provider has been convicted of a felony in the preceding 10 years and CMS determines it is detrimental to the best interests of the Medicare program and its beneficiaries.  CMS may also revoke a Medicare provider’s billing privileges under 42 C.F.R. § 424.535(a)(4) if the provider certified as “true” misleading or false information on the enrollment application to be enrolled or to maintain enrollment in the Medicare program.

Petitioner does not dispute that he was convicted of wire fraud as determined by CMS.  Rather, Petitioner argues that the Medicare application, which contained misleading information concerning his conviction, was submitted in error and without his knowledge.  P. Br. at 3-5.

Petitioner submits that in early 2019, he held a part-time position with an office managed by PDS, located in Las Vegas, Nevada.  While employed at PDS, Petitioner received emails from JT Bridwell (Bridwell), an employee with PDS, who was involved with

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credentialing.  CMS Ex. 1 at 3.  Petitioner submits that he electronically signed and submitted the Medicare enrollment application through Bridwell.  P. Br. at 3-4.  Petitioner claims that while the completed application sent to him by Bridwell incorrectly reflected no adverse legal action, he attempted to electronically correct the application.  Id.  When he was unable to correct the document, he signed the application and sent it to Bridwell for Bridwell or someone else at PDS to revise the application to show that he had an adverse legal action imposed against him.  P. Br. at 4-5.  Petitioner asserts that on March 4, 2019, PDS submitted the Medicare enrollment application without revising it to reflect the previous adverse legal action imposed against him.  Id. at 5.  Petitioner contends that PDS did so without his knowledge or consent, and despite his explicit instructions not to unless the application was corrected to reflect the previous felony conviction.  Id.

Even though Petitioner acknowledges that he did not file a timely request for reconsideration, he nevertheless argues that PDS erroneously submitted the misleading application without his consent, and thus he asserts that he did not knowingly submit misleading or false information in his application.  P. Br. at 12-13.  While he does not deny his felony conviction, he asserts:  “that the revocation of his Medicare privileges was based only on his previous felony conviction under § 424.535(a)(3).”  P. Br. at 15.  Petitioner places great emphasis on the fact that PDS submitted his application, rather than himself.  Yet, Petitioner nevertheless admits the felony conviction that he received less than 10 years before his Medicare application.  See P. Br. at 3-4, 11, 13.  Petitioner’s felony conviction is sufficient alone for revocation despite Petitioner’s submission of misleading and false information in his application.  42 C.F.R. § 424.535(a)(3).  Specifically, I note that where CMS cites multiple grounds for revocation, the revocation “need only be upheld on one regulatory ground in order to be sustained.”  Lila Gorovits, M.D., P.C., DAB No. 2985 at 10 (2020); see also AR Testing Corp., DAB No. 2679 at 4 n. 7 (2016).

Furthermore, a supplier cannot escape his obligation to report a felony conviction by shifting the responsibility to someone else.  Angela R. Styles, DAB No. 2882 at 10 (2018).

Thus, despite my finding that I have no jurisdiction to review CMS’s dismissal of Petitioner’s request for reconsideration of the revocation of his Medicare billing privileges, the evidence establishes that CMS had a legitimate basis for doing so.

2. The evidence establishes that CMS had a legitimate basis to include Petitioner on the preclusion list, pursuant to the provisions of 42 C.F.R. §§ 422.2 and 423.100.

As discussed above, CMS determined to include Petitioner on the CMS preclusion list, effective February 1, 2020.  “Preclusion list” is defined in 42 C.F.R. § 422.2 as follows:

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Preclusion list means a CMS compiled list of individuals and entities that –

(1) Meet all the following requirements:

(i) The individual or entity is currently revoked from Medicare for a reason other than that stated in [42 C.F.R.] § 424.535(a)(3) of this chapter.

(ii) The individual or entity is currently under a reenrollment bar under [42 C.F.R.] § 424.535(c).

(iii) CMS determines that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph (1)(iii), CMS considers the following factors:

(A) The seriousness 0f the conduct underlying the individual’s or entity’s revocation.

(B) The degree to which the individual’s or entity’s conduct could affect the integrity of the Medicare program.

(C) Any other evidence that CMS deems relevant to its determination.

In considering the regulatory criteria for placement on the preclusion list, I find that CMS has met the three factors for the inclusion of Petitioner on the preclusion list.  Petitioner’s Medicare enrollment was revoked, effective March 13, 2019, pursuant to 42 C.F.R. § 424.535(a)(3) and (a)(4) as the result of his felony conviction and his failure to disclose the felony conviction on his Medicare enrollment application.  The revocation became final and binding when Petitioner did not submit a request for reconsideration within the requisite time frame.  Further, Petitioner was subject to a three-year reenrollment bar beginning May 26, 2019, pursuant to § 424.535(c).  CMS Ex. 4 at 2.  Thus, there is no question that CMS revoked Petitioner’s Medicare enrollment and that Petitioner is currently under a reenrollment bar.  Therefore, the only question is whether the underlying basis for revocation is detrimental to the best interests of the Medicare program.  In making this determination, CMS considers the following factors:

(a) The seriousness of the conduct underlying the revocation.
(b) The degree to which the individual’s conduct could affect the integrity of the Medicare program.
(c) Any other evidence that CMS deems relevant to its determination.

42 C.F.R. § 422.2.

In revoking Petitioner’s enrollment, CMS considered the felony offense of Wire Fraud to be severe in nature.  CMS determined Petitioner’s conduct demonstrated a serious lack of integrity and trustworthiness.  CMS Ex. 1 at 5.  CMS found that from September 16, 2008, to about May 7, 2010, Petitioner devised a scheme to defraud the United Sates

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Army National Guard (USANG) and its contractor to obtain money by means of materially false and fraudulent pretenses.  Id. at 4.  Without fulfilling any of his obligations as a Recruiting Assistant in the United States Army Guard Recruiting Assistance Program, Petitioner nominated recruits with improperly obtained personally identifiable information (PII) to join the USANG without the recruits’ knowledge and without making required disclosures.  Id. at 5.  CMS determined Petitioner’s scheme to not perform his duties as Recruiting Assistant and to defraud the USANG via Wire Fraud to be very serious and extremely concerning to CMS, as the agency responsible for safeguarding the Medicare Trust Funds.  Id.  CMS considered providing false and misleading information to also be serious.  Id.

With respect to the second factor, CMS considered that Petitioner, in commission of his felony offense, improperly obtained PII of multiple individuals and fraudulently represented information to receive payments to which he was not entitled.  CMS Ex. 1 at 5.  CMS also considered that the Petitioner’s actions demonstrate that he is a potential risk to the PII of Medicare beneficiaries if he is enrolled in the Medicare program.  Id.  It was noted that in regaining enrollment, Petitioner would again have access to Medicare beneficiaries’ protected health information, and possibly financial and personal payment information.  Id.  Because patient safety and safeguarding the integrity of the Medicare program is of upmost importance, CMS found it worrisome that this behavior could be duplicated in the Medicare program.  Id.  Therefore, CMS determined that to allow Petitioner to participate in the Medicare program as a supplier threatens the integrity of the Medicare program because his actions that led to his felony conviction have demonstrated his propensity to be dishonest and noncompliant with rules.  Id. at 5-6.

Finally, with respect to the third factor, CMS found it relevant that the felony offense that Petitioner was convicted of is deemed per se detrimental by CMS.  CMS Ex. 1 at 6.  Under §§ 424.530(a)(3)(i)(B) and 424.535(a)(3)(ii)(B), these offenses include, but are not limited in scope or severity to, financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and other similar crimes.  CMS determined that Petitioner’s felony offense of Wire Fraud is akin to these listed financial crimes and is therefore per se detrimental to the best interest of the Medicare program and its beneficiaries.  Id.  CMS also took into consideration that Petitioner’s felonious actions continued over a period of nearly two years with no apparent regard for who his actions violated or harmed.  Id.

I conclude that the reconsidered determination provided adequate reasoning for placing Petitioner’s name on the CMS Preclusion List.  Because CMS has established a basis for placing Petitioner on the Preclusion List, I must uphold its determination to do so.  See Wendell Foo, M.D., DAB No. 2904 at 3 (2018); 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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VI. Conclusion

I affirm CMS’s revocation of Petitioner’s enrollment in the Medicare program and CMS’s placement of Petitioner’s name on the CMS Preclusion List.