Lee B. Vitaliano, DAB CR6644 (2025)

The Medicare enrollment and billing privileges of Petitioner, Lee B. Vitaliano, are revoked pursuant to 42 C.F.R. § 424.535(a)(3),1 effective October 15, 2021.  Petitioner is barred from reenrolling in Medicare for 10 years from December 7, 2023 through December 7, 2033.  Petitioner’s name will appear on the Centers for Medicare & Medicaid Services (CMS) preclusion list from May 23, 2024 through August 26, 2030.

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I.  Background and Procedural History

On November 7, 2023, First Coast Service Options, Inc., a Medicare administrative contractor (MAC), notified Petitioner that her Medicare enrollment and billing privileges were revoked effective October 15, 2021.  The MAC cited 42 C.F.R. § 424.535(a)(3) and (4) as the authority for revocation based on Petitioner’s August 26, 2020 felony conviction in Broward County, Florida, and her failure to report the conviction.  The MAC informed Petitioner that she was barred from reenrolling in Medicare for 10 years beginning 30 days after the postmark of the November 7, 2023 notice.  The MAC also informed Petitioner that her name would be added to the CMS preclusion list effective 65 days from the date of the November 7, 2023 notice or the date of a reconsidered determination if reconsideration was requested.  CMS Exhibit (Ex.) 1 at 15-16.

Petitioner requested a reconsidered determination by letter dated January 2, 2024.  CMS Ex. 1 at 10-12.  On May 23, 2024, a CMS hearing officer upheld the revocation pursuant to 42 C.F.R. § 424.535(a)(3) and (4), the 10-year bar to reenrollment, and placing Petitioner’s name on the CMS preclusion list.  CMS Ex. 1 at 1-9.

Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ) on July 17, 2024.  On July 18, 2024, the case was assigned to me for hearing and decision and my Standing Order was issued.  Petitioner’s request for hearing was timely, the parties have not challenged my authority to decide this case, and I have jurisdiction.

On August 15, 2024, CMS filed a prehearing brief and motion for summary judgment (CMS Br.) and CMS Exs. 1 through 3.  On September 11, 2024, Petitioner filed her amended prehearing brief and opposition to CMS’s motion for summary judgment (P. Br.).  Petitioner filed Petitioner’s Exhibit (P. Ex.) 1 on September 27, 2024.  CMS waived filing a reply brief on October 4, 2024.  Petitioner did not object to my consideration of CMS Exs. 1, 2, and 3, and they are admitted as evidence.  CMS did not object to my consideration of P. Ex. 1, which is also in evidence as CMS Ex. 1 at 14, and P. Ex. 1 is admitted as evidence.2

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II.    Discussion

1.  Applicable Law

Section 1831 of the Social Security Act (Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.3  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).

The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for the enrollment in Medicare of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations, such as revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505, a supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.

The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS and the MACs.  42 C.F.R. § 424.535.  CMS or a MAC may revoke an enrolled supplier’s Medicare enrollment and billing privileges and supplier agreement for any of the reasons listed in 42 C.F.R. § 424.535.  The effective date of the revocation is

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controlled by 42 C.F.R. § 424.535(g).  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, except in limited circumstances that do not exist in this case.  42 C.F.R. § 424.535(c).

Effective June 15, 2018, CMS was required to establish a preclusion list as defined by 42 C.F.R. §§ 422.2 and 423.100.  There is only one preclusion list.  83 Fed. Reg. 16,440, 16,641-67 (Apr. 16, 2018).  CMS adds to the preclusion list the names of individuals and entities as provided by the definition of the preclusion list:

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

(1)  Meet all of the following requirements:

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

(ii)  The individual or entity is currently under a reenrollment bar under § 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 of 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; or

(2)  Meet both of the following requirements:

(i)  The individual or entity has engaged in behavior, other than that described in § 424.535(a)(3) of this

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chapter, for which CMS could have revoked the individual or entity to the extent applicable had they been enrolled in Medicare.

(ii)  CMS determines that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program.  In making this determination under this paragraph (2)(ii), CMS considers the following factors:

(A)  The seriousness of the conduct involved.

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

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

(3)  The individual or entity, regardless of whether they are or were enrolled in Medicare, has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.  Factors that CMS considers in making such a determination under this paragraph (3) are—

(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 (italics in original, bold added).  The definition applicable to Medicare Part D at 42 C.F.R. § 423.100 is virtually identical except that the regulation refers to “prescriber” rather than “individual or entity” and no “(3)” appears in the text of the third criteria.  No payment under Medicare Parts C and D may be made to anyone on the preclusion list.  42 C.F.R. §§ 422.222-.224, 422.504(i)(2)(v), 423.120(c)(6).  CMS must notify a supplier in writing that the supplier is being added to the preclusion list, the basis for the action, and inform the supplier of the right to ALJ review and appeal pursuant to 42 C.F.R. Part 498.  42 C.F.R. §§ 422.222(a)(2), 423.120(c)(6)(v).

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A supplier whose enrollment and billing privileges have been revoked or who has been placed on the preclusion list may request reconsideration and review as provided by 42 C.F.R. Part 498.  42 C.F.R. §§ 424.545(a), 422.222(a)(2), 423.120(c)(6)(v), 498.5(l).  A supplier submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a).  CMS or its contractor must give notice of its reconsidered determination to the supplier, giving the reasons for its determination and specifying the conditions or requirements the supplier failed to meet, and the right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the supplier, the supplier has the right to request a hearing by an ALJ and further review by the Board.  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.545, 498.3(b)(17), (20), 498.5.  A hearing on the record, also known as an oral hearing, is required under the Act, unless waived.  Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  CMS is also granted the right to request ALJ review of a reconsidered determination with which it is dissatisfied.  42 C.F.R. § 498.5(l)(2).  The supplier bears the burden to demonstrate that it meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c). 

Revocation and preclusion list review is strictly limited to whether there is a basis for the revocation and for adding the supplier to the CMS preclusion list.  Douglas Bradley, M.D., DAB No. 2663 at 13 (2015); 83 Fed. Reg. at 16,642.  The Board has consistently held that ALJ review of the CMS revocation determination is limited to whether CMS had a legal basis for revocation.  Letantia Bussell, M.D., DAB No. 2196 at 10 (2008).  If CMS establishes the elements necessary for revocation, “revocation must be sustained, and neither the [ALJ] nor the Board may ‘substitute its discretion for that of CMS in determining whether revocation is appropriate under all the circumstances.’”  Douglas Bradley, M.D., DAB No. 2663 at 13 (quoting Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2008), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010)).  The duration of a bar to reenrollment imposed by CMS is not subject to review by an ALJ or the Board.  Vijendra Dave, M.D., DAB No. 2672 at 11 (2016); Heidy Woody, NP, DAB No. 3102 at 19-21 (2013).

2.  Issues

Whether there was a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges; and

Whether there was a basis to include Petitioner on the CMS preclusion list.

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3.  Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the undisputed facts and analysis.

1.  Summary judgment is appropriate.

CMS filed a motion for summary judgment.  Petitioner opposes CMS’s motion.  A supplier whose enrollment has been revoked and/or who has been placed on the preclusion list has a right to a hearing and judicial review, and a hearing on the record is required under the Act.  Act §§ 205(b) (42 U.S.C. § 405(b)), 1866(h)(1), (j) (42 U.S.C. §§ 1395cc(h)(1), (j)); 42 C.F.R. §§ 498.3(b)(17), 498.5; Crestview, 373 F.3d at 748-51.  A party may waive appearance at an oral hearing, but the party must do so affirmatively in writing.  42 C.F.R. § 498.66(a).  In this case, Petitioner requested and has not waived an oral hearing.  P. Br. at 12.  Accordingly, disposition on the written record alone is not permissible, unless summary judgment is appropriate as I conclude it is in this case.

Summary judgment is not automatic upon request but is limited to certain specific conditions.  The Secretary’s regulations that establish the procedures to be followed in adjudicating Petitioner’s case are at 42 C.F.R. Part 498.  42 C.F.R. §§ 405.800, 405.803(a), 424.545(a), 498.3(b)(17), (20).  The regulations do not establish a summary judgment procedure or recognize such a procedure.  However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board also has recognized that the Federal Rules of Civil Procedure (Fed. R. Civ. P.) do not apply in administrative adjudications such as this.  However, the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Standing Order.  The parties were given notice by the Standing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Standing Order ¶¶ D, G.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the

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denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that, if proven, would affect the outcome of the case.  Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 4-5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5-6 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differ from that used in resolving a case on the merits after a hearing or when hearing is waived.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. Part 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. Part 498.  Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

Viewing the evidence before me in a light most favorable to Petitioner and drawing all inferences in Petitioner’s favor, I conclude as discussed in the following analysis that there are no genuine disputes as to any material facts that require a hearing pertinent to revocation under 42 C.F.R. § 424.535(a)(3), the reenrollment bar, or the addition of Petitioner’s name to the CMS preclusion list.  Issues raised by Petitioner must be resolved against her based on the application of law to the undisputed facts.  Petitioner argues summary judgment is not appropriate because there are genuine disputes of material facts that must be resolved regarding her failure to report her conviction.  P. Br. at 11-12.  Petitioner’s arguments relate to revocation pursuant to 42 C.F.R. § 424.535(a)(4).  But I conclude that there are no genuine disputes of material fact related to revocation pursuant to 42 C.F.R. § 424.535(a)(3).  CMS or the MAC may revoke for any one of the grounds established by 42 C.F.R. § 424.535(a).  Donna Maneice, M.D., DAB No. 2826 at 8 (2017) (there need be only one ground for revocation).  Therefore, it is not necessary to also find and conclude that CMS and the MAC had a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(4).  There is no issue of fact that requires a trial for revocation pursuant to 42 C.F.R. § 424.535(a)(3), and CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate.

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2.  Petitioner was convicted of a felony criminal offense on August 26, 2020, when her guilty plea to one count of second-degree grand theft was accepted by a judge in the 17th Judicial Circuit in and for Broward County, Florida (state court) but adjudication of guilt and imposition of sentence were withheld.  42 C.F.R. §§ 1001.2, 424.535(a)(3)(i).
3. The Secretary has determined and provided by regulation that CMS may revoke the Medicare enrollment of a supplier who, within the preceding 10 years, was convicted of a felony that CMS determines is detrimental to the best interests of Medicare and its beneficiaries.  42 C.F.R. § 424.535(a)(3)(i).
4. Petitioner’s felony conviction of the financial crime of second-degree grand theft is per se detrimental to the best interests of Medicare and its beneficiaries under 42 C.F.R. § 424.535(a)(3)(ii)(B).
5. CMS also determined that Petitioner’s felony conviction was detrimental to Medicare and its beneficiaries based on the case-specific analysis permitted under 42 C.F.R. § 424.535(a)(3)(i).
6. Petitioner’s conviction occurred during the 10 years preceding the initial determination to revoke Petitioner’s Medicare enrollment and billing privileges.  42 C.F.R. § 424.535(a)(3)(i).
7. There is a basis for the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3).

The CMS hearing officer upheld the revocation pursuant to 42 C.F.R. § 424.535(a)(3) and (4).  CMS Ex. 1 at 1, 3-4, 7.  But under 42 C.F.R. § 424.535(a), revocation is authorized for any one of the grounds listed in 42 C.F.R. § 424.535(a).  Donna Maneice, M.D., DAB No. 2826 at 8.  Given my limited scope of review in cases such as this and in the interest of judicial economy, I need consider only 42 C.F.R. § 424.535(a)(3) to determine that there is a basis for revocation.  Review of revocation and addition to the CMS preclusion list is strictly limited to whether there was a basis for revocation and addition to the CMS preclusion list.  Douglas Bradley, M.D., DAB No. 2663 at 13; Letantia Bussell, M.D., DAB No. 2196 at 10; 83 Fed. Reg. at 16,642.  An ALJ and the Board may not review the duration of a bar to reenrollment.  Heidy Woody, NP, DAB No. 3102 at 19-21.  Therefore, finding more than one basis for revocation would have no impact on the duration of the bar to reenrollment imposed by CMS against Petitioner or

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affect placing Petitioner’s name on the preclusion list.  Accordingly, revocation based on 42 C.F.R. § 424.535(a)(4) is not analyzed further.

1.  Undisputed Facts

The parties were advised in the Standing Order ¶ G that, for purposes of ruling on a motion for summary judgment, a fact alleged and not specifically denied would be accepted as true and offered evidence would be considered admissible and true absent a specific objection.  The following findings of fact are based upon the undisputed or conceded facts.  I do not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence in deciding a summary judgment motion.  The evidence is viewed in the light most favorable to Petitioner, the non-movant, with all inferences drawn in Petitioner’s favor.

On April 9, 2018, Petitioner was charged in the state court by an information alleging felony second-degree grand theft.  The information alleged that Petitioner, between April 9, 2013 and June 30, 2016, unlawfully and knowingly obtained $100,000 or more from Efficiency Enterprises, Inc. and/or Efficiency Enterprises of Tampa, LLC (Efficiency), with the intent to temporarily or permanently deprive Efficiency of the money and to appropriate the money to her own use or that of another not entitled to the money, in violation of various sections of the Florida statutes.  CMS Ex. 1 at 19-20, 51.

On August 26, 2020, Petitioner pleaded guilty to the felony count of second‑degree grand theft alleged by the information.  The state court withheld adjudication, stayed Petitioner’s case, withheld imposition of sentence, and placed her on probation for 15 years.  CMS Ex. 1 at 21, 52-53.

Petitioner was enrolled in Medicare effective October 15, 2021, as a clinical social worker with a Florida license.  CMS Ex. 1 at 10, 28-49; CMS Ex. 2 at 2, 5-6; CMS Ex. 3 at 1; P. Br. at 1.

On November 27, 2023, the MAC issued the initial determination to revoke in this case, which is within 10 years of the date of Petitioner’s August 26, 2020 conviction.  CMS Ex. 1 at 15-18.

On May 23, 2024, CMS issued the reconsidered determination in this case.  CMS Ex. 1 at 1-9.

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2.  Analysis

Congress granted the Secretary authority to revoke the enrollment of a provider or supplier convicted under federal or state law of a felony offense that the Secretary determines is detrimental to Medicare or its beneficiaries.  Act § 1866(b)(2)(D).  CMS is delegated authority by the Secretary to revoke a provider’s or supplier’s Medicare enrollment and billing privileges for any of the reasons listed in 42 C.F.R. § 424.535(a).  CMS needs only one basis under 42 C.F.R. § 424.535(a) to revoke a provider’s or supplier’s Medicare enrollment and billing privileges.  I conclude CMS had a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3).

My scope of review in a supplier enrollment revocation is narrow.  If I conclude that CMS had a regulatory basis for revocation under 42 C.F.R. § 424.535(a), I may not refuse to apply the regulation and I must uphold the revocation.  Douglas Bradley, M.D., DAB No. 2663 at 13 (CMS’s revocation authority is discretionary, but an ALJ and the Board are limited to deciding whether CMS had a legal basis for revocation and may not substitute their discretion for that of CMS in determining whether revocation is appropriate under all the circumstances); Stanley Beekman, D.P.M., DAB No. 2650 at 10 (2015) (an ALJ and the Board must sustain a revocation “[i]f the record establishes that the regulatory elements are satisfied”); Letantia Bussell, M.D., DAB No. 2196 at 13 (the only issue before an ALJ and the Board in enrollment cases is whether CMS has “established a legal basis for its actions”).  Therefore, based on the analysis in these prior Board decisions, my scope of review is limited to determining whether CMS established a lawful basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3).

Pursuant to 42 C.F.R. § 424.535(a)(3)(i), CMS has the authority to revoke a supplier’s billing privileges if CMS determines that the “supplier was, within the preceding 10 years, convicted (as that term is defined in 42 [C.F.R. §] 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  The Secretary has specified crimes that are per se detrimental to the best interests of the program and its beneficiaries in 42 C.F.R. § 424.535(a)(3)(ii).  The listing of per se detrimental felonies in 42 C.F.R. § 424.535(a)(3)(ii) is not exhaustive, but specifically permits revocation for detrimental felonies like the crimes listed.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 10.  The Board has concluded that “CMS may revoke Medicare billing privileges under the authority of section 424.535(a)(3) based on any financial crime, regardless of whether the supplier’s particular financial crime is specified in the regulation’s illustrative list of financial crimes.”  Stanley Beekman, D.P.M, DAB No. 2650 at 7.

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The elements necessary for revocation pursuant to 42 C.F.R. § 424.535(a)(3) are:  (1) the supplier was convicted of a federal or state felony offense; (2) the conviction occurred within the 10 years preceding the revocation action; and (3) the Secretary has specified that the conviction is per se detrimental in 42 C.F.R. § 424.535(a)(3)(ii) or CMS has determined on a case-by-case basis under 42 C.F.R. § 424.535(a)(3)(i) that the supplier’s felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  Fady Fayad, M.D., DAB No. 2266 at 7-8 (2009); Michael Scott Edwards, OD, & M. Scott Edwards, OD, PA, DAB No. 2975 at 9-11 (2019); Neil Niren, M.D. & Neil Niren, M.D., P.C., DAB No. 2856 (2018).

Petitioner does not dispute that the state court action amounted to a felony conviction within the meaning of 42 C.F.R. § 1001.2.  RFH at 1; P. Br. at 8-9.  The regulation provides one is convicted in a federal, state, or local court when:  (1) a judgment of conviction is entered; (2) a finding of guilt has been made; (3) a guilty plea or no contest plea has been accepted, or (4) an individual or entity enters into a first offender, deferred adjudication, or other program or arrangement where a judgment of conviction is withheld.  42 C.F.R. § 1001.2.  Petitioner pleaded guilty to the single count of second-degree grand theft.  The state court did not enter a judgment of guilt, the court records in evidence do not show a finding of guilt was made, and the records do not state the guilty plea was accepted.  However, the state court withheld adjudication pursuant to Fla. Stat § 948.01 granting Petitioner deferred adjudication (CMS Ex. 1 at 21, 52; RFH at 3; P. Br. at 2), which meets the definition of a conviction under 42 C.F.R. § 1001.2.  There is also no dispute that on August 26, 2020, the state court received Petitioner’s guilty plea, withheld adjudication, and placed Petitioner on probation for 15 years.  CMS Ex. 1 at 21, 52.  Therefore, August 26, 2020, is the date of Petitioner’s conviction.  There is no dispute that the MAC’s November 7, 2023 initial determination to revoke was issued within 10 years of Petitioner’s August 26, 2020 conviction.  Accordingly, I conclude that the first two elements necessary for revocation under 42 C.F.R. § 424.535(a)(3) are satisfied.

The third element necessary for revocation under 42 C.F.R. § 424.535(a)(3) is that the offense of which Petitioner was convicted was per se detrimental to the best interests of Medicare and its beneficiaries or the MAC and CMS made a case-specific determination that Petitioner’s offense was detrimental.   42 C.F.R. § 424.535(a)(3).

Per se detrimental offenses listed in 42 C.F.R. § 424.535(a)(3)(ii)(B) are “[f]inancial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes . . . .”  The charge to which Petitioner pleaded guilty alleged that she took $100,000 from Efficiency with the intent to deprive Efficiency of the money temporarily or permanently and appropriate the money to her use or that of another who was not entitled to the money.  CMS Ex. 1 at 21, 51-52.  The charge clearly alleged a financial crime of theft which Petitioner admitted by pleading guilty.  CMS Ex. 1 at 21.  I conclude

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Petitioner’s crime is a financial crime and for that reason her crime is per se detrimental under 42 C.F.R. § 424.535(a)(3)(ii)(B).

The CMS hearing officer also conducted a case-specific analysis and determined that Petitioner’s conviction was detrimental to Medicare and its beneficiaries.  The hearing officer concluded that Petitioner’s conduct showed untrustworthiness, lack of integrity, and poor judgment that place the Medicare funds at risk.  The hearing officer concluded that placing Medicare care funds at risk is potentially detrimental to Medicare and its beneficiaries.  CMS Ex. 1 at 3.  Arguably my review of the hearing officer’s case-specific determination is limited to finding that the review was done.  Even if I could substitute my judgment for that of the hearing officer, I would not do so.  The Secretary has, through notice and comment rulemaking, notified providers and suppliers participating in Medicare that offenses like that committed by Petitioner are per se detrimental.  Further, the facts before me are no different than those considered by the CMS hearing officer and those facts clearly support a conclusion that Petitioner’s conduct was detrimental to the best interests of Medicare and its beneficiaries.

I conclude that the undisputed facts satisfy the elements necessary to establish a basis for revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(3).

In her request for hearing, Petitioner requested that I recommend to CMS to allow her to withdraw her Medicare enrollment application.  CMS Ex. 1 at 45; RFH at 1, 4.   Petitioner suggests that if she was permitted to withdraw her application, she could be removed from the CMS preclusion list and continue to practice and submit claims to other insurance carriers.  RFH at 1.  I have no authority under the Act or regulations to grant Petitioner such relief.  Petitioner does not pursue this argument in her brief.

Petitioner admits in her request for hearing that her conviction would likely have precluded her enrollment in Medicare.  However, she disputes that her failure to report her conviction was intentionally false or misleading arguing against revocation pursuant to 42 C.F.R. § 424.535(a)(4).  RFH at 1-2.  She disputes that her conduct was severe and serious, warranting a 10-year reenrollment bar.  She concedes that one with a felony conviction may be added to the CMS preclusion list, but she disputes the finding that her conduct was detrimental to the best interests of Medicare and its beneficiaries.  RFH at 2.

Petitioner’s brief focuses upon revocation pursuant to 42 C.F.R. § 424.535(a)(4).  Petitioner argues that her Medicare enrollment and billing privileges were revoked due to an erroneous entry on her enrollment application.  P. Br. at 1-3.  Petitioner also asserts that the CMS hearing officer erred by concluding Petitioner’s “conduct in making the erroneous response, was severe and serious and detrimental to the best interests of the Medicare program.”  P. Br. at 3.  Petitioner asserts that whether her response in the

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Medicare application that she had no adverse legal history was intentionally false and misleading is a material issue of fact that needs to be decided.  P. Br. at 5.  Petitioner also argues that whether her erroneous response on her Medicare application was severe and serious and detrimental to the best interest of Medicare is also a material issue that must be decided.  P. Br. at 9.  Petitioner’s arguments do not defeat summary judgment and are not grounds for any relief.

My conclusion is that CMS has a basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) based on her conviction of the felony offense of second-degree grand theft.  CMS needs only one basis for revocation under 42 C.F.R. § 424.535(a).  Therefore, I conclude it is not necessary to resolve any issues raised by Petitioner regarding revocation pursuant to 42 C.F.R. § 424.535(a)(4), even if Petitioner’s argument in that regard had any merit.  It is not necessary for me to consider Petitioner’s state of mind when she completed and signed her Medicare application on October 8, 2021.  CMS Ex. 1 at 45.  It is also not necessary for me to review any of the CMS hearing officer’s findings and conclusions related to revocation under 42 C.F.R. § 424.535(a)(4).  I do not consider revocation under 42 C.F.R. § 424.535(a)(4) as a basis for imposing the reenrollment bar or adding Petitioner’s name to the CMS preclusion list.

Many of Petitioner’s arguments regarding the basis for revocation, the duration of the reenrollment bar, and the addition of her name to the CMS preclusion list could be viewed as requests for equitable relief.  But, when I determine, as I have here, that CMS had a basis for revocation, I have no authority to substitute my judgment for that of CMS and void the revocation based on equitable considerations or provide any other equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  Furthermore, I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

8.  The effective date of revocation of Petitioner’s Medicare enrollment and billing privileges is October 15, 2021, the date Petitioner initially enrolled in Medicare following her August 26, 2020 conviction.  42 C.F.R. § 424.535(g).

Generally, revocation is effective 30 days after CMS or the MAC mails notice of its determination to revoke, with some exceptions, such as when the revocation is based on a felony conviction.  42 C.F.R. § 424.535(g)(1).  The effective date of revocation based on a felony conviction is the date of the felony conviction.  42 C.F.R. § 424.535(g)(2)(ii).  
There is no dispute that Petitioner’s conviction was on August 26, 2020.  However, the effective date of her first Medicare enrollment and billing privileges was October 15, 2021.  CMS Ex. 3.  The MAC revoked Petitioner’s Medicare enrollment and billing privileges, effective October 15, 2021.  The MAC explained that because her conviction

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was before her first enrollment, the MAC revoked effective the date of Petitioner’s first enrollment.  CMS Ex. 1 at 15.  The CMS hearing officer did not change the effective date of revocation.  CMS Ex. 1 at 1-9.  I conclude that there is no reason to disturb the determination of the effective date of the revocation pursuant to 42 C.F.R. § 424.535(a)(3).  Therefore, the effective date of the revocation of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) was October 15, 2021.

9.  I have no authority to review CMS’s determination to impose a 10-year bar to Petitioner’s reenrollment in Medicare.
10. The bar to reenrollment began 30 days after the date on which the MAC mailed the notice of revocation, in this case, December 7, 2023, and continues through December 7, 2033.  42 C.F.R. § 424.535(c).

The Secretary requires that when a provider’s or supplier’s Medicare enrollment is revoked, they are barred from participating in Medicare from the effective date of the revocation through the end of a reenrollment bar imposed by CMS.  42 C.F.R. § 424.535(c)(1).  The imposition of the reenrollment bar is triggered by the revocation.  There is no decision by the MAC or CMS that a reenrollment bar will be imposed.  Vijendra Dave, M.D., DAB No. 2672 at 10 (reenrollment bar is “direct and legally mandated consequence” of revocation).  The only decision by the MAC and CMS is the duration of the bar, and that decision is not subject to my review.

When a supplier’s Medicare enrollment and billing privileges are revoked, the supplier is generally barred from reenrolling in the Medicare program for one to 10 years.  42 C.F.R. § 424.535(c).  In this case, the MAC imposed a reenrollment bar of 10 years effective December 7, 2023, 30 days after the postmark of the November 7, 2023 initial determination.4  CMS Ex. 1 at 15-16.  The CMS hearing officer upheld the reenrollment bar.  CMS Ex. 1 at 4.

There is no statutory or regulatory language establishing a right to review of the duration of the reenrollment bar CMS imposes.  Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)); 42 C.F.R. §§ 424.535(c), 424.54, 498.3(b), 498.5.  The Board has repeatedly held that the duration of a revoked supplier’s reenrollment bar is not an appealable initial determination listed in 42 C.F.R. § 498.3(b) and is not subject to ALJ review.  Frank B. Lee, M.D., DAB No. 3170 at 2, 32-33 (2025).

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11. There is a basis for adding Petitioner’s name to the CMS preclusion list from May 23, 2024, the date of the reconsidered determination, through August 26, 2030, the end of the 10-year period following the date of Petitioner’s conviction on August 26, 2020.

Pursuant to 42 C.F.R. §§ 422.2 and 423.100, the preclusion list is a list of individuals or entities compiled by CMS who meet one of three sets of specified criteria.  In this case, the third set of criteria are applicable because Petitioner was convicted of a felony under state or federal law within the previous 10 years.  The third set of criteria are the following:  

(3) The individual or entity, regardless of whether they are or were enrolled in Medicare, has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.  Factors that CMS considers in making such a determination under this paragraph (3) are—

(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 (definition of preclusion list).  The definition of preclusion list under 42 C.F.R. § 423.100 related to the Medicare Part D program is the same except for the use of the term “prescriber” rather than “individual or entity” and “(3)” does not appear in the text.  Under the third set of criteria, whether an individual’s, entity’s, or prescriber’s Medicare enrollment was or could have been revoked and a reenrollment bar imposed is not a consideration.  It is the existence of a felony conviction within the preceding 10 years that CMS determines is detrimental to the best interests of Medicare that provides the basis for adding the individual’s, entity’s, or prescriber’s name to the CMS preclusion list.  In deciding to add a name to the preclusion list, CMS must consider the severity of the offense, when the offense occurred, and any other information CMS deems relevant.

It is undisputed that Petitioner was convicted of a federal felony offense within the 10 years preceding the CMS determination to add her name to the preclusion list.  The hearing officer’s reconsidered determination shows that she determined that Petitioner’s offense was detrimental to the best interest of Medicare, considering the severity of the

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offense, when it occurred, and other information.  The CMS hearing officer found Petitioner’s offense to be severe based on the underlying criminal conduct.  She found that the conviction was recent.  As other information, the hearing officer considered that she had found Petitioner’s crime was detrimental to Medicare and its beneficiaries.  She found that Petitioner’s crime jeopardized the integrity of the Medicare program including public confidence in Medicare participating providers and suppliers and the quality of the care and services they provide.  The CMS hearing officer concluded upon consideration of the three factors, that Petitioner’s conviction was detrimental to the best interests of the Medicare program and a proper basis for adding Petitioner’s name to the CMS preclusion list.  CMS Ex. 1 at 5.

My review is strictly limited to determining whether there is a basis for adding Petitioner’s name to the CMS preclusion list.  83 Fed. Reg. at 16,642.  I have found that Petitioner was convicted of a felony criminal offense within the 10 years preceding the CMS determination to place her name on the CMS preclusion list.  I have also found that the CMS hearing officer determined that Petitioner’s crime was detrimental to the best interests of Medicare upon consideration of the three factors authorized for consideration.  My review is strictly limited.  There is no authority that allows me to reweigh the factors CMS considered or to substitute my discretion for that of CMS after I conclude there was a basis for adding Petitioner’s name to the CMS preclusion list, i.e., that there was a felony conviction within the preceding 10 years and CMS exercised its discretion and determined the crime was detrimental to the best interests of Medicare.  If I could reweigh the factors, I would also conclude that Petitioner’s offense was detrimental to the best interests of Medicare.  Petitioner’s offense which involved the knowing and intentional wrongful appropriation or theft of $100,000 was serious.  I accept as true for purposes of summary judgment that Petitioner is rehabilitated and working hard to support the community.  RFH at 1.  But Petitioner’s rehabilitation and efforts are not a basis for which I may grant any relief.  Petitioner was convicted of a serious offense.  It was Petitioner’s willingness to engage in such criminal conduct that made her a threat and is detrimental to the Medicare program.

An individual’s, entity’s, or prescriber’s name is added to the preclusion list after the 60‑day period for requesting reconsideration of the initial determination has expired or the date of a reconsidered determination if reconsideration is requested.  42 C.F.R. §§ 422.222(a)(3)(i), 423.120(c)(6)(v)(C).

Generally, an individual’s or entity’s name is included on the preclusion list for the same period as the individual or entity is subject to a reenrollment bar.  42 C.F.R. §§ 422.222(a)(5)(i), 423.120(c)(6)(vii)(A).  However, under 42 C.F.R. §§ 422.222(a)(5)(iii) and 423.120(c)(6)(vii)(C), an individual’s or entity’s name remains on the preclusion list for a period of 10 years beginning on the date of the felony conviction, unless CMS determines that a shorter period is warranted.  42 C.F.R.

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§§ 422.222(a)(5)(iii).  The CMS hearing officer did not find a shorter period to be warranted.  CMS has also not exercised its discretion under 42 C.F.R. §§ 422.222(a)(6) and 423.102(c)(6)(vi) to not list Petitioner’s name on the preclusion list or to remove her name from the list.  The CMS hearing officer determined that Petitioner’s name would remain on the CMS preclusion list from May 23, 2024 (the date of the reconsidered determination) until August 26, 2030, 10 years from the date of her conviction.  CMS Ex. 1 at 5.  Arguably, 42 C.F.R. §§ 422.222(a)(5)(i) and (iii) and 423.120(c)(6)(vii)(A) and (C) if read together, provide that Petitioner’s name should remain on the preclusion list until her reenrollment bar expires on December 7, 2033, rather than a minimum of 10 years from the date of her conviction.  But I will not upset the hearing officer’s interpretation of the regulation as it is more favorable for Petitioner.  And I find no authority for an ALJ to review the CMS determination of the duration of the period one is on the preclusion list under 42 C.F.R. §§ 422.222(a)(2)(i) and 423.120(c)(6)(v)(A), which provide that the determination to list one on the preclusion list is subject to appeal but are silent as to whether the duration is subject to review.

Accordingly, I conclude that there is a basis for adding Petitioner’s name to the CMS preclusion list from May 23, 2024 through August 26, 2030.

III.  Conclusion

For the foregoing reasons, the Medicare enrollment and billing privileges of Petitioner are revoked pursuant to 42 C.F.R. § 424.535(a)(3), effective October 15, 2021.  Petitioner is subject to a bar to reenrollment from December 7, 2023 through December 7, 2033.  There is a basis for listing Petitioner on the CMS preclusion list from May 23, 2024 through August 26, 2030.