Peter B. Craig, M.D., DAB CR6711 (2025)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through its administrative contractor, Novitas Solutions, Inc. (Novitas), revoked the Medicare enrollment and billing privileges of Peter B. Craig, M.D. (Petitioner) pursuant to 42 C.F.R. § 424.535(a)(3), (a)(4) and (a)(9).  Novitas revoked Petitioner’s Medicare enrollment and billing privileges because Petitioner (1) within the ten years prior to Petitioner’s Medicare enrollment, was convicted of a felony that CMS determined was detrimental to the interests of the Medicare program and its beneficiaries, (2) failed to disclose such conviction in his enrollment application, and (3) failed to notify CMS of the adverse legal action.  Petitioner requested that CMS reconsider the revocation, and CMS issued an unfavorable reconsidered determination.  Petitioner then requested review by an administrative law judge.  For the reasons explained below, I affirm CMS’s determinations revoking Petitioner’s Medicare enrollment and billing privileges and placement on the preclusion list. 

I. Background and Procedural History

Petitioner is a Texas physician who was enrolled as a Medicare supplier.  On March 22, 2023, Novitas revoked Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3), (a)(4) and (a)(9).  CMS subsequently placed Petitioner on 

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the preclusion list and imposed a ten-year reenrollment bar.  See CMS Ex. 6 at 1-2.  Petitioner requested reconsideration of CMS’s initial determination.1  CMS issued an unfavorable determination and upheld the revocation.  Id.  Petitioner then timely requested review by an Administrative Law Judge (ALJ) on February 13, 2024.  On February 14, 2024, the Civil Remedies Division issued a letter acknowledging Petitioner’s request for hearing and a Standing Order. 

CMS timely filed its Prehearing Brief and a Motion for Summary Judgment (CMS Br.) and six proposed exhibits (CMS Exs. 1-6).  Petitioner timely filed his Brief, along with 20 proposed exhibits (P. Exs. 1-20) and seven witnesses.  Petitioner did not object to CMS’s exhibits 1-6.  CMS did not object to Petitioner’s exhibits 1-20 or the witnesses. 

Petitioner filed three supplemental briefs.  The first proposed new legal research, the second showed that Petitioner was licensed to practice medicine in Arizona, and the third essentially requested an expedited ruling.  CMS did not file a reply to any of the supplemental filings. 

This case was transferred to me on May 6, 2025. 

I admit into the record CMS Exhibits 1-6 and Petitioner Exhibits 1-20, without objection.  

In its motion for summary judgment, CMS argues that there are no material facts in dispute that would require a hearing.  CMS Br. at 3.  Petitioner opposes CMS’s motion.  P. Br. 

II. Issues

The issues in this case are:  

• Whether summary judgment is appropriate
• Whether CMS had a legal basis to revoke the Medicare enrollment and billing privileges of Petitioner under 42 C.F.R. § 424.535(a)(3) because Petitioner was convicted of a felony offense that CMS determined is detrimental to the Medicare programs and its beneficiaries.  
• Whether CMS had a legal basis to revoke the Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(4) because he submitted false or misleading information on his enrollment application.  

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• Whether CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(9) for failing to report a felony conviction on his enrollment application; and
• Whether CMS had a legal basis to place Petitioner on its preclusion list. 

III. Jurisdiction

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

IV. Discussion

1. A. Statutory and Regulatory Framework

As a physican, Petitioner is considered a “supplier” for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 410.20(b)(1).  To participate in the Medicare program as a supplier, an individual or entity must meet certain criteria to enroll and receive billing privileges.  42 C.F.R. §§ 424.505, 424.510.  CMS may revoke the enrollment and billing privileges of a supplier for any reason stated in 42 C.F.R. § 424.535.  More specifically, CMS may revoke a provider or supplier when he or she is convicted within the preceding ten years of an offense deemed detrimental to the best interests of the Medicare program and its beneficiaries under 42 C.F.R. § 424.535(a)(3), for failing to disclose such conviction on their enrollment applications under 42 C.F.R. § 424.535(a)(9), and for submitting false or misleading information on his enrollment application under 42 C.F.R. § 424.535(a)(4). 

When CMS revokes a supplier’s Medicare billing privileges, CMS establishes a reenrollment bar for a period ranging from one to ten years.  42 C.F.R. § 424.535(c).  Generally, a revocation becomes effective 30 days after CMS mails the initial determination revoking Medicare billing privileges, but if the revocation is based on a felony conviction, the revocation is effective with the date of the conviction.  42 C.F.R. § 424.535(g).  CMS may reverse a revocation due to a felony conviction by an owner or managing employee if the supplier terminates the managing employee and submits proof thereof within 30 days of the revocation notice.  42 C.F.R. § 424.535(e). 

1. B. Findings of Fact, Conclusions of Law, and Analysis
   1. 1. Summary judgment is appropriate because there is no dispute as to any material fact.2

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Summary judgment is appropriate if “the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (citations omitted).  The moving party must show that there are no genuine issues of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Id.  If the moving party meets its initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial . . . .’”  Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).  “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact — a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab., DAB No. 2300 at 3 (citations omitted).  To determine whether there are genuine issues of material fact for hearing, an administrative law judge must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  Id. 

There is no genuine dispute as to any material fact in this case.  Petitioner acknowledges that he was convicted of a felony offense.  Petitioner does not allege that he disclosed his conviction on his Medicare enrollment application.  Nor does Petitioner contend that he reported his conviction to CMS or its contractor within 30 days of the conviction.  These are the only facts material to CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges and place him on the preclusion list. 

Petitioner contends that there are material facts in dispute.  He argues that CMS abused its discretion by revoking his billing privileges for ten years.  See Petitioner’s First Supplemental Filing.  Petitioner further argues that his due process rights were violated by the revocation because it was a taking of his property insomuch as his license to practice medicine is a property right.  P. Br. at 3-4.  He also argues that because there is no review of the length of the reenrollment bar by the ALJ, there is no avenue for administrative review, and, therefore, the Administrative Procedure Act (APA) should apply.  P. Br. at 5-6.  Petitioner also states that he is losing critical emergency skills by being unable to practice in hospitals because of his revocation.  Petitioner further argues that any drug use was personal and never threatened his patients’ safety and that he provides medical services to underserved populations.3  P. Br. at 9-12. 

As I am required to do when ruling on motions for summary judgment, I accept as true Petitioner’s factual representations.  Petitioner does not contest the bases for the revocation or his placement on the preclusion list.  Based on these facts, CMS is entitled to judgment as a matter of law.  Accordingly, summary judgment is appropriate. 

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2. 2. CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §535(a)(3) because Petitioner was convicted of a felony offense that CMS determined to be detrimental to the best interests of the Medicare program and its beneficiaries. 

CMS may revoke a supplier’s enrollment in the Medicare program if, within the preceding ten years, the supplier was convicted of a felony offense that CMS “has determined to be detrimental to the best interests of the program and its beneficiaries.”  42 C.F.R. § 424.535(a)(3)(i); see also Act §§ 1842(h)(8) (authorizing the Secretary of Health and Human Services to deny enrollment to a supplier that has been convicted of a felony offense that the Secretary has determined is “detrimental to the best interests of the program or program beneficiaries”) and 1866(b)(2)(D) (authorizing the Secretary to deny or terminate enrollment after he ascertains that a supplier has been convicted of a felony that he “determines is detrimental to the best interests of the program or program beneficiaries”).  Offenses for which billing privileges may be revoked include – but are not limited to – felony crimes against persons, such as murder, rape, assault, and similar crimes; financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and similar crimes; felonies that place the Medicare program or its beneficiaries at immediate risk (such as convictions for criminal neglect or misconduct); and felonies that would result in mandatory exclusion under section 1128 of the Act.  42 C.F.R. § 424.535(a)(3)(ii)(A)‑(D).  

Petitioner admits in his prehearing brief that he “was convicted of a felony, failed to be aware of my obligation to report my felony drug conviction to CMS and did not timely do so . . . [.]”  P. Br. at 7. 

Petitioner pleaded guilty to the felony offense of Importation of a Listed Chemical without Prior Registration.  CMS Ex. 1.  Petitioner argues that although he was convicted of a felony, the drug was used only for his own sleep disorder and that he was not a threat to patient safety.  P. Br. at 8-9.  He also argues that his crimes did not involve Medicare fraud or the diversion of any Medicare funds.  P. Br. at 15-17.  Petitioner is likely arguing that because his felony conviction was not an enumerated felony and allegedly did not cause harm to Medicare beneficiaries, his felony offense should not be considered detrimental to the best interests of the Medicare program and its beneficiaries. 

Petitioner’s felony conviction for the Importation of a Listed Chemical is likely similar to a felony conviction relating to a controlled substance, which is considered detrimental to the Medicare program and its beneficiaries pursuant to 42 C.F.R. § 424.535(a)(3)(ii)(D).  However, even if a felony conviction is not for a crime enumerated in the regulation, CMS is authorized to determine, on a case-by-case basis, that other felony convictions are detrimental to Medicare and its beneficiaries and therefore support revocation under 

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section 424.535(a)(3)(i).  See, e.g., Saeed A. Bajwa, M.D., DAB No. 2799 at 8, 10-11 (2017), appeal dismissed per stipulation, No. 3:17-cv-00792-GTS-DEP (N.D.N.Y. Dec. 28, 2017) (42 C.F.R. § 424.535(a)(3)(i) authorizes CMS to determine what felony convictions are a basis for revocation; CMS is not limited to the felonies enumerated as examples). 

It is apparent in this case that CMS exercised its discretion, pursuant to 42 C.F.R. § 424.535(a)(3)(i), to determine that a felony conviction not listed in 42 C.F.R. § 424.535(a)(3)(ii) is detrimental to the Medicare program and its beneficiaries and, accordingly, warrants revocation.  See Bajwa, DAB No. 2799 at 8, 10-11.  If I am satisfied that CMS exercised its discretion under 42 C.F.R. § 424.535(a)(3)(i), I may not substitute my own determination as to whether a given felony is detrimental to the Medicare program and its beneficiaries for that of CMS.  See Brian K. Ellefsen, DO, DAB No. 2626 at 7 (2015).  The record before me amply demonstrates that CMS exercised its discretion.  CMS itself issued the reconsidered determination in which it found that Petitioner’s conviction raised concerns about whether he can be trusted to exercise good judgment and deal honestly with Medicare.  CMS Ex. 6 at 5-6.  

Moreover, appellate panels of the DAB have repeatedly rejected this line of argument.  See, e.g., Arriva Med., LLC, DAB No. 2934 at 15-16 (and cases cited therein).  My review of CMS’s discretionary decision to revoke Petitioner’s Medicare enrollment and billing privileges “is ‘limited to deciding whether CMS had a valid legal basis for that action.’”  Id. at 15 (quoting Care Pro Home Health, Inc., DAB No. 2723 at 5 (2016)).  I am not authorized to substitute my discretion for CMS’s discretion.  Id. (citing Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 17, 19 (2009), aff’d, 710 F. Supp. 2d 167 (D. Mass. 2010)). 

In summary, whether or not Petitioner’s conviction was for an enumerated per se detrimental offense or not, CMS acted within the scope of its discretion to determine that Petitioner was convicted of a felony detrimental to the best interests of the Medicare program and its beneficiaries.  Moreover, even if Petitioner’s Medicare enrollment and billing privileges were not subject to revocation based on his conviction of a felony that CMS determined is detrimental to the best interests of the Medicare program and its beneficiaries, revocation would nevertheless be proper because, as discussed below, CMS had an additional legal basis to revoke his enrollment and billing privileges. 

3. 3. CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §535(a)(4) because Petitioner did not disclose his felony conviction on his enrollment application and thereby provided false or misleading information in the application. 

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CMS may revoke a currently enrolled supplier’s billing privileges in the following circumstance, among others:  

• The . . . supplier certified as “true” misleading or false information on the enrollment application to be enrolled . . . in the Medicare program.  

42 C.F.R. § 424.535(a)(4).  

Petitioner did not deny that he signed an enrollment application with false and misleading information.  Specifically, Petitioner stated:  “I admit that I electronically signed a document without reading it and without realizing that it inaccurately represented that I had no felony conviction. . . [.]”  P. Br. at 7; see also Req. for Hrg. at 3.  Instead, Petitioner argues that he was not aware of the instructions to report his felony conviction on his application and that he relied on his employers to submit the paperwork on his behalf.  P. Br. at 12.  The regulation, however, does not require intent to deceive, merely that false or misleading information be certified as true.  Mark Koch, D.O., DAB No. 2610 at 4-5 (2014) (“section 424.535(a)(4) does not require proof that [the petitioner] subjectively intended to provide false information, only proof that he in fact provided misleading or false information that he certified as true”); see also Sandra E. Johnson, CRNA, DAB No. 2708 at 15 (2016). 

Petitioner certified that his Medicare enrollment application was accurate and complete, which was false and misleading because he omitted to disclose his felony conviction.  Therefore, I conclude that CMS had a legal basis to revoke the enrollment and billing privileges of Petitioner under 42 C.F.R. § 424.535(a)(4). 

4. 4. CMS had a legal basis to revoke Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. §535(a)(9) because Petitioner did not report his felony conviction as an adverse action within 30 days. 

CMS may revoke a currently enrolled supplier’s billing privileges if a supplier does not comply with the reporting requirements of 42 C.F.R. § 424.516(d)(1)(i)-(iii).  42 C.F.R. § 424.535(a)(9).  Petitioner was required to report any adverse legal action within 30 days.  Id.  It is undisputed that Petitioner failed to report his conviction to CMS.  As noted above, Petitioner admits in his hearing request and his brief that he did not timely report the felony conviction to CMS.  P. Br. at 7; Req. for Hrg. at 3.  Petitioner argues that he didn’t know he needed to disclose the conviction but offers instead that he reported the conviction to his employer, the U.S. Drug Enforcement Agency, and the American Board of Emergency Medicine.  P. Br. at 12-13. 

The undisputed facts establish that there is a basis for revocation pursuant to 42 C.F.R. § 424.535(a)(9) because Petitioner did not report his felony conviction.  Petitioner may 

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have reported his conviction to other entities, but he did not comply with the reporting requirements of 42 C.F.R. § 424.516(d)(1)(ii). 

5. 5. I have no authority to reverse the revocation of Petitioner’s enrollment and billing privileges, shorten the length of revocation or time on the preclusion list based on equitable principles.

Petitioner asserts that he provides medical services to an underserved community and that this evidence was not considered by CMS.  Pr. Br. at 11-12.  Petitioner argues that the hearing officer failed to talk with him or his employer about the population he served.  Id.  However, in his request for hearing, Petitioner admits that there are other physicians in the area who serve the community and that “I have not stated and do not think that I am impossible to replace.”  Req. for Hrg. at 4-5.  CMS agreed and concluded that, after running a data analysis, there was not support for the contention that Petitioner’s revocation unfairly denied medical services to an underserved community.  CMS Ex. 6 at 6. 

Petitioner argues additionally that CMS’s revocation decision and his placement on the preclusion list were arbitrary and capricious and should be set aside because CMS speculated, relied on “falsehoods,” and violated Petitioner’s due process.  P. Br. at 2, 9-11; P. First Supplemental Brief.  However, Petitioner’s contention that I may overturn his revocation and placement on the preclusion list as “arbitrary and capricious” actions by CMS misunderstands my role as an administrative law judge in the administrative appeals process. 

The arbitrary and capricious standard, codified in the Administrative Procedure Act (APA), is a standard for court review of final agency actions.  5 U.S.C. § 706.  My role differs from that of a federal court reviewing final agency actions.  In administrative proceedings governed by 42 C.F.R. Part 498, neither CMS’s determination nor my decision reviewing that determination is a final agency action.  Arriva, DAB No. 2934 at 15 (2019); see also 42 C.F.R. § 498.90 (providing that the appellate decision of the DAB is the final agency action that may be appealed to federal court).  As an appellate panel of the DAB held in Hanover Hill Health Care Ctr., “[n]othing in the APA . . . applies the ‘arbitrary and capricious standard’ to Board review of an ALJ decision on behalf of the Secretary . . . .”  DAB No. 2507 at 7 (2013); see also Cal Turner Extended Care Pavilion, DAB No. 2030 at 7 (2006) (discussing “the distinction between the oversight role of a federal court reviewing agency decisions to determine if an adequate basis is articulated and the internal agency appeals process for formulating final agency action”). 

Petitioner also alleged that he was deprived of due process when CMS took away his right to practice medicine.  P. Br. at 3.  More specifically, Petitioner alleges that CMS’s revocation is a taking of his property insomuch as he has a right to practice.  Id.  Ultimately, Petitioner makes generalized assertions of constitutional violations that are 

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beyond my authority to hear and decide.  Administrative Law Judges are 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). 

Finally, to the extent Petitioner is arguing that revocation of his Medicare enrollment and billing privileges is inequitable under the circumstances presented, CMS’s discretionary act to revoke a provider or supplier is not subject to review based on equity or mitigating circumstances.  Bussell, DAB No. 2196 at 13; see also US Ultrasound, DAB No. 2302 at 8 (2010).  Rather, “the right to review of CMS’s determination by an [administrative law judge] serves to determine whether CMS had the authority to revoke [the provider’s or supplier’s] Medicare billing privileges, not to substitute the [administrative law judge’s] discretion about whether to revoke.”  Id.  Once CMS establishes a legal basis on which to proceed with a revocation, then the CMS determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  See id. at 10; see also Ahmed, DAB No. 2261 at 19 (if CMS establishes the regulatory elements necessary for revocation, an administrative law judge may not substitute his or her “discretion for that of CMS in determining whether revocation is appropriate under all the circumstances”). 

6. 6. There is a basis for adding Petitioner’s name to the CMS preclusion list for a ten-year period following the date of his conviction.

The CMS hearing officer upheld listing Petitioner’s name on the CMS preclusion list for a ten-year period following Petitioner’s felony conviction.  The hearing officer found that Petitioner’s conviction for Importation of a Listed Chemical without Prior Registration occurred within the previous ten years and is detrimental to the best interests of the Medicare program. 

The CMS hearing officer exercised the discretion granted to CMS under 42 C.F.R. §§ 422.2 and 423.100 and determined that Petitioner’s offense was detrimental to the best interests of the Medicare program.  CMS Ex. 6 at 9-11.  In doing so, the hearing officer considered the factors required by the regulations, including the seriousness of Petitioner’s offense, when the offense occurred, and other information deemed relevant to the determination.  Id.  The hearing officer did not find a shorter period to be warranted.  Id. 

Preclusion list review is strictly limited to whether there is a basis for adding the supplier to the CMS preclusion list.  Douglas Bradley, M.D., DAB No. 2663 at 13; 83 Fed. Reg. 16,440, 16,641 (Apr. 16, 2018).  Petitioner argues that CMS abused its discretion in refusing to shorten the length of time he is on the preclusion list.  P. Br. at 11-12.  However, I have no authority to conduct a review of the CMS exercise of discretion in determining that Petitioner’s underlying conduct was detrimental to Medicare and in adding Petitioner to the preclusion list, including the duration of the listing where, as here, I determine that there is a basis for such action.  42 C.F.R. §§ 422.2, 423.100 

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(definition of preclusion list); 83 Fed. Reg. 16,440, 16,641-67.  Similarly, I do not have the authority to review Petitioner’s constitutional challenges, nor to grant equitable relief.  Funmilola Mary Taiwo, DAB No. 2995 at 9-10 (2020); Salvacion Lee, M.D., DAB No. 1850 (2002). 

V. Conclusion

For the reasons stated, I affirm CMS’s determination to revoke Petitioner’s Medicare enrollment and billing privileges and Petitioner’s placement on the preclusion list.  There are no material facts in dispute and CMS is entitled to judgment as a matter of law.  Accordingly, I grant CMS’s motion for summary judgment.