Daniel Garrison, D.O., Ruling 2026-2 (HHS CRD November 6, 2025)

REMAND

Petitioner, Daniel Garrison, D.O., was convicted of a felony offense less than ten years ago.  Therefore, as a general matter, Petitioner's enrollment in the Medicare program as a physician is potentially subject to revocation under 42 C.F.R. § 424.535(a)(3) and his name may potentially be added to the Preclusion List administered by the Centers for Medicare & Medicaid Services (CMS) under 42 C.F.R. §§ 422.2 (paragraph (3) of definition of "Preclusion list") and 423.100 (paragraph (3) of definition of "Preclusion list").  However, in addition to determining whether Petitioner was convicted of a felony within ten years, CMS must determine that Petitioner's felony was detrimental to the best interests of the Medicare program and its beneficiaries.

In the present case, Petitioner's felony does not fall into one of the regulatory categories or examples of offenses that are considered to be per se detrimental to the best interest of the Medicare program or its beneficiaries.  Therefore, CMS, as articulated in the hearing officer's reconsidered determination, made a case-specific determination that Petitioner's felony was detrimental to the best interests of the Medicare program and its beneficiaries.  When making this evaluation, the CMS hearing officer only relied on the allegations in

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an arrest warrant affidavit.  These allegations, taken alone, make Petitioner's felony offense appear extremely violent and potentially sadistic.

The CMS hearing officer was wrong to disregard the guilty plea form that Petitioner signed and completed where he provided the factual basis for his guilty plea.  This factual basis, while confirming that Petitioner's actions met the elements of the charged criminal offense, provided a scenario that was significantly less violent and less culpable than law enforcement's allegations in the arrest warrant affidavit.  The trial court relied on the facts admitted by Petitioner as the basis for accepting the guilty plea.  At the plea hearing, the prosecution declined to cross-examine Petitioner as to the facts that he had admitted as the basis for the guilty plea, appearing not to contest them.  Indeed, forensic evidence obtained by law enforcement after the arrest warrant affidavit and criminal charges were filed supported Petitioner's version of events.

I only review whether CMS reasonably determined that a felony conviction is detrimental to the best interests of the Medicare program or its beneficiaries.  Further, I have no authority to review CMS's determination as to the length of the re-enrollment bar.  Shah v. Azar, 920 F.3d 987, 998 (5th Cir. 2019); Vijendra Dave, M.D., DAB No. 2672 at 9 (2016).  Because of this limited authority, remand of this case to CMS is necessary for CMS to consider the correct factual basis for the trial court's acceptance of Petitioner's guilty plea and decide whether those facts support the conclusion that Petitioner's felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.  If CMS again upholds that determination, then CMS will make a new determination as to the length of the re-enrollment bar in light of the pertinent facts that served as a basis for the trial court to accept the guilty plea.  When CMS issues a new determination, CMS will provide Petitioner with notice that he may request a hearing before an administrative law judge (ALJ) to dispute the new determination.

I.  Background and Procedural History

Petitioner is a physician who was enrolled as a supplier in the Medicare program.  See CMS Exs. 7, 10-11.  In three notices of initial determination dated February 15, 2024, a CMS contractor revoked Petitioner's enrollment in the Medicare program for the following reason:

42 CFR § 424.535(a)(3) – Felonies

[CMS] has been made aware of [Petitioner's] December 7, 2023, felony conviction, as defined in 42 C.F.R. § 1001.2, for Cruelty to Animals in violation of Oklahoma Statutes §21-1685 in the District Court of the Fifth Judicial District of Oklahoma, Comanche County.

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CMS Ex. 4 at 1; CMS Ex. 5 at 1; CMS Ex. 6 at 1.  The notices stated that Petitioner was barred until December 8, 2033, from enrolling again in the Medicare program.  CMS Ex. 4 at 1; CMS Ex. 5 at 1; CMS Ex. 6 at 1.  The notices of initial determination also stated that Petitioner's name would be added to the CMS Preclusion List. CMS Ex. 4 at 1-2; CMS Ex. 5 at 1-2; CMS Ex. 6 at 1-2.

In February 2024, Petitioner requested that CMS reconsider the determination to revoke Petitioner's enrollment in the Medicare program and to add Petitioner's name to the Preclusion List.  CMS Ex. 2.  Petitioner submitted a number of documents in support of the reconsideration request, including the guilty plea form that he signed and filed with the trial court hearing his criminal case.  CMS Ex. 3.

In a July 16, 2024 reconsidered determination, a CMS hearing officer upheld the initial determination.  CMS Ex. 1.

On August 5, 2024, Petitioner requested a hearing before an ALJ to challenge the reconsidered determination.  Electronic Filing System (E-File) Doc. No. 1.  Petitioner attached three supporting documents to the hearing request.  E-File Doc. Nos. 1b-1d.  On August 7, 2024, the Civil Remedies Division acknowledged receipt of Petitioner's hearing request, provided the parties with a prehearing submission schedule, and issued copies of my Standing Order and the Civil Remedies Division Procedures (CRDP).  On September 11, 2024, CMS filed a prehearing brief (CMS Br.), which included a motion for summary judgment, and 13 proposed exhibits.  Petitioner did not file any additional arguments or documents other than those filed with the hearing request.

II.  Admission of Evidence

I admit all of CMS's proposed exhibits without objection.  See Standing Order ¶ 10; CRDP § 14(e).

Petitioner submitted documents with his reconsideration request and those documents have been admitted into the record as CMS Exhibit 3.  Petitioner resubmitted some of those documents with his hearing request, and consequently they are already in the record.  Compare E-File Doc. No. 1d, with CMS Ex. 3 at 7, 9-18.

Petitioner also submitted two new documents with the hearing request, i.e., the transcript of the December 7, 2023 plea hearing in Petitioner's criminal case and a discharge plan for Petitioner's inpatient psychiatric care that occurred in 2023.  E-File Doc. Nos. 1b-1c.  CMS objected to these documents because Petitioner did not submit them with his reconsideration request and has not otherwise stated good cause for submitting them after the reconsideration stage of appeal.  CMS Br. at 9.

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I must exclude documents submitted for the first time at the ALJ level of appeal unless there is good cause for the late submission.  42 C.F.R. § 498.56(e).  I find there is good cause to admit the transcript of Petitioner's plea hearing.1  E-File Doc. No. 1c.  As discussed below, the CMS hearing officer failed to evaluate the factual basis for Petitioner's guilty plea as provided in the record on reconsideration.  CMS Ex. 1 at 2; CMS Ex. 8 at 16.  Specifically, the hearing officer did not discuss or reference Petitioner's stated factual basis for his guilty plea, which differs significantly from the allegations stated in an affidavit for an arrest warrant.  This is important because Petitioner, when pleading guilty, was required to state the factual basis for that plea, and the trial court needed to primarily rely on the stated factual basis to determine if the guilty plea could be accepted.  Further, the hearing officer mischaracterized portions of the allegation in the affidavit for an arrest warrant, which made the incident involving Petitioner worse than was alleged.  Finally, the hearing officer disregarded the forensic report (CMS Ex. 3 at 10-12), issued after the affidavit for the arrest warrant, which supported Petitioner's stated factual basis for his plea and not the allegation in the affidavit for an arrest warrant.  Petitioner did not know that the hearing officer would give conclusive weight to an affidavit for an arrest warrant in the place of his stated factual basis for the plea, which was accepted by the trial court and supported by law enforcement's subsequently obtained forensic evidence.  Petitioner also did not know that the hearing officer would erroneously mischaracterize the facts from the affidavit for the arrest warrant that made the incident appear worse than that actually alleged by law enforcement.  Therefore, Petitioner had good cause to submit additional evidence to show that CMS ought to give primary weight to his statement of the factual basis for the plea that was accepted by the trial court.

I do not find good cause for the late submission of the discharge plan from Petitioner's inpatient psychiatric care.  Petitioner was warned that he needed to submit all evidence with his reconsideration request or else that evidence may not be admitted at the ALJ level of appeal.  CMS Ex. 4 at 3; CMS Ex. 5 at 3; CMS Ex. 6 at 3.  I informed Petitioner that I could only accept new documents from him if he provided good cause for not submitting them sooner.  Standing Order ¶ 9.  Petitioner did not provide good cause for this late submission, and I have not been able to discern good cause based on a review of the record.  Therefore, I exclude this new documentation submitted as E-File Doc. No. 1b.

III.  Summary Judgment

I deny CMS's motion for summary judgment.  As mentioned above and more fully explained below, there is a material dispute as to the facts that form the basis for

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Petitioner's felony conviction.  This impacts one of the elements for revocation and preclusion, i.e., the determination as to whether Petitioner's felony offense is detrimental to the best interests of the Medicare program and its beneficiaries.

IV.  Issues

1. Whether CMS had a legitimate basis to revoke Petitioner's enrollment in the Medicare program under 42 C.F.R. § 424.535(a)(3).
2. Whether CMS had a legitimate basis to include Petitioner on the CMS Preclusion List under 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6).

V.  Jurisdiction

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

VI.  Findings of Fact

1. Petitioner is a physician licensed in the state of Oklahoma, who was also previously licensed in the state of Texas from 2018 to 2021.  CMS Ex. 7 at 2-3; CMS Ex. 12 at 1.
2. On December 29, 2022, local law enforcement completed an affidavit in support of the issuance of an arrest warrant for Petitioner.  The affidavit summarized the investigation of the Comanche County Sherriff's Office (CMS Ex. 8 at 11):
   1. On December 19, 2022, two individuals told a deputy sheriff that they heard what sounded like a dog having been struck multiple times with a blunt object.  They also stated that they could hear a young girl crying and screaming "No! No! No!"
   2. The two individuals also stated that they later recorded a man in gray medical scrubs run toward a wooded area while carrying a small dog by its neck.  When the man approached the tree line, he spun around and threw the dog into the brush.  After the man ran from the area, the two individuals who witnessed this found the dog; it was dead.  The sheriff's deputy viewed the video and was able to identify Petitioner because the deputy had spoken with Petitioner before talking to the two individuals who witnessed the incident.

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3. On December 28, 2022, detectives met with Petitioner and showed him the video of a man throwing the dog's body into the brush.  Petitioner stated that the man in the video is a person who looks likes him.  Petitioner denied that his daughter was heard crying because she was not at home during the incident.

3. On January 4, 2023, the District Attorney filed, in the District Court for Comanche County, Oklahoma (District Court), a one-count Information charging Petitioner with felony Cruelty to Animals in violation of Okla. Stat. tit. 21, § 1685.  CMS Ex. 8 at 2, 9.  The Information alleged:  "[O]n or about the 19th day of December, 2022, by willfully and cruelly injuring a small dog that was in captivity and belon[ging] to [Petitioner] by beating, torturing and killing said dog."  CMS Ex. 8 at 9.  The Information did not provide any specific factual allegations.

4. On January 5, 2023, the Comanche County Sheriff's Office paid for Oklahoma State University's College of Veterinary Medicine/Oklahoma Animal Disease Diagnostic Laboratory to conduct a necropsy on the dog that died.  CMS Ex. 3 at 9, 13, 15-16.  A Final Report issued on January 13, 2023, indicated the following (CMS Ex. 3 at 10-12):

1. "Abdominal cavity:  Severe, diffuse, acute hemoabdomen";
2. "Liver:  Severe, multifocal to coalescing, acute hepatic fractures and lacerations";
3. "Left quadriceps, left adductor muscles:  Mild, focally extensive, acute intramuscular hemorrhage";
4. "Hemoabdomen is a likely cause of death, and the grossly observed hepatic fractures and lacerations are a potential source of hemoabdomen.  Hepatic lacerations can be secondary to trauma, though there is minimal evidence of trauma elsewhere; the entire cadaver was skinned, and no bone fractures, subcutaneous hemorrhage, or significant or widespread intramuscular hemorrhage was observed."

5. The dog that died was a Chihuahua that was between 1.5 and 2 years of age and 12 pounds in weight.  CMS Ex. 3 at 10-11, 14, 18.

6. On September 7, 2023, Petitioner pleaded not guilty to the charged offense.  CMS Ex. 8 at 3.

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7. On December 7, 2023, Petitioner pleaded guilty to the charge filed against him.  CMS Ex. 8 at 5, 12-19; see also Plea Hr'g Tr. at 7.  Petitioner stated on a guilty plea form and during the plea hearing that the following was the factual basis for the guilty plea:  "On 12-19-22 in Comanche County I struck my dog after being bitten causing its death."  CMS Ex. 8 at 16; see also Plea Hr'g Tr. at 7.
8. On December 7, 2023, the District Court found there was an adequate factual ground for the charge against Petitioner and the District Court accepted the guilty plea.  CMS Ex. 8 at 5, 19; see also Plea Hr'g Tr. at 8.
9. The District Court decided to defer issuing a judgment and sentence for four years.  The District Court placed Petitioner on probation, fined him $1,500, and ordered Petitioner to complete inpatient treatment under the Oklahoma Health Professionals Program.  CMS Ex. 3 at 6, 8; CMS Ex. 8 at 4-5, 21-25; CMS Ex. 9; Plea Hr'g Tr. at 54-55.
10. Petitioner admitted to the Oklahoma State Board of Osteopathic Examiners (State Board) that he killed his dog and voluntarily agreed not to practice medicine.  The State Board later suspended Petitioner's medical license.  However, on January 10, 2024, the State Board reinstated Petitioner's medical license but placed him on probation for five years.  CMS Ex. 7 at 2-5.

VII.  Conclusions of Law and Analysis

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

To receive payment for covered Medicare items or services provided to beneficiaries under Medicare Part B, a supplier must enroll in the Medicare program.  42 U.S.C. §§ 1395n(a), 1395u(h)(1); 42 C.F.R. § 424.505.  To enroll, a supplier must complete and file an enrollment application with CMS and meet all of the requirements to be a supplier.  42 C.F.R. §§ 424.510.  The Secretary has delegated the authority to revoke enrollment and billing privileges to CMS.  42 C.F.R. § 424.535.  CMS or a Medicare administrative contractor has discretion to 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.

CMS may add an individual or entity to the CMS Preclusion List for any of the reasons stated in the regulatory definition of the term "Preclusion list" applicable to Medicare Parts C and D.  42 C.F.R. §§ 422.2, 423.100.  A Medicare Advantage Organization under

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Medicare Part C may not make payment for a health care item, service, or drug provided by an individual or entity on the Preclusion List.  42 C.F.R. § 422.222(a)(1)(i).  Further, a Medicare Part D sponsor must deny a request for reimbursement from a Medicare beneficiary for a drug prescribed by an individual who is on the Preclusion List.  42 C.F.R. § 423.120(c)(6)(vii)(C).

The Act authorizes the Secretary to "refuse to enter into [a Medicare] agreement with a physician or supplier under this subsection, or may terminate or refuse to renew such agreement, in the event that such physician or supplier has been convicted of a felony under Federal or State law for an offense which the Secretary determines is detrimental to the best interests of the program or program beneficiaries."  42 U.S.C. § 1395u(h)(8).  To implement this provision, the Secretary promulgated regulations providing CMS with the authority to deny or revoke the Medicare enrollment of a supplier who was convicted of a felony, in the last ten years, that is detrimental to the best interests of the Medicare program and its beneficiaries.  42 C.F.R. §§ 424.530(a)(3), 424.535(a)(3).2  The Secretary also included a non-exhaustive list of felony offense categories and examples that the Secretary determined were detrimental to the best interests of the Medicare program and its beneficiaries.  42 C.F.R. §§ 424.530(a)(3)(i), 424.535(a)(3)(ii).  Finally, the Secretary cross-referenced the definition of the term "convicted" from the regulations implementing the Secretary's authority to exclude individuals from federal health care programs (i.e., 42 C.F.R. § 1001.2).  42 C.F.R. §§ 424.530(a)(3), 424.535(a)(3)(i); see also 42 U.S.C. § 1320a-7(i).

When CMS revokes the enrollment of a supplier, CMS must place a re-enrollment bar on the supplier for a period of time that is no less than one year and no more than ten years.  The length of the re-enrollment bar is determined by the severity of the underlying reason for the revocation.  42 C.F.R. § 424.535(c)(1)(i).

CMS may add an individual to the CMS Preclusion List when the individual has been convicted of a felony under federal or state law within the previous 10 years and CMS determines that the felony is detrimental to the best interests of the Medicare program.  To determine whether the felony conviction is detrimental to the best interests of the Medicare program, CMS must consider the following factors:  i) the severity of the offense; ii) when the offense occurred; and iii) any other information that CMS deems relevant to its determination.  42 C.F.R. §§ 422.2 (paragraph (3) of definition of "Preclusion List"), 423.100 (paragraph (3) of definition of "Preclusion List").

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1. CMS correctly determined that Petitioner was convicted of a felony offense that occurred within the preceding ten years.

The most basic requirements for CMS to revoke enrollment under 42 C.F.R. § 424.535(a)(3) is that the supplier was convicted of a felony offense within the preceding ten years.

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

Convicted means that -

* * * * *

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

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

42 C.F.R. § 1001.2.

Similarly, to add someone to the CMS Preclusion List, the following must be true:  "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 . . . ."  42 C.F.R. §§ 422.2 (paragraph (3) of definition of "Preclusion List"), 423.100 (paragraph (3) of definition of "Preclusion List").

As stated in Findings of Fact 7 through 9, on December 7, 2023, Petitioner pleaded guilty to one count of felony Cruelty to Animals, and the District Court accepted that plea and deferred issuing a judgment of conviction for four years.  Therefore, CMS correctly determined that Petitioner was convicted, as that term is defined in 42 C.F.R. § 1001.2, of a felony offense, and that the conviction occurred within ten years of CMS's revocation of Petitioner's enrollment and the addition of Petitioner's name to the Preclusion List.

2. CMS's case-specific determination that Petitioner's felony offense is detrimental to the best interests of the Medicare program and its beneficiaries was based on an erroneous interpretation of the evidence in the record and failed to discuss the factual basis for Petitioner's guilty plea that was accepted by the District Court.

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The Secretary created a non-exhaustive list of the types of felony offenses that CMS will treat as per se detrimental to the best interests of the program and its beneficiaries.  42 C.F.R. § 424.535(a)(3)(ii); 71 Fed. Reg. 20,754, 20,768 (Apr. 21, 2006); Letantia Bussell, M.D., DAB No. 2196 at 9 (2008).  Because the list is not all inclusive, CMS may also determine, for purposes of revocation, that other felony offenses are detrimental to the best interests of the Medicare program and its beneficiaries based on "a case-specific, adjudicative determination."  Eva Orticio Villamor-Goubeaux, DAB No. 2997 at 9-10 (2020); see also Fayad v. Sebelius, 803 F. Supp. 2d 699, 704 (E.D. Mich. 2011) (upholding CMS's determination to revoke a supplier's Medicare enrollment based on an unenumerated felony conviction).

When considering whether a felony offense is detrimental, CMS must "explain[] why the offense is detrimental to the Medicare program and its beneficiaries."  Michael Scott Edwards, OD, & M. Scott Edwards, OD, PA, DAB No. 2975 at 11 (2019).  Further, the determination must be reasonable.  Villamor-Goubeaux, DAB No. 2997 at 10; see Robert Kevin Lynch, D.O., DAB No. 3198 at 10-11 (2025); Omair Chaudry, M.D., DAB No. 3145 at 12-14 (2024) (concluding after a lengthy review of the felony offense that "we find no error in the ALJ's conclusion that CMS reasonably determined that Petitioner's felony offense is detrimental to the best interests of the Medicare program and its beneficiaries."); see also Fayad, 803 F. Supp. 2d at 704 (upholding a determination that the Plaintiff's particular felony offense was detrimental because "the Secretary reasonably concluded that Plaintiff's continued participation in the Medicare program was contrary to the best interests of that program").

Although the initial determination provided no specific analysis as to why Petitioner's felony offense was detrimental to the best interests of the Medicare program and its beneficiaries, the CMS hearing officer's reconsidered determination provided significant detail.  The hearing officer wrote the following in relation to the case-specific analysis to determine whether Petitioner's felony offense was detrimental to the best interests of the Medicare program or its beneficiaries:

According to the Court Information, [Petitioner] unlawfully, willfully, knowingly, and wrongfully committed Cruelty to Animals by injuring his small dog that was in captivity by beating, torturing, and killing his dog [ ].  The Warrant for Arrest Affidavit goes on to state that a video was recorded by people who telephoned the police as they were working near the scene of the crime showing [Petitioner] beating and killing his dog, with the dog yelping, while a little girl could be heard crying in the background.  [Petitioner] then carried the deceased dog into the woods and threw it there and walked away.  CMS finds that [Petitioner's] felony conviction

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of Cruelty to Animals poses a concerning risk to the safety and well-being of Medicare beneficiaries, as it demonstrates his extreme indifference for life and calls into question his ability to exercise good judgment, particularly because this violent crime was conducted in the presence of a child.  [Petitioner's] poor judgment and violent conduct could continue and present itself in other ways while providing treatment to Medicare beneficiaries.  Further, while the Court deferred judgment and sentencing for 4-years until the December 7, 2027, during this time, [Petitioner] is placed on probation; must not violate any statutes of state or federal law and pay fines and fees totaling of $2,725.  Consequently, CMS determines that the Medicare beneficiaries, and thereby, the Trust Funds, may be at risk if [Petitioner] is allowed to continue to participate in the Medicare program.  As a result, CMS considers [Petitioner's] conduct to be detrimental to the best interests of the Medicare program and its beneficiaries.

CMS Ex. 1 at 4.

The hearing officer wrote the following in relation to the severity of Petitioner's offense when determining whether Petitioner's felony offense was detrimental to the best interests of the Medicare program:

CMS considers [Petitioner's] offense, Cruelty to Animals, to be an extremely severe offense.  [Petitioner] killed his dog while going through a fit of rage.  He then threw the dog in the woods to dispose of it while others recorded the incident happening, with the dog yelping and a child crying.  This criminal conduct is dangerous and could reoccur putting beneficiaries at risk.  Beneficiary safety is of the utmost importance to CMS, and any offense that puts beneficiaries at potential risk is very severe.

CMS Ex. 1 at 6.

Petitioner's appeal included a challenge to the following findings and conclusions in the reconsidered determination:

• The hearing officer incorrectly stated that there was a video of Petitioner beating and killing the dog with a little girl crying (Hr'g Req. at 1);

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• The only video with Petitioner and the dog together is one where Petitioner throws the dog's body into the woods (Hr'g Req. at 1);
• The witnesses to what happened only heard sounds and there were no actual witnesses or videos of what ended the dog's life (Hr'g Req. at 1);
• The necropsy report on the dog shows there were no broken bones or a hematoma, and the report shows only a single injury to the dog's liver as the reason for death (Hr'g Req. at 1);
• The injury to dog supports a single strike to the dog and not 30 minutes of beating and torturing (Hr'g Req. at 1);
• There was no girl present but only Petitioner's two-year-old son, who was calling out for Petitioner to play with him; however, the boy did not see the dog's death (Hr'g Req. at 1);
• Petitioner has been thoroughly evaluated and treated, and a team of psychologists as well as the State Board have deemed him safe to practice medicine (Hr'g Req. at 1-2).
• The State Board's probation requirements are the standard minimum restrictions and place no bar on Petitioner's ability to treat patients (Hr'g Req. at 2); and
• Petitioner asserts that the ten-year revocation will effectively end his medical career because hospitals and medical clinics rely heavily on Medicare beneficiaries (Hr'g Req. at 2).

Petitioner is correct that the hearing officer misstated the evidence of his criminal conduct in this case.  As summarized in Findings of Fact 2, the arrest warrant affidavit states that two witnesses heard, but not saw or filmed on video, what they thought to be a dog being hit multiple times and a little girl protesting.  The witnesses only made a video of Petitioner disposing of the dog's body.

It is important that there are no eyewitnesses or video evidence of the killing of the dog  because it calls into question the witnesses' interpretation of what they allege to have heard.  Further, these witnesses did not sign the affidavit or testify under oath.  During the criminal proceeding, Petitioner disputed the witnesses' interpretation of the sounds they heard.  He did so initially on a Form 13.10 Uniform Plea of Guilty – Summary of Fact that he signed and submitted to the District Court, stating that Petitioner "struck my dog after being bitten causing its death."  CMS Ex. 8 at 12-18.

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During the plea hearing on December 7, 2023, Petitioner reaffirmed, under oath, the factual basis that he provided on the guilty plea form.  Plea Hr'g Tr. at 7.  Significantly, the prosecutor declined the opportunity to examine Petitioner as to this factual basis he provided for the guilty plea.  Plea Hr'g Tr. at 7.  The District Court then asked Petitioner if he was satisfied that he was guilty considering that the dog bit him first, and Petitioner responded in the affirmative.  Plea Hr'g Tr. at 7.  The District Court then stated:  "At this time the Court will enter a finding that your plea has been freely and voluntarily given.  I'm also going to enter a finding that there is adequate factual foundation for it.  The guilty plea is accepted by the Court."  Plea Hr'g Tr. at 8.

It is important that the District Court gave Petitioner's admitted factual basis for the guilty plea weight when the court accepted the plea.  Under Oklahoma case law, a trial court's failure to determine, from the defendant, that there was a factual basis for the plea of guilty violates one of the major requirements for accepting guilty pleas.  Coyle v. State, 706 P.2d 547, 548 (Okla. Crim. App. 1985).  The factual basis for the guilty plea "must be sufficient to provide a means by which the judge can test whether the plea is being entered into intelligently."  Hagar v. State, 990 P.2d 894, 897 (Okla. Crim. App. 1999).  Further, the trial judge must make sure there is a factual basis for all elements of the charged offense.  Cox v. State, 152 P.3d 244, 255 (Okla. Crim. App. 2006).

Although the documents in the reconsideration record showed the District Court's acceptance of Petitioner's factual basis for the guilty plea, this becomes abundantly clear when one reviews the sentencing portion of the December 7, 2023 plea hearing.  Petitioner testified in more detail about the incident involving his dog.  Petitioner stated that he was in the backyard of his property with his two-year-old son when his dog became entangled in a wrought iron fence.  The dog was "screaming" and frustrated, and Petitioner decided to pull the dog through the opening in the fence.  Petitioner testified that the dog "was like, pissed off, biting me.  And I was screaming at him, yelling at him.  I was getting angrier and angrier and then I just - - I slammed him on the ground."  Petitioner also testified that he placed the dog in a doghouse, took his son inside his house, and, upon returning, saw that the dog was dead.  Plea Hr'g Tr. at 21-23.

In addition, during the hearing, Petitioner also testified that the witnesses identified in the arrest warrant affidavit would not have been able to see the incident due to a high fence that would have blocked their view.  Petitioner, who is a physician, also testified that the necropsy report of the injuries to the dog was not consistent with the witnesses' allegation that they heard prolonged beating of the dog but was more consistent with throwing the dog to the ground.  Plea Hr'g Tr. at 23-26.

Significantly, during the sentencing portion of the hearing, the prosecutor was offered the opportunity to cross-examine Petitioner as to his testimony, but the prosecutor declined to do so.  Plea Hr'g Tr. at 40-41.  Further, after Petitioner's counsel argued to the District

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Court that Petitioner's version of the facts differed greatly from the arrest warrant affidavit, the prosecutor declined an opportunity to respond to that argument.  Plea Hr'g Tr. at 52-53.

In making the decision to defer adjudication of Petitioner's case, the District Court stated:  "All right.  [Petitioner's counsel], thank you for providing the Court with a great deal of additional information that would not otherwise come to the Court's attention, certainly not from the court file and certainly not from the affidavit that is in the case file."  Plea Hr'g Tr. at 53.

The transcript conclusively shows that the District Court accepted the factual basis as stated by Petitioner.  Therefore, CMS's analysis as to the question of whether Petitioner's felony offense is detrimental to the best interests of the Medicare program and its beneficiaries must be based on the facts that the District Court found to be dispositive.  This is also true of CMS's determination of the severity of the underlying basis for revocation when deciding the length of the re-enrollment bar.

VIII.  Order

I may remand a case to CMS and direct CMS to issue a new determination when there is a new issue raised in a case.  42 C.F.R. § 498.56(d).  Because CMS has significant discretion in determining whether a felony offense is detrimental to the best interests of the Medicare program or its beneficiaries, and as to the length of the reenrollment bar, and CMS has never considered the proper underlying facts to the felony offense in this matter, I remand this case to CMS so that it may, in the first instance, consider those facts.

On remand, CMS will:

1. Evaluate, consistent with the record evidence discussed in this Order, whether Petitioner's felony offense is detrimental to the best interests of the Medicare program or its beneficiaries for purposes of revocation and preclusion;
2. If CMS determines that Petitioner's felony offense is detrimental to the best interests of the Medicare program and its beneficiaries, CMS will evaluate, consistent with the record evidence discussed in this Order, the severity of the underlying basis for revocation and determine the length of the re-enrollment bar; and
3. Issue a new written determination on these issues with notice that Petitioner may request an ALJ hearing to dispute the new determination.

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On remand, CMS may:

1. Make its evaluation and issue a new determination described above based on the record in this case as described in this Order; or
2. Consider additional information or evidence so long as Petitioner is given the opportunity to review and respond to that information and evidence before CMS issues the new determination; and
3. Take any other lawful actions that are not inconsistent with this Order.

It is so ordered.