Bruce Rubinowicz, DO, DAB CR6890 (2026)

DECISION

The Medicare enrollment application of Petitioner, Bruce Rubinowicz, DO, is denied pursuant to 42 C.F.R. § 424.530(a)(3).1  There is a basis for listing Petitioner on the Centers for Medicare & Medicaid Services (CMS) preclusion list effective December 2, 2025 until February 19, 2026.

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I.  Procedural History and Undisputed Facts

The material facts are undisputed.  Any reasonable inferences are drawn in favor of Petitioner.

On January 4, 2016, Petitioner was charged by an Information filed in the United States District Court for the Middle District of Tennessee (district court) with one felony count of violation of the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b).  The statute prohibits any person or entity from making or accepting payment to induce or reward referring, recommending, or arranging for federally funded medical services.  CMS Ex. 1 at 14, 20.

On February 19, 2016, 2 the district court accepted Petitioner’s guilty plea to the charge of violation of the Anti-Kickback Statute.  CMS Ex. 1 at 11.  On November 1, 2017, the district court entered judgment and sentenced Petitioner to one year of probation and forfeiture of $22,900.  CMS Ex. 1 at 21-27, 62-75.

On March 30, 2018, the Inspector General (IG) for the United States Department of Health and Human Services notified Petitioner that he was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  The exclusion was based on Petitioner district court conviction.  The exclusion was effective April 19, 2018.  CMS Ex. 1 at 57-58.  On April 21, 2023, the IG notified Petitioner that his request for reinstatement of his eligibility to participate in Medicare was approved effective April 21, 2023.  The IG informed Petitioner state agencies were notified but not obligated to reinstate him in their programs.  The IG also advised Petitioner to contact his Medicare carrier to determine options for participating in Medicare.  The IG advised Petitioner that his name would be removed from the IG maintained List of Excluded Individuals/Entities (LEIE)3 with the next monthly update of that list.  CMS Ex. 1 at 59.

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On May 22, 2018, First Coast Service Options, Inc., a Medicare administrative contractor (MAC) notified Petitioner that his Medicare enrollment and billing privileges4 were revoked effective November 1, 2017.  The MAC revoked based on Petitioner’s exclusion by the IG effective April 19, 2018 (42 C.F.R. § 424.535(a)(2)); Petitioner’s November 1, 2017 conviction by the district court (42 C.F.R. § 424.535(a)(3)); and the fact Petitioner failed to notify CMS and the MAC of the exclusion and the conviction (42 C.F.R. § 424.535(a)(9).  The MAC imposed a three-year bar to reenrollment.  CMS Ex. 1 at 54-55.  The MAC did not inform Petitioner that his name would be added to the CMS preclusion list because the CMS preclusion list did not exist prior to June 15, 2018.  83 Fed. Reg. 16,440, 16,641-67 (Apr. 16, 2018).

On December 20, 2024, Petitioner filed an application to reenroll in Medicare.  CMS Ex. 1 at 35-42.  The MAC notified Petitioner by letter dated March 18, 2025, that his enrollment application was approved and his Medicare billing privileges were effective October 31, 2024.  CMS Ex. 1 at 43.  But the MAC notified Petitioner by letter dated June 3, 2025, that it reopened and revised its March 18, 2025 initial determination and denied Petitioner’s Medicare enrollment application effective May 28, 2025.  The MAC cited Petitioner’s November 1, 2017 district court conviction that was within 10 years of the December 20, 2024 date the MAC received his enrollment application as the factual basis for denying his enrollment pursuant to 42 C.F.R. § 424.530(a)(3).  The MAC also advised Petitioner that his name would be added to the CMS preclusion list, effective the date of a reconsidered determination if reconsideration was requested or 65 days from June 3, 2025.  CMS Ex. 1 at 48-49.

Petitioner requested a reconsidered determination by emails dated from June 7 to 17, 2025.  CMS Ex. 1 at 1, 51-53.

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On December 2, 2025, a CMS hearing officer issued a reconsidered determination.  The CMS hearing officer upheld denial of Petitioner’s enrollment application under 42 C.F.R. § 424.530(a)(3) based on his February 19, 2016 district court conviction which occurred within the 10 years preceding the MAC’s receipt of Petitioner’s December 20, 2024 application to reenroll in Medicare.  The hearing officer concluded that the conviction was per se detrimental to the Medicare program under 42 C.F.R. § 424.530(a)(3)(i)(D) because the conviction subjected Petitioner to exclusion by the IG under section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  The hearing officer noted that Petitioner was excluded by the IG but then his eligibility was reinstated.  The hearing officer also noted that the IG’s authority for exclusion is separate from the CMS authority to approve or deny enrollment in the Medicare program.  The hearing officer conducted the analysis necessary to determine whether the name of a person or entity should be added to the CMS preclusion list and concluded that Petitioner’s offense and conviction was detrimental to the Medicare program and its beneficiaries.  The hearing officer concluded Petitioner’s name should remain on the CMS preclusion list until February 19, 2026, 10 years from the date of his conviction, i.e., the district court acceptance of his guilty plea.  42 C.F.R. § 1001.2(Convicted (c)); CMS Ex. 1 at 1-7, 11 (02/19/2016 court minutes – plea hearing, plea petition accepted, plea entered, plea agreement reserved), at 12 (11/01/2017 court minutes), at 22 (judgment).

On December 29, 2025, Petitioner requested a hearing (RFH) before an administrative law judge (ALJ).  The case was assigned to me for hearing and decision on January 7, 2026, and my Standing Order was issued.

On February 6, 2026, CMS filed a motion for summary judgment with supporting brief (CMS Br.) with CMS Ex. 1.  On February 17, 2026, Petitioner filed a response in opposition to the CMS motion for summary judgment (P. Br.).  CMS failed to file a reply or waiver of reply.  Petitioner has not objected to my consideration of CMS Ex. 1 and it is admitted as evidence.  Petitioner filed with his request for hearing a copy of the reconsidered determination in evidence as CMS Ex. 1 at 1-7.  Petitioner filed a copy of the May 22, 2018 MAC initial determination revoking Petitioner’s Medicare enrollment and billing privileges in evidence as CMS Ex. 1 at 54-55.  Petitioner also filed a copy of a National Practitioner Data Bank document reflecting a CMS action on September 1, 2022, characterized as a reinstatement.  DAB E-File # 1c.  DAB E-File # 1c is part of the record, but it is not relevant to any issue that I may decide in this case so it is not treated as a marked exhibit or admitted as evidence.

II.  Discussion

1. Medicare Enrollment and Billing Privileges and Preclusion List

Section 1831 of the Act (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.

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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.5  Act §§ 1835(a) (42 U.S.C. § 1395n(a)), 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Petitioner’s December 20, 2024 application was to enroll in Medicare as a physician.  CMS Ex. 1 at 35, 37.

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 denial of enrollment and revocation of enrollment and billing privileges.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).

Pursuant to 42 C.F.R. § 424.505, a provider or 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 regulations establish detailed requirements that suppliers must meet and maintain to enroll in Medicare and to receive and maintain Medicare billing privileges.  42 C.F.R. pt. 424, subpt. P.

The Secretary has delegated the authority to accept or deny enrollment applications to CMS.  Pursuant to the Secretary’s regulations, CMS may deny a provider’s or supplier’s enrollment application for any of the reasons set out in 42 C.F.R. § 424.530(a).  In this case, CMS denied Petitioner’s application under 42 C.F.R. § 424.530(a)(1) because on reconsideration CMS determined that Petitioner was convicted on February 19, 2016, of a federal felony offense which was within the 10-year period preceding December 20, 2024, the date the MAC received Petitioner’s application to enroll.  And CMS determined that the conviction was per se detrimental to Medicare and its beneficiaries.  CMS Ex. 1 at 3; 42 C.F.R. § 424.530(a)(3)(i)(D).  The reconsidered determination is the determination that I review.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7.

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Effective June 15, 2018, which was after the May 22, 2018 revocation of Petitioner’s Medicare enrollment and billing privilege (CMS Ex. 1 at 54), CMS was required to establish a preclusion list as defined by 42 C.F.R. §§ 422.2 and 423.100 (2018).  There is only one preclusion list.  83 Fed. Reg. 16,440, 16,641-67.  CMS adds to the preclusion list suppliers whose Medicare enrollment and billing privileges are revoked pursuant to 42 C.F.R. § 424.535; who are currently subject to a reenrollment bar under 42 C.F.R. § 424.535(c); and whose conduct that is the basis for revocation CMS determines is detrimental to the best interests of the Medicare program.  In deciding whether conduct is detrimental to Medicare, CMS considers the seriousness of the conduct; the degree to which the conduct could affect the integrity of the Medicare program; and other evidence CMS considers relevant.  Suppliers not enrolled in Medicare may be added to the preclusion list if CMS determines that their conduct would have provided a basis for revocation of Medicare enrollment and after consideration of the other factors listed above.  42 C.F.R. §§ 422.2, 423.100 (2018).  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. pt. 498.  42 C.F.R. §§ 422.222(a)(2), 423.120(c)(6)(v).  The CMS hearing officer upheld adding Petitioner’s name to the CMS preclusion list after considering the required factors and determining that Petitioner’s felony conviction was detrimental to the best interests of the Medicare program.  CMS Ex. 1 at 4-5.

A prospective supplier whose enrollment application has been denied and whose name has been added to the CMS preclusion list may request reconsideration and review as provided by 42 C.F.R. pt. 498.  42 C.F.R. § 424.545(a); 42 C.F.R. §§ 422.222(a)(2), 423.120(c)(6)(v).  A prospective supplier submits a written request for reconsideration to CMS or its contractor.  42 C.F.R. § 498.22(a), (b).  CMS or its contractor must give notice of its reconsidered determination to the prospective supplier, giving the reasons for its determination, specifying the conditions or requirements the prospective supplier failed to meet, and advising of the right to an ALJ hearing.  42 C.F.R. § 498.25.  If the decision on reconsideration is unfavorable to the prospective supplier, the prospective 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), 498.5.  A hearing on the record, also known as an oral hearing, is required under the Act.  Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  The prospective supplier bears the burden to demonstrate that the supplier meets enrollment requirements with documents and records.  42 C.F.R. § 424.545(c).

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2. Issues

Whether there was a basis for the denial of Petitioner’s application to enroll in the Medicare program.

Whether there is a basis for adding Petitioner’s name to the CMS preclusion list.

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

My conclusions of law are set forth in bold text followed by my findings of undisputed fact and analysis.

1.  Summary judgment is appropriate.

A supplier, such as Petitioner, denied enrollment in Medicare and billing privileges, has a right to a hearing and judicial review.  A hearing on the record before an ALJ is required under the Act.  Act §§ 205(b), 1866(h)(1), (j); 42 C.F.R. §§ 498.3(b)(17), 498.5(l); Crestview, 373 F.3d at 748-51.  A party may waive appearance at an oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.  Petitioner has not waived an oral hearing.

CMS filed a motion for summary judgment.  I treat Petitioner’s request for hearing and brief as opposing summary judgment for CMS.

Summary judgment is not automatic but is limited to certain specific conditions.  The procedures applicable to the adjudication of this case are at 42 C.F.R. pt. 498.  The regulations do not establish or recognize a summary judgment 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 has also recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but 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

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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.  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.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (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 differs from that used in resolving a case after a hearing or a waiver of oral hearing.  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 or on the documentary 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. pt. 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. pt. 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).

In this case, viewing the evidence before me in a light most favorable to Petitioner and drawing all inference in his favor, I conclude that there are no genuine disputes as to any material fact pertinent to denial of enrollment under 42 C.F.R. § 424.530(a)(3) that requires a trial.  Petitioner does not dispute that he was convicted by the district court in 2016, within the 10 years preceding the filing of his December 20, 2024 application.  Whether Petitioner’s name may be added to the CMS preclusion list also involves no genuine dispute of any material fact.  Therefore, both issues of whether there is a basis for denial of enrollment at the time of the reconsidered determination and whether Petitioner’s name may be added to the CMS preclusion list must be resolved against Petitioner as matters of law.  Accordingly, I conclude that summary judgment is appropriate.  Petitioner has questions about the different types of actions of the IG and CMS in this case.  An effort is made to respond to the questions to aid Petitioner’s

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understanding of the process, even though the responses do not impact the outcome in this case.

2.  Petitioner was convicted within the meaning of 42 C.F.R. § 1001.2 of a felony offense of violation of the Anti-Kickback Statute.

3.  The Secretary issued a regulation listing per se detrimental offenses but has given broad discretion to CMS to determine which state or federal felony convictions are detrimental to the Medicare program or its beneficiaries.  42 C.F.R. § 424.530(a)(3); 79 Fed. Reg. 72,500, 72,531-32 (Dec. 5, 2014).

4.  There is a basis for denial of Petitioner’s enrollment in Medicare pursuant to 42 C.F.R. § 424.530(a)(3) based upon Petitioner’s felony conviction which CMS has determined is detrimental to Medicare and its beneficiaries.

5.  The issue for hearing and decision is whether there is a basis for denial of Petitioner’s Medicare enrollment and, if there is a basis for denial, my jurisdiction does not extend to review whether CMS properly exercised its discretion to deny Petitioner’s Medicare enrollment application.

6.  No equitable relief is available in this forum.

Basis for Enrollment Denial Analysis

CMS denied Petitioner’s enrollment on reconsideration pursuant to 42 C.F.R. § 424.520(a)(3), because he was convicted during the ten-year period prior to filing his application to reenroll in Medicare of a felony that CMS has determined is detrimental to Medicare and its beneficiaries.  I conclude that there is a basis for denial of Petitioner enrollment in Medicare pursuant to 42 C.F.R. § 424.530(a)(3).  The regulation provides:

(a) Reasons for denial.  CMS may deny a provider’s or supplier’s enrollment in the Medicare program for the following reasons:

* * * *

               (3) Felonies.  The provider, supplier, or any owner, managing employee, managing organization, officer, or director of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2)

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of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.

               (i) Offenses include, but are not limited in scope or severity to—

(A) Felony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.

(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.

(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that results in a conviction of criminal neglect or misconduct.

(D) Any felonies that would result in mandatory exclusion under section 1128(a) of the Act.

               (ii) Denials based on felony convictions are for a period to be determined by the Secretary, but not less than 10 years from the date of conviction if the individual has been convicted on one previous occasion for one or more offenses.

               (iii) The individuals and organizations identified in paragraph (a)(3) of this section include, but are not limited to, W–2 employees and contracted individuals and organizations of the provider or supplier.

Four elements must exist in order for CMS to deny enrollment under 42 C.F.R. § 424.530(a)(3):

1.  There must have been a conviction within the meaning of 42 C.F.R. § 1001.2;

2.  The conviction must be for commission of a felony;

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3.  The felony conviction must have occurred within the 10 years preceding the filing of the application to enroll that is under consideration; and

4.  CMS must determine that the offense is detrimental to the best interests of the Medicare program and its beneficiaries.

The Secretary has delegated virtually unfettered discretion to CMS to decide what constitutes a felony offense that is detrimental to the best interests of the Medicare program and its beneficiaries under 42 C.F.R. § 424.530(a)(3).  79 Fed. Reg. 72,500, 72,531-2 (Dec. 5, 2014).  Effective February 3, 2015, 42 C.F.R. § 424.530(a)(3) was amended to permit CMS to determine that a felony is detrimental to Medicare or its beneficiaries even if it is not one described in 42 C.F.R. § 424.520(a)(3)(i).  The preamble6 to the revised regulation states:

First, we proposed to modify the list of felonies in each section such that any felony conviction that we determine to be detrimental to the best interests of the Medicare program and its beneficiaries would constitute a basis for denial or revocation.  We stated that considering the very serious nature of any felony conviction, our authority in §§ 424.530(a)(3)(i) and 424.535(a)(3)(i) should not be restricted to the categories of felonies identified in (a)(3)(i); this was especially true considering that the types of felony offenses often vary from state to state.

79 Fed. Reg. 72,500, 72,509-10 (Emphasis added).  The preamble makes clear that CMS intends that 42 C.F.R. § 424.530(a)(3)(i) lists felony offenses that CMS has determined are detrimental to Medicare and its beneficiaries.  But the list of offenses in 42 C.F.R. § 424.530(a)(3)(i) is also a non-exhaustive list of examples of the types of felony offenses that CMS has determined are detrimental to Medicare or its beneficiaries.  In this case, the CMS hearing officer concluded that Petitioner’s offense was per se detrimental under 42 C.F.R. § 424.530(a)(3)(i)(D) because it was a felony that resulted in exclusion of Petitioner from Medicare, Medicaid, and all federal healthcare programs pursuant to section 1128(a) of the Act.  CMS Ex. 1 at 3.

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Applying the law to the facts is not complicated.  The first two elements, i.e., conviction and conviction of a felony are satisfied.

There is no dispute that Petitioner was charged in the district court with one felony count of violation of the Anti-Kickback Statute.  CMS Ex. 1 at 14, 20.  The Anti-Kickback Statutes specifically provides that its violation is a felony offense with maximum penalties of $100,000 fine and 10 years in prison.  Act § 1128B(b) (42 U.S.C. § 1320a-7b(b)(1)-(2)).

There is no dispute Petitioner pleaded guilty to violation of the Anti-Kickback Statute, his guilty plea was accepted, and judgment of guilt was entered by the district court.  CMS Ex. 1 at 21-27, 62-75.  The definition of conviction at 42 CFR 1001.2 is incorporated by reference in 42 C.F.R. § 424.530(a)(3).  Pursuant to 42 C.F.R. § 1001.2, a conviction occurs when judgment of conviction is entered, a finding of guilt is made, or a guilty plea is accepted.

Therefore, there is no dispute that Petitioner was convicted of the felony offense of violation of the Anti-Kickback Statute when his guilty plea was accepted by the district court.

The third element requires that the felony conviction have occurred during the 10 years preceding filing of the application under consideration by CMS.  Petitioner’s conviction occurred February 19, 2016, when the district court accepted his guilty plea.  CMS Ex. 1 at 21-27, 62-75.  The application that CMS denied was filed on December 20, 2024.  CMS Ex. 1 at 35.  There is no dispute that the denied application was filed within 10 years of Petitioner’s conviction.

The fourth element requires consideration of the CMS hearing officer’s determination that Petitioner’s felony offense was detrimental to Medicare and its beneficiaries.  The hearing officer found that the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Act based on his conviction by the district court.  CMS Ex. 1 at 3-4, 57-58.  The hearing officer also concluded that the Secretary listed any felony offense that would result in mandatory exclusion under section 1128(a) of the Act as an offense that is detrimental to Medicare or its beneficiaries.  CMS Ex. 1 at 3-4.  The hearing officer referred to Petitioner’s offense as “per se” detrimental because the Secretary specifically stated in the regulation that an offense for which the IG may impose exclusion under section 1128(a) or the Act is detrimental to Medicare and its beneficiaries, without need for further analysis.  42 C.F.R. § 424.530(a)(3)(i)(D).  The Board has referred to the offenses listed in 42 C.F.R. § 424.530(a)(3)(i) as “presumptively detrimental.”  Saeed A. Bajwa, M.D., DAB No. 2799 at 9 (2017).  But characterizing the listed offenses as presumptively detrimental may suggest that the presumption could be rebutted, which does not appear to

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be the intent of the regulation based on its regulatory history.  Petitioner did not attempt to rebut the presumption in this case.

Accordingly, I conclude that CMS had a basis to deny Petitioner’s December 20, 2024 Medicare enrollment application pursuant to 42 C.F.R. § 424.530(a)(3).  CMS has discretion under 42 C.F.R. § 424.530(a)(3) not to deny enrollment even when there is a basis for denial.  But my review does not extend to whether CMS correctly exercised its discretion to deny enrollment.  See Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010); Letantia Bussell, M.D., DAB No. 2196 at 12-13 (2008).  The scope of my authority is limited to determining whether there is a legal basis for denial of Petitioner’s Medicare enrollment and billing privileges.

Preclusion List Analysis

Petitioner’s challenge to having his name added to the CMS preclusion list must also be resolved against him as a matter of law.  Because I have found that there is a basis for denial of enrollment CMS has a basis for adding Petitioner to the CMS preclusion list for the duration of his reenrollment bar.  42 C.F.R. §§ 422.222, 423.120.  Under 42 C.F.R. § 422.222(a)(5)(iii) an individual or entity, whether or not enrolled in Medicare that is on the CMS preclusion list due to a felony conviction, remains on the preclusion list for 10 years beginning on the date of the felony conviction, unless CMS determines a shorter time is warranted.  CMS is required to consider the severity of the offense, when the offense occurred, and any other information CMS deems relevant.  When an individual or entity is also excluded by the IG, the individual or entity remains on the preclusion list until the expiration of the preclusion list period imposed by CMS or reinstatement by the IG, whichever occurs later.  42 C.F.R. § 422.222(a)(5)(iv).  Similar provisions are found in 42 C.F.R. § 423.120(c)(6)(vii)(C) and (D) related to the Medicare Part D program.  CMS has the discretion not to list an individual or entity on the preclusion list or to remove the individual or entity from the list under the exceptional circumstance described in 42 C.F.R. § 422.222(a)(6) and § 423.120(c)(6)(vi), none of which are alleged this case.

There is a basis for adding Petitioner’s name to the CMS preclusion list based on his conviction.  Once I have found that there is a basis for adding a name to the preclusion list, I have no authority to conduct review of whether the CMS decision to add the name to the preclusion list was a proper exercise of discretion.  42 C.F.R. §§ 422.2, 423.100 (2018); 83 Fed. Reg. 16,440, 16,641-67.

Petitioner’s Questions/Arguments

Petitioner’s request for hearing and brief reflect his frustration with trying to understand the interplay of the actions of CMS and the IG.

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In his request for hearing and brief, Petitioner states he is not challenging the facts.  RFH at 1; P. Br.  But he questions why CMS is “reimposing the preclusion when CMS had already imposed a preclusion penalty that was sent to [Petitioner] on May 22, 2018.”  RFH at 1; P. Br.  Petitioner was enrolled in Medicare with billing privileges prior to May 22, 2018.  The CMS action on May 22, 2018, was a revocation of Petitioner’s Medicare enrollment and billing privileges based on his conviction.  There was no preclusion list at that time.  Petitioner was excluded by the IG on March 30, 2018, pursuant to section 1128(a)(1) of the Act based on his conviction, which resulted in his name being added to the LEIE which is not the same as the CMS preclusion list.  CMS Ex. 1 at 57-59.  Petitioner notes that there is evidence he was reinstated twice.  But the evidence to which he points, i.e., National Provider Data Bank reports (DAB E-File # 1c and CMS Ex. 1 at 60-61), are evidence of his reinstatement by the IG at the expiration of his exclusion under 1128(a)(1) of the Act, which had no impact upon the May 22, 2018 revocation of his Medicare enrollment and billing privileges by CMS.  Petitioner expresses confusion about the authority for imposing a 10-year preclusion.  In this case, Petitioner’s name will not be on the preclusion list for 10 years as the 10-year period from his conviction expired in February 2026.  If Petitioner was referring to CMS authority to deny enrollment for a felony conviction that occurred during the 10 years prior to the application under consideration, that regulation was in effect before Petitioner’s conviction in 2016.  42 C.F.R. § 424.530(a)(3) (2015).  The 10-year rule was adopted effective June 20, 2006.  71 Fed. Reg. 20,754, 20,760 (Apr. 21, 2006).

To the extent that Petitioner’s argument may be construed to request a decision that the regulations are invalid, I have no authority to grant any relief on that basis.  I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).  The Board has stated:

It is well established that administrative forums, such as this Board and the Department’s ALJs, do not have the authority to ignore unambiguous statutes or regulations on the basis that they are unconstitutional.  A legislative rule is binding on the agency that issues it.  1 Kenneth Culp Davis and Richard J. Pierce, Jr., Administrative Law Treatise, § 6.5 (3rd ed. 1994), citing U.S. v. Nixon, 418 U.S. 683 (1974) (where the court noted that the executive branch was bound by the terms of a regulation it had issued, even though it was within its power to change that regulation).  Federal courts have refused “to recognize in administrative officers any inherent power to nullify legislative [or executive] enactments because of personal belief that they contravene the [C]onstitution.”  Gibas v. Saginaw Mining Co., 748 F.2d 1112, at 1117 (6th Cir. 1984) (citation omitted).  Thus, courts have noted that

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challenges to the constitutionality of an agency regulation lie outside the cognizance of that agency, and that generally, an ALJ is bound by the regulations promulgated by his administrative agency.  Howard v. FAA, 17 F.3d 1213, 1218 (9th Cir. 1994); Stieberger v. Heckler, 615 F. Supp. 1315, 1386 (S.D.N.Y. 1985), citing D’Amico v. Schweiker, 698 F.2d 903 (7th Cir. 1983).

Sentinel Medical Laboratories, Inc., DAB No. 1762, at 9 (2001), aff'd, Teitelbaum v. Health Care Financing Admin., 32 F. App’x 865 (9th Cir. 2002).

Petitioner may feel the actions of the IG and CMS are inconsistent with the prohibition against double jeopardy.  But denial of Petitioner’s enrollment in this case is not a criminal penalty or a civil penalty (and it is referred to as neither by the drafters of the regulation), but is more akin to an ineligibility or disqualifier for professional licensing; the statutory scheme under 42 C.F.R. pt. 424 is not punitive in nature; and 42 C.F.R. § 424.530(a)(3) has never been declared punitive.  See Joann Fletcher Cash, DAB 1725 (2000).  Therefore, the double jeopardy clause does not apply in this administrative context.

Petitioner’s argument might be construed to be that CMS and the MAC should be estopped from denying Petitioner’s Medicare enrollment application.  But estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  There is no evidence suggesting fraud or other affirmative misconduct on the part of CMS, the MAC, or a staff member.

Petitioner’s arguments may be construed to be requests for equitable relief as he argues another individual was placed on the CMS preclusion list for a shorter period.  But I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14.

III.  Conclusion

For the foregoing reasons, I conclude that there was a basis to deny Petitioner’s

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application to enroll in Medicare pursuant to 42 C.F.R. § 424.530(a)(3) and to place Petitioner’s name on the CMS preclusion list for 10 years from the date of his conviction.