Robert Kevin Lynch, D.O., DAB No. 3198 (2025)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Robert Kevin Lynch, D.O. (Petitioner) appeals the decision of an administrative law judge (ALJ) in Robert Kevin Lynch, D.O.,DAB CR6571 (2024) (ALJ Decision).  The ALJ Decision upheld determinations by the Centers for Medicare & Medicaid Services (CMS) to deny Petitioner’s enrollment in the Medicare program and place Petitioner on the preclusion list based on his felony conviction for poisoning and killing his neighbor’s dogs.  We affirm the ALJ Decision because it is supported by substantial evidence and not legally erroneous.

Legal Background

CMS is authorized under the Social Security Act (Act) to administer the enrollment of health care practitioners in Medicare through regulations promulgated by the Secretary of Health and Human Services (Secretary).  Act § 1866(j)(1)(A).  The requirements for establishing and maintaining Medicare billing privileges are set forth in 42 C.F.R. Part 424, Subpart P (sections 424.500-.575).¹  The regulations require that a supplier of Medicare services, such as a physician, enroll in the Medicare program to receive payment (under Medicare Part B) for covered physician and outpatient services.  42 C.F.R. §§ 400.202 (defining “Medicare Part B” and “Supplier”), 424.500, 424.505; see also Act §§ 1861(d), (q), (r), 1842.   

The Act gives the Secretary discretion to refuse to enter into a Medicare participation agreement or to terminate or refuse to renew an agreement with a physician or supplier who “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.”  Act § 1842(h)(8) (emphasis added).  The Secretary delegated the authority to deny a supplier’s Medicare enrollment to CMS through 42 C.F.R. § 424.530.  

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CMS, therefore, may deny a supplier’s enrollment in the Medicare program for any of the reasons enumerated in 42 C.F.R. § 424.530(a).  

Section 424.530(a)(3) authorizes CMS to deny enrollment if the supplier “was, within the preceding 10 years, convicted (as that term is defined in 42 CFR 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.530(a)(3) (emphasis added).²  CMS’s authority to determine whether a felony is detrimental to the Medicare program and its beneficiaries derives from section 1842(h)(8) of the Act and the Secretary’s delegation of authority to CMS through applicable regulations.  See Lilia Gorovits, M.D., P.C., DAB No. 2985, at 11 (2020) (discussing CMS authority to determine whether a felony offense is detrimental to the best interests of the Medicare program in the revocation context); Letantia Bussell, M.D., DAB No. 2196, at 12 (2008) (same).

Effective January 1, 2019, CMS implemented a “preclusion list” applicable to the Medicare Advantage (MA) program (Part C) and Voluntary Medicare Prescription Drug Benefit program (Part D) as part of CMS’s effort to “prevent fraud, waste, and abuse, and to protect Medicare enrollees.”  See 82 Fed. Reg. 56,336, 56,448 (Nov. 28, 2017); 83 Fed. Reg. 16,440, 16,643 (Apr. 16, 2018).  An individual placed on the preclusion list is prohibited from receiving reimbursement for health care items, services, or drugs provided under Medicare Part C (42 C.F.R. § 422.222) and from receiving reimbursement for drugs prescribed under Medicare Part D (42 C.F.R. § 423.120(c)(6)). 

CMS may place an individual³ on the preclusion list when, among other things, the individual, “regardless of whether they are or were enrolled in Medicare, has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.”  42 C.F.R. §§ 422.2 (Part C), 423.100 (Part D).  In determining whether a felony conviction is detrimental to the best interests of the Medicare program, CMS considers the severity of the offense, when the offense occurred, and any other information CMS deems relevant to its determination.  Id.  An individual placed on the preclusion list based on a felony conviction will remain on the preclusion list for 10 years, beginning on the date of the felony conviction, unless CMS determines a shorter period is warranted.  Id. §§ 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C).  CMS has discretion not to include a particular individual on (or if warranted, to remove the individual from) the preclusion list if CMS determines that “exceptional circumstances” exist regarding beneficiary

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access to Part C (MA) items, services, or drugs, or Part D prescriptions.  Id. §§ 422.222(a)(6), 423.120(c)(6)(vi). 

A supplier may appeal an enrollment denial and placement on the preclusion list in accordance with the administrative appeal procedures in 42 C.F.R. Part 498.  42 C.F.R. §§ 422.222(a)(2)(i), 423.120(c)(6)(v)(A), 424.545(a).  CMS’s decision to deny a supplier’s Medicare enrollment and place the supplier on the preclusion list is an “initial determination” under Part 498.  Id. §§ 498.3(b)(17), (20).  The supplier must first request “reconsideration” of the initial determination and, if dissatisfied with the reconsidered determination, may request a hearing before an ALJ.  Id. §§ 498.5(1), 498.5(n), 498.22, 498.40.  A party dissatisfied with an ALJ’s decision may request Board review of the ALJ decision.  Id. §§ 498.5(1)(3), 498.5(n)(3), 498.80.

Case Background

A.       Petitioner was convicted of felony animal cruelty for killing and poisoning his neighbor’s dogs.

Petitioner is a physician licensed to practice medicine in Texas since 1997 and board certified in general surgery since 1999.  P. Ex. 5, at 1; P. Ex. 7, at 1 (¶ 1).  Petitioner was enrolled in the Medicare program from 1997 through 2019.  P. Ex. 7, at 1 (¶ 2).

On September 6, 2017, Petitioner pleaded guilty, in the District Court of Ector County, Texas, to two felony counts of Cruelty to Non-Livestock Animals – Killing/Poisoning under Texas law.  P. Ex. 6.  Petitioner poisoned and killed his neighbor’s dogs due to their incessant barking and disruption of his family’s home life.  P. Ex. 7, at 1 (¶¶ 3-6).  Under Texas law, a person who “intentionally, knowingly, or recklessly . . . without the owner’s effective consent, kills, administers poison to, or causes serious bodily injury to an animal” commits a felony.  Tex. Penal Code Ann. § 42.092(b)(2), (c) (West 2007).  “Animal,” for purposes of this provision, means a domesticated living creature.  Id. § 42.092(a)(2).  The Texas court accepted Petitioner’s guilty plea, entered an order of deferred adjudication, imposed a fine, placed Petitioner on two years of community supervision, and required Petitioner to attend an anger management class.  P. Ex. 6, at 1‑7; P. Ex. 7, at 2 (¶ 7).

Following Petitioner’s conviction, the Texas Medical Board filed a formal complaint against Petitioner.  P. Ex. 8, at 1.  The Texas Medical Board noted the following charges against Petitioner:  “[Petitioner] was arrested and charged with two felony counts of animal cruelty, to which he plead[ed] guilty.  The charges were based upon [Petitioner’s] poisoning and killing of his backyard neighbor’s two dogs and poisoning and attempted killing of their third dog.”  Id. 

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On August 16, 2019, the Texas Medical Board issued an “Agreed Order on Formal Filings” (Agreed Order), which Petitioner signed on June 26, 2019.  P. Ex. 8, at 1, 10.  The Texas Medical Board found that Petitioner “lived across a backyard alleyway from a family with three pet dogs”; that Petitioner “mixed several poisonous ingredients with raw meat and twice threw handfuls of the concoction over his neighbors’ fence”; that Petitioner “intentionally killed two of his neighbor’s dogs and caused grievous harm to the third”; that Petitioner “was arrested, charged and plead[ed] guilty to two felony counts of Cruelty to Non-Livestock Animals – Killing/Poisoning”; and that Petitioner “fulfilled the terms of his probation, including restitution to the family for veterinarian bills.”  Id. at 2.  The Texas Medical Board noted the following aggravating factors:  (i) “When his first attempt resulted in the death of one dog, [Petitioner] repeated his crime with the intent to kill the remaining two”; and (ii) “Although [Petitioner] denies it, the police report indicates that he lied to officers during the investigation.”  Id. at 3. 

The Texas Medical Board concluded that it was authorized to take disciplinary action against Petitioner based on his criminal behavior.  Id. at 3.  The Agreed Order required that Petitioner undergo an independent medical evaluation conducted by a Board-Certified Psychiatrist, pay a $5,000 penalty, and complete eight hours of continuing medical education on the topic of ethics.  Id. at 4, 6.  Petitioner’s medical license was not suspended or terminated; however, Petitioner “voluntarily terminated” his enrollment in Medicare effective August 30, 2019.  P. Ex. 7, at 1-2 (¶¶ 2, 8).   

B.       CMS denied Petitioner’s enrollment in the Medicare program and placed him on the preclusion list.

In 2023, Petitioner applied to reinstate his Medicare enrollment and billing privileges.  P. Ex. 3, at 1.  By letter dated May 22, 2023, Novitas Solutions, a Medicare administrative contractor, notified Petitioner that his enrollment application was denied under 42 C.F.R. § 424.530(a)(3) based on Petitioner’s felony conviction on September 6, 2017, for Cruelty to Non-Livestock Animals – Killing/ Poisoning.  P. Ex. 2, at 1 (“After reviewing the specific facts and circumstances surrounding your felony conviction, CMS has determined that your felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries.”).  Novitas explained that Petitioner would also be added to the preclusion list based on the same felony conviction.  Id. (citing 42 C.F.R. §§ 422.2, 422.222, 423.100, and 423.120(c)(6)).  The letter advised Petitioner that he could request reconsideration and warned that the reconsideration stage was the “only opportunity to submit information during the administrative appeals process unless an ALJ allows additional information to be submitted.”  Id. at 2.   

By letter dated July 19, 2023, Petitioner, through his former counsel, requested reconsideration of the enrollment denial and preclusion list determinations.  P. Ex. 3.  The reconsideration request stated that on July 15, 2019, Petitioner informed Novitas of his conviction and “voluntarily” terminated his Medicare billing privileges.  Id. at 1.  The

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letter noted that Novitas accepted Petitioner’s “voluntary termination” and “did not impose any further sanctions.”  Id.  The letter requested that Petitioner’s “inclusion on the preclusion list be withdrawn” but did not specifically challenge CMS’s determination that Petitioner’s felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries.  Id. at 2.   

C.       CMS upheld on reconsideration Petitioner’s enrollment denial and placement on the preclusion list.

On November 7, 2023, CMS issued a reconsidered determination, upholding Petitioner’s enrollment denial under section 424.530(a)(3) because he was convicted within the preceding ten years of felony offenses that CMS determined are “detrimental to the best interests of the Medicare program and its beneficiaries based on the facts and circumstances surrounding his conviction.”  P. Ex. 4, at 4.  CMS noted that Petitioner did not dispute that he was convicted (within the meaning of 42 C.F.R. § 1001.2) based on his guilty plea and deferred adjudication on two felony counts of Cruelty to Non-Livestock Animals – Killing/Poisoning.  Id.; see also P. Ex. 6.  CMS described Petitioner’s criminal conduct as follows:

[Petitioner’s] felony conviction involves his cruelty against animals.  Specifically, [Petitioner] concocted a toxic mixture of raw meat, raisins, rat poison, and anti-freeze and subsequently threw the toxic mixture over his neighbor’s fence, resulting in the death of his neighbor’s two dogs and grievous injury to a third dog.  [Petitioner] killed and administered the poison to his neighbors’ dogs because of their barking.  Further, when his first attempt resulted in the death of one dog, [Petitioner] repeated his crime with the intent to kill the remaining two.  In addition, the Texas Medical Board concluded that, although he denied it, the police report indicates that he lied to officers during the investigation.

P. Ex. 4, at 4 (exhibit citations omitted).⁴

After recounting the facts and circumstances of Petitioner’s conduct, CMS determined that Petitioner’s “actions are cruel, heinous, reprehensible and display that he does not value all life forms, and lacks good judgment.”  Id.  CMS further found that Petitioner’s behavior “indicates an intentional disregard for the property of others.”  Id.  CMS concluded that Petitioner’s “felony conviction is detrimental to the best interests of the Medicare program and its beneficiaries as honesty, the exercise of good judgment, and the respect for life is vital to the practice of medicine.”  Id.

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CMS upheld Petitioner’s placement on the preclusion list based on the same felony conviction.  P. Ex. 4, at 5.  For purposes of the preclusion list determination, CMS analyzed each factor under 42 C.F.R. §§ 422.2 and 423.100 and found that Petitioner’s felony conviction is detrimental to the best interests of the Medicare program and warranted his placement on the preclusion list until September 6, 2027.  Id.   

D.       The ALJ upheld the denial of Petitioner’s Medicare enrollment and placement on the preclusion list.

Petitioner requested and was granted an extension to appeal CMS’s reconsidered determination.  ALJ Decision at 2.  On June 7, 2024, Petitioner filed a request for hearing along with 11 proposed exhibits (P. Exs. 1-11).⁵  Id.  CMS subsequently filed a combined motion for summary judgment and prehearing brief without exhibits.  Petitioner filed a prehearing brief in response, and CMS filed a reply.  Id.  Although Petitioner submitted his own written direct testimony in the form of an affidavit (P. Ex. 7), CMS did not request to cross-examine Petitioner and did not object to any of Petitioner’s proposed exhibits.  Id. at 3.  The ALJ admitted the exhibits (P. Exs. 1-11) without objection.  Id.  Without a request for cross-examination, the ALJ found an in-person hearing would serve no purpose.  Id.  Accordingly, the ALJ decided the case based on the written record and denied CMS’s summary judgment motion as moot.  Id.

The ALJ sustained CMS’s decision to deny Petitioner’s enrollment in Medicare under section 424.530(a)(3) because Petitioner was convicted within the preceding ten years of two felony counts of “Cruelty to Non-Livestock Animals – Killing/Poisoning” that CMS “reasonably concluded” are detrimental to the best interests of the Medicare program and its beneficiaries.  ALJ Decision at 6-11 (summarizing the facts and circumstances of Petitioner’s felony conviction and analyzing CMS’s “case-specific determination” concerning Petitioner’s criminal conduct).  The ALJ also upheld CMS’s decision to place Petitioner on the preclusion list based on his felony conviction.  Id. at 11-14.  The ALJ questioned whether he had authority to review the length of time CMS included Petitioner on the preclusion list, but ultimately concluded that CMS was authorized to place Petitioner on the preclusion until September 6, 2027 – ten years from the date of his felony conviction.  Id. at 14-15 (“[T]o the extent I have jurisdiction to do so, I uphold CMS’s determination to maintain Petitioner’s name on the CMS Preclusion List until September 6, 2027.”).

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Standard of Review

The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole.  The standard of review on a disputed issue of law is whether the ALJ decision is erroneous.  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program, at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html.

Analysis

Petitioner filed a Request for Review (RR) challenging the enrollment denial and preclusion list determinations upheld by the ALJ.  Petitioner does not dispute that he was convicted of a felony within the previous 10 years but challenges CMS’s determination that his felony animal cruelty offenses are detrimental to the best interests of the Medicare program and its beneficiaries.  Petitioner argues that the ALJ erred by upholding CMS’s enrollment denial and preclusion list determinations because:

• he did not commit a crime that “falls into” any of the four enumerated felony offense categories under section 424.530(a)(3)(i)(A)-(D) (RR at 3);
• CMS did not consider “factors that should be weighed” in deciding whether Petitioner’s offenses are detrimental to the best interests of the Medicare program and its beneficiaries, including Petitioner’s history of providing “excellent care” to Medicare beneficiaries, the absence of other criminal conduct or disciplinary actions, the results of Petitioner’s psychiatric evaluation, his ability to perform “much needed” surgical services in his community, and that the “underlying offense” occurred more than seven years ago (RR at 4);
• CMS did not conduct a “meaningful review” of the applicable regulatory factors for placing Petitioner on the preclusion list until September 6, 2027 (RR at 6); and
• CMS does not have “total discretion” to deny Petitioner’s enrollment in Medicare, to place Petitioner on the preclusion list, or to determine the length of time Petitioner must remain on the preclusion list and, under Loper BrightEnterprises v. Raimondo, 603 U.S. 369 (2024), such administrative agency decisions are subject to “judicial review” (RR at 2-3, 5-6).

Petitioner asks that the Board overturn the denial of his Medicare enrollment and placement on the preclusion list or, in the alternative, reduce the length of time he must remain on the preclusion list.  RR at 6.  For the reasons explained below, we reject each

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of Petitioner’s arguments and affirm the ALJ Decision because it is supported by substantial evidence and not legally erroneous.

I.        The ALJ’s conclusion that CMS had a lawful basis to deny Petitioner’s Medicare enrollment under 42 C.F.R. § 424.530(a)(3) is supported by substantial evidence and not legally erroneous.

“The ALJ’s (and the Board’s) role in an appeal of CMS’s denial or revocation of enrollment in the Medicare program is to determine whether CMS had a legal basis for its action.”  Dr. Robert Kanowitz, DAB No. 2942, at 4 (2019).  “If it did, then we are bound to affirm the denial or revocation.”  Id.  “We do not review CMS’s exercise of discretion in determining to take the action under review.”  Id.  Thus, “where CMS is legally authorized to deny an enrollment application, an ALJ cannot substitute his or her discretion for that of CMS . . . in determining whether, under the circumstances, denial is appropriate.”  Brian K. Ellefsen, DO, DAB No. 2626, at 7 (2015); see also Ronald Paul Belin, DPM, DAB No. 2629, at 5 (2015) (“[W]here CMS is legally authorized to deny an enrollment application, neither an ALJ nor the Board itself is empowered to substitute for CMS or its contractor in determining how to exercise its discretion.” (original underlining changed to italics)). 

CMS may deny a prospective supplier’s Medicare enrollment under section 424.530(a)(3) if the supplier was, within the preceding 10 years, convicted of a felony offense “that CMS determines is detrimental to the best interests of the Medicare program and its
beneficiaries.”  42 C.F.R. § 424.530(a)(3).  A supplier is “convicted” for purposes of section 424.530(a)(3) if, among other things, a court accepts the supplier’s guilty plea, or the court enters a deferred adjudication where judgment of conviction has been withheld.  See 42 C.F.R. § 1001.2 (cross-referenced in section 424.530(a)(3)).  Petitioner does not dispute that he was convicted of a felony on September 6, 2017, when a Texas court accepted his guilty plea and entered a deferred adjudication on two felony counts of Cruelty to Non-Livestock Animals – Killing/Poisoning.  ALJ Decision at 7-8 (citing P. Ex. 6).  There is also no dispute that CMS’s contractor denied Petitioner’s application to enroll in the Medicare program on May 22, 2023, within ten years of that conviction.  Id. at 8; see also P. Ex. 2. 

The only question is whether Petitioner’s felony offense is one that CMS has determined “is detrimental to the best interests of the Medicare program and its beneficiaries.”  See 42 C.F.R. § 424.530(a)(3).  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.  ALJ Decision at 6-11.

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A.       CMS’s authority to deny enrollment under 42 C.F.R. § 424.530(a)(3) is not limited to felony offenses that fall within a named offense category.

Petitioner argues that animal cruelty is not a qualifying felony because it does not fall into any of the four offense categories listed under section 424.530(a)(3)(i)(A)-(D).  RR at 3.  We reject this argument because the Board has long held that CMS is authorized to determine, on a case-by-case basis, whether a felony offense is detrimental to the Medicare program and its beneficiaries, even if the conviction is for a crime other than one of the felonies enumerated in the regulation.  See Eva Orticio Villamor-Goubeaux, DAB No. 2997, at 8 (2020); Michael Scott Edwards, OD, and M. Scott Edwards, OD, PA, DAB No. 2975, at 9 (2019); Brenda Lee Jackson,DAB No. 2903, at 8 (2018); Fady Fayad, MD.,DAB No. 2266, at 8 (2009), aff’d,803 F. Supp. 2d 699 (E.D. Mich. 2011).

The regulatory language Petitioner points to expressly provides that felony offenses that may result in an enrollment denial “include, but are not limited in scope or severity to” (A) felony crimes against persons, (B) financial crimes, (C) any felony that placed the Medicare program or its beneficiaries at immediate risk; or (D) any felonies that would result in a mandatory exclusion.  See 42 C.F.R. § 424.530(a)(3)(i)(A)-(D) (emphasis added).  Thus, by the plain language of the regulation, felonies that CMS may determine are detrimental are not limited to the four categories listed in the regulation.

Moreover, when CMS revised the Medicare regulations (effective February 3, 2015), CMS explained 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 [specified] categories of felonies.”  79 Fed. Reg. 72,500, 72,509-10 (Dec. 5, 2014).  Accordingly, “to further emphasize CMS’ discretion to use felonies other than those specified in §§ 424.530(a)(3) and 424.535(a)(3) as grounds for denial or revocation, we [CMS] have included the phrase ‘but are not limited in scope or severity’ within both provisions.”  Id. at 72,512.  Thus, CMS “modif[ied] the list of felonies in each section such that any felony conviction that we [CMS] determine to be detrimental to the best interests of the Medicare program and its beneficiaries would constitute a basis for denial or revocation.”  Id. at 72,509.  CMS further explained that it takes the severity of the underlying offense into account when determining whether an enrollment denial or revocation is warranted, and that “[e]ach case will be carefully reviewed on its own merits and . . . we will act judiciously and with reasonableness in our determinations.”  Id. at 72,510.  

The Board has further explained that the offense categories specified in the regulation “mean that CMS has determined, by rulemaking, that certain types of felony offenses are presumptively, or per se, detrimental to the best interests of the Medicare program and its

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beneficiaries.”  Villamor-Goubeaux at 8 (footnote omitted) (collecting cases).  Thus, in those cases involving a felony offense specified in the regulation, CMS need not make a case-specific determination that the offense is detrimental to the Medicare program and its beneficiaries.  See Del Piano at 13 (collecting cases).  That does not mean, however, that CMS’s authority to deny enrollment under section 424.530(a)(3) is limited to those felony offenses enumerated in the regulation.  To the contrary, the regulations authorize CMS to determine on a case-by-case basis whether a felony offense not identified in the regulation is detrimental to the best interests of the Medicare program and its beneficiaries.  See Villamor-Goubeaux at 8. 

B.       CMS reasonably concluded that Petitioner’s felony animal cruelty offenses are detrimental to the best interests of the Medicare program and its beneficiaries.

As discussed above, CMS did not rely on the listing of per se detrimental offenses under section 424.530(a)(3)(i) but made a “case-specific determination” that Petitioner’s felony offenses are detrimental to the best interests of the Medicare program and its beneficiaries.  ALJ Decision at 8; P. Ex. 4, at 4.  Notably, Petitioner did not argue on reconsideration that his felony offenses are not detrimental to the Medicare program and its beneficiaries.  ALJ Decision at 10 (“I note that Petitioner’s request for reconsideration did not discuss the specific facts surrounding the felony convictions or expressly challenge the determination that the felony offenses were detrimental to the best interests of the Medicare program and its beneficiaries.” (citing P. Ex. 3)).  Indeed, much of the evidence that Petitioner submitted to the ALJ (P. Exs. 5, 7, 9, 10, 11) was evidence that Petitioner did not provide to CMS with his reconsideration request as required by 42 C.F.R. § 405.803(c).    

In any event, CMS considered the evidence presented and made its determination “based on the facts and circumstances surrounding [Petitioner’s] conviction.”  P. Ex. 4, at 4.  CMS recounted that Petitioner “concocted a toxic mixture of raw meat, raisins, rat poison, and anti-freeze and subsequently threw the toxic mixture over his neighbor’s fence,” that Petitioner poisoned the dogs because of their barking, that Petitioner repeated his crime when Petitioner’s first attempt resulted in the death of only one dog, and that Petitioner’s actions ultimately resulted in “the death of his neighbor’s two dogs and grievous injury to a third dog.”  Id.  CMS determined that Petitioner’s actions are “cruel, heinous, reprehensible,” show a callous disregard for life, and “an intentional disregard for the property of others.”  Id.  CMS explained that it relies on the “trustworthiness and best judgment” of its Medicare partners and that Petitioner’s criminal conduct demonstrates a lack of good judgment and respect for life.  Id.   

The ALJ carefully reviewed CMS’s assessment of the evidence and found that “CMS’s case-specific determination that Petitioner’s felony offenses are detrimental to the best interests of the Medicare program and its beneficiaries is reasonable.”  ALJ Decision at 8. 

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The ALJ did not accept all of CMS’s characterizations of the evidence, including a statement that Petitioner was motivated to kill the dogs due to the mere “inconvenience of barking,” an allegation about lying to the police based on a police report that was not in the record, and speculation that Petitioner struggles with impulse control and anger management.  Id. at 10-11.  Despite what the ALJ described as “the hearing officer’s unhelpful consideration of these ancillary matters,” the ALJ found that CMS’s “primary concern involved Petitioner’s lack of judgment and failure to respect life” – both of which were evident when Petitioner killed two dogs and injured a third.  Id. at 11 (“The killings cannot be justified and represent poor judgment.  . . .  Further, the poisoning and killing of domestic pets show a failure to respect life.  Obviously, this is essential in a health care provider.”).  The ALJ noted that “better judgment would have resulted in retaining a lawyer to seek legal redress” due to the incessant barking, as Petitioner acknowledged during his psychiatric examination.  Id. (citing P. Ex. 9, at 5).  The ALJ did not err in concluding, based on these “significant justifications,” that “CMS reasonably determined that Petitioner’s felony offenses are detrimental to the Medicare program and its beneficiaries.”  Id.     

C.       Mitigating “factors” that CMS may have weighed do not negate its determination that felony animal cruelty offenses are detrimental to the best interests of the Medicare program and its beneficiaries.

While acknowledging that the ALJ reviewed and upheld CMS’s case-specific determination, Petitioner argues that “CMS did not consider factors that should be weighed” before determining that Petitioner’s offenses are detrimental to the best interests of the Medicare program and its beneficiaries.  RR at 3-4.  Petitioner asks the Board to overturn his enrollment denial given his history of providing “excellent care” to Medicare beneficiaries, the absence of other criminal conduct or disciplinary actions, the results of Petitioner’s psychiatric evaluation, his ability to perform “much needed” surgical services in his community, and because the “underlying offense” occurred more than seven years ago.  Id. at 3-4, 6.      

As an initial matter, the mere passage of more than seven years since Petitioner’s conviction does not preclude CMS from finding that Petitioner was convicted of a felony warranting his enrollment denial under section 424.530(a)(3).  The only legally mandated time limit under section 424.530(a)(3) is the requirement that the conviction occur “within the preceding 10 years.”  That time limitation is unquestionably satisfied here.

Moreover, none of Petitioner’s other contentions negate CMS’s reasonable conclusion that felony animal cruelty is detrimental to the best interests of the Medicare program and its beneficiaries.  The central purpose of the enrollment provisions is to protect beneficiaries and the Medicare program and, to that end, CMS is rightfully concerned about maintaining the integrity of the program.  See 71 Fed. Reg. 20,754, 20,758, 20,773-74 (Apr. 21, 2006).  Petitioner knowingly and intentionally poisoned and killed two of his

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neighbor’s dogs and grievously injured a third dog.  Petitioner’s criminal offenses involved planning, deception, malice, cruelty, a disregard for life and property, and an indifference to the suffering of animals.  Petitioner’s conduct goes well beyond a lack of “good judgment,” and raises serious questions about his ability to reasonably resolve conflicts.  There are lawful ways to deal with problem neighbors (even ones that are a nuisance) that do not involve poisoning and killing their pets.  Given the concerns such behavior raises about a physician’s integrity, professionalism, ethics, and character, as well as CMS’s goal to protect the Medicare program from untrustworthy and abusive suppliers, the ALJ did not err in concluding that CMS reasonably determined that Petitioner’s felony offenses are detrimental to the best interests of the Medicare program and its beneficiaries. 

We further note that CMS’s case-specific determination is consistent with other Medicare enrollment denials involving animal cruelty.  Cf. Dr. Howard Van Nostrand, DC, DAB CR5802 (2021).  In Van Nostrand, a chiropractor was convicted of destruction of property and animal torture causing death when he purposely shot and killed a dog with a bow and arrow.  Id. at 4-5.  In upholding the supplier’s enrollment denial, the ALJ found that CMS “acted well within its discretion” when it determined that the felony offenses were detrimental to the Medicare program because they evidence “a disregard for the property of others and, worse, for an animal’s suffering.”  Id. at 6.⁷    

We further reject Petitioner’s argument that CMS should have considered other mitigating factors to the extent the argument challenges “CMS’s exercise of discretion, not its legal authority to act, a stratagem we have rejected.”  Edward J.S. Picardi, DAB No. 3045, at 15-16 (2021).  In enrollment appeals, the role of the Board (and the ALJ) is limited to determining whether CMS’s denial of enrollment “was authorized by law, and does not extend to questioning CMS’s discretion or judgment in taking such action where permitted by the applicable legal provisions.”  Kanowitz at 6.  We do not review CMS’s exercise of discretion in determining whether to deny enrollment.  Del Piano at 15.⁸  The Board reviews only whether the regulatory elements necessary for CMS to exercise its enrollment authority were satisfied.  Having determined that CMS had a legal basis for denying Petitioner’s enrollment under section 424.530(a)(3), we are bound to affirm it and do not review CMS’s exercise of discretion in determining that, under the circumstances, denial is appropriate.  See Kanowitz at 4; see also Picardi at 16 (“‘Neither the ALJ nor the Board is allowed to review CMS’s exercise of discretion to deny Petitioner’s application or to substitute its opinion as to whether Petitioner remains a threat to the Medicare program and its beneficiaries based on his felony conviction.’”)

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(quoting Robert J. Tomlinson, M.D., DAB No. 2916, at 8 (2018), aff’d, No. 19-cv-05114, 2020 WL 376657 (W.D. Ark. Jan. 23, 2020)).

Having concluded that the regulatory elements in section 424.530(a)(3) are met, we must sustain the enrollment denial regardless of other factors that CMS might have weighed in exercising its discretion.  Cf. John Hartman, D.O., DAB No. 2564, at 5-6 (2014) (holding that factors, such as physician’s lack of repeat offenses, favorable medical licensing determinations by other agencies, compliance with probation requirements, good reputation among patients and colleagues, and need for services in physician’s community are irrelevant in determining whether CMS had a legal basis for revocation based on felony conviction); see also Gorovits, DAB No. 2985, at 16-17 (rejecting argument that the ALJ or the Board should overturn revocation decision where state medical board had shown leniency in allowing physician to retain medical license despite felony conviction); Daniel Wiltz, M.D., et al., DAB No. 2864, at 12 (2018) (holding that physician’s reasons for committing a felony crime, his “regrets” for doing so, and the revocation’s impact on patients have no bearing on the question of whether CMS had a legal basis to revoke); Fayad, DAB No. 2266, at 15-17 (rejecting argument that revocation based on qualifying felony conviction was unwarranted in light of various factors, including the community’s need for physician’s services). 

In short, the regulations give CMS discretion to determine whether a felony offense is detrimental to the Medicare program and its beneficiaries.  See Bussell at 12 (emphasizing that the implementing regulations authorize CMS, not ALJs, to determine whether an offense is detrimental to the program).  Thus, the “essential question” is whether CMS determined that the felony offense “poses a risk to the best interests of the Medicare program.”  See Edwards at 10.  Here, CMS made precisely that determination and we find no error in the ALJ’s conclusion that CMS “reasonably determined” that Petitioner’s felony offenses are detrimental to the best interests of the Medicare program and its beneficiaries.  Accordingly, we affirm the ALJ’s conclusion that CMS had a lawful basis to deny Petitioner’s Medicare enrollment under section 424.530(a)(3).  

II.      The ALJ’s conclusion that CMS had a lawful basis to place Petitioner on the preclusion list until September 6, 2027, based on his felony conviction for animal cruelty is supported by substantial evidence and not legally erroneous.

An individual may be placed on the preclusion list if they are “convicted of a felony . . . within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.”  42 C.F.R. §§ 422.2, 423.100 (emphasis added).  In determining whether a felony conviction is detrimental to the program, CMS considers (i) the severity of the offense, (ii) when the offense occurred, and (iii) any other information CMS deems relevant to its determination.  Id.  An individual placed on the preclusion list based on a felony conviction will remain on the preclusion list for 10 years from the date of the conviction, “unless CMS determines,” based on its consideration of the same three

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factors, that a shorter period is warranted.  Id. §§ 422.222(a)(5)(iii) (emphasis added), 423.120(c)(6)(vii)(C) (emphasis added). 

Again, Petitioner does not dispute that he was convicted of a felony within the previous 10 years but argues that CMS did not conduct a “meaningful review” of the applicable regulatory factors and conducted only a “cursory evaluation” of the evidence with respect to its preclusion list determination.  RR at 6.  We disagree.  As the ALJ found, CMS considered the relevant regulatory factors in deciding to include Petitioner on the preclusion list until September 6, 2027, and we find no error in the ALJ’s analysis or conclusions.  ALJ Decision at 12-15.   

Contrary to Petitioner’s assertions, the reconsidered determination shows that CMS considered the relevant regulatory factors and the specific circumstances of Petitioner’s conviction in determining that his offenses are detrimental to the best interests of the Medicare program and that Petitioner be included on the preclusion list until September 6, 2027. ALJ Decision at 12-15; P. Ex. 4, at 4-5. Consistent with its determination that Petitioner’s offenses are detrimental to the best interests of the Medicare program for purposes of the enrollment denial, CMS also made specific findings regarding the relevant regulatory factors for purposes of its preclusion list determination.  P. Ex. 4, at 4-5.

Regarding the first factor, CMS determined that Petitioner’s felony animal cruelty offenses are “severe” because, as previously stated, Petitioner “knowingly and willfully poisoned and killed his neighbor’s dogs” due to their “excessive barking.”  P. Ex. 4, at 5.  CMS found that Petitioner’s conduct displayed a disdain for another’s property, a lack of good judgment, and disregard for life.  Id.  CMS again noted that the Medicare program depends on the “honesty, integrity, and good judgment of its partners,” and that Petitioner’s offenses are “reprehensible and severe.”  Id.  Regarding the second factor, CMS acknowledged that the crime was committed in December 2016 but found the “passage of time is outweighed by the severity of the offense.”  Id.  Regarding the third factor, CMS noted that “a determination of detriment to the best interests of the Medicare program is inherent” in the enrollment denial under section 424.530(a)(3), in which CMS determined that Petitioner’s felony offenses are detrimental to the best interests of the Medicare program and its beneficiaries.  Id.  CMS further found that Petitioner’s actions “reflect poorly on the medical profession” and “jeopardize public confidence in Medicare providers and suppliers.”  Id.  CMS explained that “Medicare is a program for the public and public confidence in the program is vital to its success.”  Id.  Thus, CMS concluded that Petitioner’s offenses are “detrimental to the best interests of the Medicare program” and that Petitioner will be placed on the preclusion list until September 6, 2027.  Id.  

The ALJ reviewed CMS’s assessment of each regulatory factor and upheld CMS’s preclusion list determination.  ALJ Decision at 13-15 (upholding “CMS’s determination that Petitioner’s felony offenses are detrimental to the Medicare program” and “CMS’s

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determination to maintain Petitioner’s name on the CMS Preclusion List until September 6, 2027”).  Moreover, we can discern no legal basis that would compel CMS to find Petitioner’s felony offenses not detrimental to the Medicare program for purposes of the preclusion list, having determined that they are detrimental for purposes of Petitioner’s enrollment denial.  See Omair Chaudry, M.D., DAB No. 3145, at 18 (2024) (upholding revocation and preclusion list determinations based on same felony conviction).

Contrary to Petitioner’s position, the preclusion list regulations do not require CMS to provide any further information concerning its determination that an offense is detrimental to the best interests of the Medicare program.  Cornelius M. Donohue, DPM, DAB No. 2888 (2018), a revocation case, dispensed with a comparable argument.  In Donohue, a supplier argued that CMS’s determination that a felony offense is detrimental to Medicare “was not ‘meaningful’ and [was] merely pro forma.”  Id. at 6.  The Board rejected that argument, explaining that “[t]he reconsidered determination shows that CMS reviewed the specific circumstances” of the supplier’s offense and “rationally concluded that his misconduct” eroded trust in the program’s suppliers.  Id.  We held that the applicable regulations did not require CMS “to otherwise explain” its finding that an offense is detrimental to Medicare.  Id. at 6-7.  As in Donohue, Petitioner has identified nothing in the applicable regulations requiring that CMS specifically address in its reconsidered determination the mitigating “factors” that Petitioner contends are relevant (RR at 4, 6).  Cf. Donohue at 6 (“Petitioner has identified no authority suggesting that any further explanation was required.”).  Moreover, Petitioner failed to present at the reconsideration stage much of the evidence he now faults CMS for not considering at that time.  Here, the applicable regulations only require that CMS consider the severity of the offense, the timing of the offense, and “other information CMS deems relevant to its determination.”  42 C.F.R. §§ 422.2, 423.100, 422.222(a)(5)(iii), 423.120(c)(6)(vii)(C) (emphasis added).  Petitioner has not established CMS’s failure to fulfill those requirements, or CMS’s obligation to do anything more.    

As explained above, CMS had a lawful basis to include Petitioner on the preclusion list based on his felony conviction for animal cruelty – an offense “CMS deems detrimental to the best interests of the Medicare program.”  42 C.F.R. §§ 422.2, 423.100.  Such a felony conviction within the required ten-year timeframe adequately supports Petitioner’s placement on the preclusion list, regardless of his contention that he does not pose a risk to the Medicare program.  See Michael D. Brandner, M.D., DAB No. 3175, at 13 (2025) (upholding preclusion list determination based on felony conviction where supplier argued that he “faithfully served” his prison sentence with “good behavior,” “successfully completed” probation, and cared for Medicare patients for 34 years without incident prior to his conviction). 

For all these reasons, we find the requirements for placing Petitioner on the preclusion list were met and, therefore, affirm the ALJ’s conclusion that CMS had a lawful basis to

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place Petitioner on the preclusion list until September 6, 2027, based on his felony conviction for animal cruelty.

III.     The Supreme Court’s decision in Loper Bright does not change the Board’s analysis or conclusions.

Petitioner argues that, based on Loper Bright, CMS does not have “total discretion” to deny Petitioner’s enrollment in Medicare, to place Petitioner on the preclusion list, or to determine the length of time Petitioner will remain on the preclusion list, and further argues that such administrative determinations are subject to “judicial review.”  RR at 2-3, 5-6.  Petitioner misunderstands Loper Bright,the ALJ’s conclusions, and the Board’s role in this case. 

In Loper Bright, the Supreme Court overruled the longstanding principle of Chevron deference, which directed courts to defer to an agency’s reasonable interpretation of an ambiguity in a law that the agency enforces.  See 603 U.S. at 412-13.⁹  The Supreme Court held that under the Administrative Procedure Act (APA) courts must exercise their independent judgment and “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”  Id. at 413.  The Court further held that “when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.”  Id.

The Board has previously explained that “the degree of deference which courts accord to various agency pronouncements concerning the meaning of applicable statutes and regulations is certainly a complex and evolving area of law, but it need not long detain us here.”  Orton Motor Co., DAB No. 2717, at 6 (2016), aff’d, 884 F.3d 1205 (D.C. Cir. 2018).  The Board is not a federal court; it is an “appellate adjudicative body in an administrative appeal process.”  Arizona Health Care Cost Containment Sys., DAB No. 2824, at 8 (2017).  Thus, “[w]hile the various court approaches to reviewing agency action inform our thinking, they do not directly apply to our role.”  Orton Motor at 6.¹⁰

This case, unlike Loper Bright, does not involve an issue of statutory interpretation.  The Board has not been presented with competing interpretations of, or claims of ambiguity in, any statute.  Nor do we find any ambiguity in the text of the applicable statutes and regulations. As discussed above, Congress authorized the Secretary to refuse to enter into a Medicare participation agreement with a physician or supplier who “has been convicted of a felony under Federal or State law for an offense which the Secretary

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determines is detrimental to the best interests of the program or program beneficiaries.”  Act § 1842(h)(8).  The Secretary lawfully delegated that authority to CMS.  See Gorovits at 11; Bussell at 12.  Thus, CMS is authorized to deny a supplier’s enrollment based on a “felony offense that CMS determinesis detrimental to the best interests of the Medicare program and its beneficiaries.”  42 C.F.R. § 424.530(a)(3).  Similarly, CMS is authorized to place an individual on the preclusion list if they are convicted of a felony “that CMS deems detrimental to the best interests of the Medicare program.”  Id. §§ 422.2, 423.100.

Neither the ALJ in this case (nor the Board) has held that CMS has “total discretion” to deny enrollment or place an individual on the preclusion list under the applicable regulations.  As summarized above, the ALJ thoroughly reviewed CMS’s assessment of the evidence related to both its enrollment denial and preclusion list determinations and made appropriate findings about those determinations.  See supra at pp. 10-11, 14-15.  Petitioner’s references to “judicial review” and APA standards are misplaced in these administrative proceedings.  See Brian O’Connor, DAB No. 3140, at 18 (2024).  The ALJ’s review authority “is ‘governed by the regulatory process established under 42 C.F.R. Part 498’—not the APA.”  Id. at 18 (citations omitted).  Thus, suppliers who are denied enrollment or placed on the preclusion list may request an ALJ hearing if dissatisfied with CMS’s reconsidered determination.  42 C.F.R. §§ 498.5(1), 498.5(n), 498.22, 498.40.  A party dissatisfied with an ALJ’s decision may request Board review of the ALJ decision.  Id. §§ 498.5(1)(3), 498.5(n)(3), 498.80.  Finally, a supplier dissatisfied with the Board’s decision has a right to seek “judicial review” of the Board’s decision in federal court.  Id. §§ 498.5(1)(3), 498.5(n)(3), 498.90.  Nothing in Loper Bright alters the review process established by Part 498 and implemented here by the ALJ and the Board.

Conclusion

For the reasons discussed above, we affirm the ALJ Decision.

Endnotes

¹  We cite to and apply the regulations in effect on May 22, 2023, the date of the initial determination denying Petitioner’s enrollment application and placing him on the preclusion list (P. Ex. 2). See Anthony Del Piano, M.D., DAB No. 3096, at 2 n.2 (2023).

²  An individual is “convicted” within the meaning of 42 C.F.R. § 1001.2 when, among other things, a court enters a judgment of conviction, a court accepts an individual’s guilty plea, or when an individual has entered into a deferred adjudication or other arrangement where judgment of conviction has been withheld.

³  The definition of preclusion list under Part D uses the term “prescriber” in place of the phrase “individual or entity.”  Compare 42 C.F.R. § 422.2 (Part C), with id. § 423.100 (Part D).  For purposes of this decision, we use the term “individual” to include the term “prescriber.”

⁴  The exhibit numbers in the reconsidered determination do not correspond to the record exhibits.

⁵  Petitioner did not comply with the requirement in Medicare enrollment appeals that providers and suppliers submit all evidence they want considered at the time of their reconsideration request, 42 C.F.R. § 405.803(c), despite being on notice of that requirement, P. Ex. 2, at 2.  Several of the exhibits Petitioner submitted to the ALJ were not provided to CMS at the time of Petitioner’s reconsideration request, including P. Exs. 5, 7, 9, 10, 11.  See P. Ex. 3, at 3 (exhibit list).  Moreover, not all exhibits listed in the reconsidered determination were made part of the record.  Cf. P. Ex. 4, at 2 (exhibit list).

⁶  Petitioner did not comply with the requirement in Medicare enrollment appeals that providers and suppliers submit all evidence they want considered at the time of their reconsideration request, 42 C.F.R. § 405.803(c), despite being on notice of that requirement, P. Ex. 2, at 2.  Several of the exhibits Petitioner submitted to the ALJ were not provided to CMS at the time of Petitioner’s reconsideration request, including P. Exs. 5, 7, 9, 10, 11.  See P. Ex. 3, at 3 (exhibit list).  Moreover, not all exhibits listed in the reconsidered determination were made part of the record.  Cf. P. Ex. 4, at 2 (exhibit list).

⁷  We may rely on revocation cases applying section 424.535(a)(3) because sections 424.530(a)(3) and 424.535(a)(3) implement the same legal standard and enrollment denials and revocations based on felony convictions share the same “core principles.”  See Del Piano at 12 n.13.

⁸  While ALJ decisions are not precedential or binding on other ALJs or the Board, they may be relevant in later cases provided their reasoning is on point and persuasive.  See Frederick Brodeur, M.D., DAB No. 2857, at 13 (2018).  Van Nostrand is relevant here to show that CMS’s enrollment decision is consistent with past practices.

⁹  CMS’s determination that an offense is detrimental to Medicare is distinct from the decision to deny enrollment because CMS could refrain from denying enrollment despite its determination that the offense is detrimental to the program.  See Hossain Sahlolbei, M.D., DAB No. 3139, at 11 n.9 (2024).

¹⁰  The Board has described its own analytical approach to deference as follows:  “When the language of a statute or regulation is clear, the Board will apply it by its terms.  When the language of a statute or regulation is ambiguous, the Board generally defers to the federal agency’s interpretation of the text if it is reasonable and the nonfederal party had timely and adequate notice of that interpretation or did not rely to its detriment on another reasonable interpretation.”  Missouri Dep’t of Soc. Sciences, DAB No. 3156, at 22 (2024) (citation modified).