Permanent Punishment for Conviction for One Ounce of Cocaine Improper

Government Overreach and Abuse Reversed

Barry Zalma

Nov 07, 2024

Transcript

After Recovery From Cocaine Abuse Dr. Regained License to Practice CMS Refused to Allow Dr. White to Bill Medicare for Services

Dr. Stephen White challenged two unfavorable decisions made by the Secretary for the United States Department of Health and Human Services (the “Secretary”) that denied and revoked his Medicare enrollment. The decisions, rendered by the Appellate Division of the Departmental Appeals Board (“Board”), were based on Dr. White’s 2010 guilty plea and deferred prosecution for possession of less than 1 gram of cocaine, which occurred in Texas in 2007.

In Stephen White, M.D. v. Xavier Becerra, Secretary for the United States Department of Health and Human Services, No. 2:19-CV-00037-SAB, United States District Court, E.D. Washington (October 28, 2024) the USDC applied entered a judgment reversing the decision of the Secretary [42 U.S.C. § 405(g).]

SUMMARY JUDGMENT

Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact.

BACKGROUND

Dr. White is an orthopedic surgeon. In 2006 and 2007, he was arrested and charged with possession of cocaine in Texas. He was able to rehab and become clean of his problem with the drug. The Texas Medical Board revoked his license, but then monitored his recovery and compliance and allowed him to practice again.

Dr. White had no violations for nine years following his arrest. He is currently practicing medicine in Washington state and is an enrolled Medicare supplier.

The Administrative Law Judge (ALJ) sustained the denial, finding that CMS had a legitimate basis because Dr. White was convicted of a felony offense. The Board affirmed the ALJ’s decision and Dr. White appealed that decision to the USDC.

OVERVIEW OF MEDICARE PROGRAM

The Medicare program provides health insurance benefits to people sixty-five years old or older and to eligible disabled persons. Suppliers, such as Dr. White, must be enrolled in the Medicare program and be granted billing privileges to be eligible to receive payment for care and services rendered to a Medicare-eligible beneficiary.

DENIALS

CMS may deny a supplier’s enrollment for any reason stated in federal statutes that allow that CMS may deny a provider’s or supplier’s enrollment in the Medicare program for the some of the following reasons: Felonies such as insurance fraud and similar crimes.

REVOCATIONS

The ALJ found CMS had a legitimate basis because White was convicted of a felony offense that CMS determined to be detrimental to the bests interest of the Medicare program and its beneficiaries.

Dr. White’s presented equitable arguments to the ALJ that

1 he self-reported and was not practicing;
2 using his self-report to deny would encourage other physicians to not self-report,
3 he has fully complied with the terms of the modified license, and
eventually he was allowed to practice medicine without limitations.

The Board affirmed the ALJ’s decision, upholding CMS’ denial of Dr. White’s Medicare enrollment and rejected Dr. White’s argument that the timing of the revocation action by CMS was clearly retaliatory and intended to apply pressure on Dr. White for additional monetary penalties.

ANALYSIS

The USDC found CMS’ decisions to deny Dr. White enrollment in Medicare and revoke his privileges, and the subsequent Board’s affirmations were arbitrary and capricious and not supported substantial evidence.

CMS did not have a legitimate reason to deny enrollment or revoke because the record does not support CMS’ assertions that Dr. White’s 2010 conviction for simple possession of a small amount of cocaine was detrimental to the best interest of the Medicare program and its beneficiaries. The USDC understood the deference it owed to administrative agencies as they adjudicate numerous complex cases before them. Yet, a court may not simply act as a rubber stamp for agency decisions.

Because CMS failed to provide a reasonable basis for denying Dr. White his enrollment in Medicare or revoking his Medicare privileges, the decision of the Secretary is reversed.

ZALMA OPINION

A doctor should never get involved or addicted to illegal substances like Cocaine. The Fact that a doctor self reports his involvement with the drug, was rehabilitated, clean for nine years, and practices medicine legally, does not pose a danger to Medicare as do those doctors who are arrested every year for fraud. The decision of Becerra, the ALJ and the Board was clearly retaliatory and abusive and the USDC had no choice but to reverse the Board and let the doctor continue to practice medicine and charge Medicare for his services. Overreach by the administrative agency was stopped by the court.