On appeal from the Department of Human Services, Division of Medical Assistance and Health Services, No. 2813E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Grall.
Appellant Claxton L. Crowder is a licensed medical doctor. On March 1, 2004, appellant signed an agreement with another medical doctor, Eddie Andujar, to work as an "independent contractor" in Andujar's practice, effective June 4, 2004. The agreement included a provision under which appellant had an option to purchase Andujar's practice.
When appellant entered into this agreement, Andujar was suspended, effective January 21, 2004, from serving as a provider in the Medicaid program, based on a pending indictment in the United States District Court in New Jersey for tax evasion and false statements in a bankruptcy proceeding. Andujar was found guilty by a jury of twenty-three of the twenty-four counts of the indictment on February 6, 2004, and was sentenced on February 18, 2005 to an aggregate term of eighteen months imprisonment. On May 12, 2004, the Board of Medical Examiners revoked Andujar's license to practice medicine, effective June 11, 2004. After a hearing before an Administrative Law Judge, the Director of the Division of Medical Assistance and Health Services (DMAHS) issued a final decision on September 20, 2004 upholding the suspension of Andujar as a Medicaid provider.*fn1
Appellant's brief alleges that he was unaware of Andujar's criminal conviction, revocation of medical license and suspension from the Medicaid program when he entered into an agreement, which became effective on June 4, 2004, to act as an "independent contractor" in connection with Andujar's medical practice. Appellant's brief also alleges that he resigned from Andujar's practice on November 18, 2004, three days after he became aware that Andujar was suspended from participation in the Medicaid program. None of these allegations are supported by any certification from appellant or documentary evidence.
On December 13, 2005, the DMAHS notified appellant of its intention to disqualify him from further participation in the Medicaid program "for a minimum of eight years... based upon the fact that you billed the NJ Medicaid program while employed by a provider, Edward Andujar, M.D., who was excluded from participation from the Medicaid program; worked at a location not approved by DMAHS for participation in its programs; and failed to produce records to support claims for which you billed and were reimbursed." This notice stated that appellant had twenty days from receipt, which occurred on December 27, 2005, within which to request an administrative hearing, and that if appellant did not submit a timely request for a hearing, "automatic disqualification will result and this Notice will become a self-executing Order to that effect as well as the Final Agency Decision in this matter." Appellant failed to request a hearing within the prescribed time and thus his disqualification became effective on January 16, 2006. Appellant did not file an appeal from his disqualification.
On March 20, 2006, appellant submitted a request for reinstatement as a provider in the Medicaid program. No documentation was submitted in support of this request.
By letter dated March 30, 2006, the DMAHS denied this request as premature. Appellant did not appeal from this denial.
On August 16, 2007, appellant submitted a second request for reinstatement as a provider in the Medicaid program. This request was not supported by any certification from appellant. However, the letter submitted by appellant's counsel in support of this request contained several significant factual misrepresentations including that appellant had never received the December 13, 2005 notification of intention to disqualify him from participation in the Medicaid program and that he first became aware of that disqualification in April 2006.
On September 24, 2007, the DMAHS denied this request for reinstatement by letter to appellant's counsel, which stated in part:
[T]he argument for reinstatement which you present in your letter is largely based upon a statement of assertions from your client which is contradicted by the documented facts of the case. Your letter states that your client never received the Division's December 13, 2005 Notice of Intent to Disqualify and implies that your client was therefore deprived of his legal opportunity to appeal that Notice. However, that Notice was sent by Registered Mail and the Division's records confirm, by copy of the United States Post Office Domestic Return Receipt (copy enclosed), that your client did in fact receive, and sign for, that Notice. The Division did not receive any request for a hearing pursuant to that Notice and subsequently your client was disqualified from the New Jersey Medicaid program for a period of eight years. That disqualification is the Final Agency Decision in this matter.
Finally, your letter does not provide any new evidence upon which this agency would exercise the discretion permitted under N.J.A.C. 10:49-11.1(h)1 in order to reduce or eliminate your client's existing disqualification. Your client had the opportunity to present all of the allegations contained in your letter at a fair hearing and declined to do so. The provisions of N.J.A.C. 10:49-11.1(h)1 allow for the exercise of discretion based on new evidence and changed circumstances; they are not intended to serve as a means by which to ...