April 27, 2009
IN THE MATTER OF CLAXTON L. CROWDER, M.D., PETITIONER-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 31, 2009
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 circumvent the presentation and challenge of evidence for adjudication during the appeal process afforded to providers prior to disqualification.
Again, appellant did not appeal from this denial.
On February 6, 2008, appellant submitted a third request for reinstatement as a Medicaid provider. This request stressed appellant's willingness to work in a provider institution, not as an independent provider, so that he could be relieved of direct Medicaid billing duties and work in a supervised environment. This request again was not supported by any certification from appellant.
The DMAHS denied this request by letter dated April 7, 2008, which stated in pertinent part:
Your letter does not present any relevant information that has not already been considered by the Director of [DMAHS] prior to his September 24, 2007 response... to a petition for reinstatement that was submitted by the last of [appellant's] previous attorneys. Your argument that [appellant] now would be willing to accept a conditional reinstatement does not alter the applicability of the Director's analysis in declining to reinstate [appellant].
Appellant filed this appeal from the denial of his third request for reinstatement which presents the following arguments:
A. DMAHS DID NOT COMPLY WITH ITS OWN REGULATIONS IN DEBARRING APPELLANT BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE EIGHT-YEAR DEBARMENT.
B. DMAHS HAD INSUFFICIENT EVIDENCE TO SUBSTANTIATE GOOD CAUSE FOR DEBARMENT.
C. EVEN IF GOOD CAUSE DID EXIST, THERE WAS NO REQUIREMENT THAT APPELLANT BE DEBARRED AND, BASED ON THE CIRCUMSTANCES IT WAS AN ABUSE OF DISCRETION THAT HE WAS DEBARRED.
D. DMAHS ENGAGED IN FURTHER VIOLATIONS OF ITS OWN REGULATIONS, AND THUS IN ARBITRARY, CAPRICIOUS AND UNREASONABLE CONDUCT, BY NOT AFFORDING APPELLANT DUE PROCESS.
E. DMAHS ALSO ARBITRARILY AND CAPRICIOUSLY DENIED APPELLANT'S REQUESTS FOR REINSTATEMENT.
Appellant's arguments are clearly without merit and do not warrant extended discussion. R. 2:11-3(e)(1)(E). We only note that the essential premise of appellant's arguments is that when he affiliated himself with Andujar's medical practice, he was ignorant of the fact that Andujar had been found guilty by a jury of multiple federal criminal offenses, was suspended from acting as a Medicaid provider, and had his license to practice medicine revoked, effective one week after appellant commenced work in the practice. Appellant's arguments also assume that he remained ignorant of Andujar's legal problems while he practiced in his office for five months until a spot-check by DMAHS on November 15, 2004 alerted appellant to the unauthorized Medicaid practice in Andujar's office, and that the only reason appellant is suspended from the Medicaid program is that he failed to file a timely request for a hearing when DMAHS notified him that it planned to suspend him.
However, appellant did not submit a certification in support of any of his three requests for reinstatement attesting to and undertaking to explain how he could have been ignorant of Andujar's various legal problems and of his alleged fraudulent Medicaid billing practice in appellant's name. Such a certification is required by N.J.A.C. 10:49-11.1(h)(1), which stated that:
[A] debarment may be removed or the period thereof may be reduced at the discretion of the debarring agency upon the submission of a good faith application under oath, supported by documentary evidence, setting forth substantial and appropriate grounds for the granting of relief, such as newly discovered material evidence, reversal of a conviction or judgment, actual change of ownership, management or control, or the elimination of the causes for which the debarment was imposed. [Emphasis added.]
In the absence of the kind of certification and supporting documentation required by N.J.A.C. 10:49-11.1(h)(1), the record fails to indicate where appellant was practicing medicine before he became affiliated with Andujar, except for a curriculum vitae which states he was employed as a "staff physician" at the Vineland Developmental Center from February 2003 to August 2004, and how he could have been unaware of Andujar's legal problems.*fn2
The record also fails to indicate whether Andujar continued to practice in his medical office after June 11, 2004 even though the Board of Medical Examiners had revoked his license, the identity of the other persons who worked in Andujar's office in addition to appellant, or how that office was administered, including who did the Medicaid billing, during the period appellant worked there.*fn3
We of course do not know whether the DMAHS would have been more receptive to appellant's requests for reinstatement as a Medicaid provider if he had provided a plausible innocent explanation of his role in the operation of Andujar's medical practice in the form required by N.J.A.C. 10:49-11.1(h)(1) because such an explanation was never forthcoming. Based on the limited factual material appellant submitted in support of his third request for reinstatement as a Medicaid provider, DMAHS did not abuse its discretion in denying that request.