CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Brij Mittal, M.D.,

Petitioner,

DATE: March 10, 2003
                                          
             - v -

 

The Inspectors General

 

Docket No.C-02-756
Decision No. CR1012
DECISION
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DECISION

Brij Mittal, M.D., (Petitioner), is excluded from participation in Medicare, Medicaid, and all other Federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1), effective July 19, 2002, based upon his conviction for program related crimes. There is a proper basis for exclusion. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)). Further, extension of the minimum period of exclusion by five years for a total period of ten years, is not unreasonable given the presence of three aggravating factors and no mitigating factors.

PROCEDURAL HISTORY

Petitioner was notified of his exclusion by letter dated June 28, 2002. The Inspector General (I.G.) cited section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)) as the basis for Petitioner's exclusion. Petitioner requested a hearing to challenge the I.G.'s action by letter dated July 24, 2002. On August 14, 2002, the case was assigned to me for hearing and decision. On October 17, 2002, I conducted a telephonic prehearing conference, the substance of which is memorialized in my order of November 1, 2002. The I.G. filed its brief in support of summary disposition on November 15, 2002 (I.G. Brief), with attached exhibits 1 through 4 (I.G. Ex.). Petitioner filed his brief opposing summary disposition on December 14, 2002, with no exhibits (P. Brief). The I.G. filed a reply brief on January 9, 2003 (I.G. Reply). Petitioner made no objection to the exhibits offered by the I.G. and the offered exhibits are admitted as I.G. Exs. 1 through 4.

Petitioner asserts in his brief that he does not agree to disposition without a hearing. However, the I.G. asserts that summary judgment is appropriate in this case. I conclude, for reasons discussed hereafter, that summary judgment is appropriate in this case.

FINDINGS OF FACT

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the parties' pleadings and the exhibits admitted.

1. Petitioner was a medical doctor licensed by the State of New York and authorized to participate in the New York Medicaid program during the period 1990 through August 29, 2001. I.G. Ex. 1, at 3.

2. On April 17, 2001, Petitioner was found guilty after a jury trial in the United States District Court, Southern District of New York, of one count of conspiracy to receive unlawful Medicare kickbacks in violation of 18. U.S.C. § 371; and three counts of unlawful receipt of kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(1) (section 1128B(b)(1) of the Act) during the period 1990 to 1998. I.G. Ex. 2.

3. On June 13, 2001, Petitioner was sentenced to imprisonment of 30 months on counts 1 through 4 to run concurrently, followed by three years supervised release, and to pay an assessment of $400 and restitution of $10,000. I.G. Ex. 2, at 3-5.

4. On August 9, 2001, Petitioner signed an agreement with the New York State Board for Professional Medical Conduct surrendering his physician's license rather than have the Board proceed with disciplinary action based upon his conviction as described in Findings 2 and 3. I.G. Ex. 3.

5. By letter dated September 28, 2001, Petitioner's participation in the New York Medicaid Program was terminated effective August 29, 2001, due to the surrender of his physician's license. I.G. Ex. 4.

6. The I.G. notified Petitioner by letter dated June 28, 2002, that he was being excluded from participation in Medicare, Medicaid, and all other federal health care programs for ten years pursuant to section 1128(a)(1) of the Act, effective 20 days from the date of the letter. The I.G. advised that the action was based upon Petitioner's conviction in the United States District Court of program related criminal offenses.

7. Petitioner timely requested a hearing.

CONCLUSIONS OF LAW

    1. Summary judgment is appropriate in this case as there are no material facts in dispute.

    2. Petitioner was convicted within the meaning of section 1128(i) of the Act. 42 U.S.C. § 1320a-7(i).

    3. Petitioner was convicted of program related offenses within the meaning of section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)).

    4. Petitioner may not collaterally attack the conviction underlying the exclusion action in this administrative forum.

    5. Petitioner's conviction of program related offenses requires that he be excluded from participation in Medicare, Medicaid, and other federal health care programs for a minimum period of five years. Act, §§ 1128(a)(1) and 1128(c)(3)(B) (42 U.S.C. § 1320a-7(a)(1) and (c)(3)(B)).

    6. Extending Petitioner's period of exclusion by five years for a total of ten, is not unreasonable given the presence of three aggravating factors and no mitigating factors.

    7. A pending appeal from a criminal judgment or motion to set aside, modify, or vacate sentence are not grounds for delaying a mandatory exclusion pursuant to section 1128(a)(1) of the Act.

    8. Exclusion pursuant to section 1128(a)(1) of the Act is remedial in nature and purpose and not punitive, thus the Double Jeopardy Clause of the Fifth Amendment has no application.

    9. Petitioner's exclusion was effective July 19, 2002, 20 days after the date of the I.G. notice. 42 C.F.R. § 1001.2003.

DISCUSSION

A. APPLICABLE LAW

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (Secretary) is provided by section 1128(f) of the Act (42 U.S.C. § 1230a-7(f)). Petitioner's request for a hearing was timely filed, and I do have jurisdiction. However, the Secretary has by regulation limited my scope of review to two issues: (1) whether there is a basis for the imposition of the sanction; and, (2) whether the length of the exclusion is unreasonable. 42 C.F.R. § 1001.2007(a)(1). The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. § 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. § 1005.15(b) and (c).

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual or entity convicted of a criminal offense related to the delivery of an item or service under the Medicare and Medicaid programs. Section 1128(i) of the Act (42 U.S.C. § 1230a-7(i)) defines the term "convicted" as used in section 1128(a) as follows:

an individual or entity is considered to have been "convicted"of a criminal offense-

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Act, section 1128(i).

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(1) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. § 1001.102(b) no exclusion pursuant to 1128(a)(1) may be for less than five years but the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c).

B. ISSUES

1. Whether there is a basis for Petitioner's exclusion, specifically whether he was convicted of a program-related crime within the meaning of the Act in this case.

2. Whether a period of exclusion of ten years, the minimum five year exclusion plus five additional years based on the presence of aggravating factors, is unreasonable.

C. ANALYSIS

Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 2 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); see also, New Millennium CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000).

There is no dispute as to the material facts in this case. Petitioner does not deny that on April 17, 2001, he was found guilty after a jury trial in the United States District Court, Southern District of New York, of one count of conspiracy to receive unlawful Medicare kickbacks in violation of 18. U.S.C. § 371; and three counts of unlawful receipt of kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(1) (section 1128B(b)(1) of the Act). I.G. Ex. 2. The indictment upon which Petitioner was convicted alleged that Petitioner engaged in his unlawful conduct from 1990 through 1998 (I.G. Ex. 1) and the findings of guilt indicate no variation from the terms of the indictment (I.G. Ex. 2). Petitioner also does not dispute that he was sentenced to imprisonment of 30 months on counts 1 through 4 to run concurrently, followed by three years supervised release, and to pay an assessment of $400 and restitution of $10,000. I.G. Ex. 2, at 3-5.

Petitioner argues in his brief in opposition that he is still challenging his conviction. He filed a petition for a writ of certiorari in the United States Supreme Court following affirmance by the United States Court of Appeals for the Second Circuit. He also filed a motion in the district court to have his conviction and sentence set aside, vacated, or corrected pursuant to 28 U.S.C. § 2255. P. Brief, at 1-2. The status of Petitioner's motion in federal district court is not known, but Petitioner's petition for a writ of certiorari was denied on December 16, 2002. Mittal v. U.S., 123 S.Ct. 703 (Dec. 16, 2002).

Petitioner does not dispute the fact that on August 9, 2001, he signed an agreement with the New York State Board for Professional Medical Conduct pursuant to which he agreed to surrender his New York physician's license or contest the specification of the statement of charges, rather than have the Board proceed with disciplinary action. The specification of the charge alleged that on April 17, 2000, Petitioner was found guilty of conspiracy to receive Medicare kickbacks and receipt of kickbacks by the United States District Court. I.G. Ex. 3. Petitioner also does not dispute that by letter dated September 28, 2001, he was advised of the termination of his enrollment in the New York Medicaid Program due to the surrender of his physician's license effective August 29, 2001. I.G. Ex. 4.

The I.G. notified Petitioner by letter dated June 28, 2002, that he was being excluded from participation in Medicare, Medicaid, and all other federal health care program for ten years pursuant to section 1128(a)(1) of the Act, effective 20 days from the date of the letter. The I.G. advised that the action was based upon Petitioner's conviction in the United States District Court of program-related criminal offenses. Petitioner timely requested a hearing.

Petitioner has not presented evidence to establish the existence of a disputed issue of material fact and has failed to identify such an issue in his brief. The only issues raised by the briefing are whether Petitioner's conviction was for a program-related crime - an issue of law; whether this case should proceed to decision despite the pendency of Petitioner's appeals from his criminal conviction - an issue of law; and whether the period of exclusion imposed is unreasonable - also an issue of law, absent some facts presented by Petitioner to show the presence of a mitigating factor. Because Petitioner has failed to establish the existence of any disputed issue of material fact, summary judgment is appropriate and no hearing is necessary in this case for a full and fair disposition.

1. Petitioner was convicted of violation of the Act and there is a basis for his mandatory exclusion.

Petitioner argues that he was not convicted of a criminal offense related to the delivery of an item or service under Medicare or Medicaid, and therefore, he is not subject to exclusion pursuant to section 1128(a)(1) of the Act. His argument is based on three specific grounds: that the payments he received, the alleged kickbacks, fell within the safe harbor provisions as payments to employees; that the payments he received were not kickbacks or illegal because they were for medically necessary services and did not result in an "overcharge" to the Medicare program; and that he did not obtain the payments through misrepresentation of fact and therefore there was no fraud.

The three specific grounds alleged by Petitioner are actually collateral attacks upon the Petitioner's conviction in the Southern District of New York. This is made clear by Petitioner's argument at P. Brief, at 7, where he argues referring to his "safe harbor theory" that "there was a reasonable likelihood of an acquittal under one or more of the following theories . . . ." Petitioner's arguments related to "medical necessity" and "common law fraud" are also clearly challenges to the underlying federal conviction. See P. Brief, at 8-9. These arguments are of no avail in this forum. Petitioner does not dispute the controlling fact that he was found guilty by a jury of the felony offenses of one count of conspiracy to receive unlawful Medicare kickbacks in violation of 18. U.S.C. § 371; and three counts of unlawful receipt of kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(1) (section 1128B(b)(1) of the Social Security Act). The regulations specifically prohibit collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. § 1001.2007(d). Petitioner simply cannot challenge the facts relating to his criminal conviction in a hearing before me. See Jose Grau, M.D., DAB CR930 (2002); Valerie Baker, DAB CR815 (2001); Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter Edmondson, DAB CR163, aff'd, DAB No. 1330 (1992).

Petitioner also suggests generally, but does not discuss in detail, that the offenses of which he was convicted were not program related. This argument is clearly without merit as three of the counts on which he was convicted alleged violations of the Act, specifically section 1128(b)(1) ( 42 U.S.C. § 1320a-7b(b)(1)). It is generally accepted that conviction of a criminal offense for knowingly and willfully accepting a kickback for referring Medicare or other federally funded health care items or services is a crime that falls within the scope of section 1128(a)(1) of the act. Boris Lipovsky, M.D., DAB No. 1363 (1992); Jose Grau, M.D., DAB CR930 (2002); Efstathios Mark Varidin, D.O., CR971 (2002).

2. Pending appeals are not cause for delaying exclusion.

Petitioner argues that the I.G. action in this case is premature because Petitioner had a pending petition for a writ of certiorari and a motion to vacate, set aside, or correct sentence filed in the federal district court pursuant to 28 U.S.C. § 2255. I earlier noted that Petitioner's petition for a writ of certiorari was denied on December 16, 2002, thus ending his direct appeals of his conviction. Although the status of his 28 U.S.C. § 2255 motion is unknown, even assuming for the benefit of Petitioner that it is still pending, it is irrelevant to my decision.

Petitioner does not argue to me that he was not convicted within the meaning of section 1128(i) of the Act (42 U.S.C.§1230a-7(i)). Rather, Petitioner suggests by his argument that favorable action on his motion to vacate, set aside, or correct his sentence, may eliminate the basis for his exclusion. This argument is without merit. Section 1128(i)(1) specifically provides that one is convicted for purposes of 1128(a) when a judgment of conviction has been entered, whether or not an appeal is pending or the record has been expunged. Further, the title of section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7) reflects that it is the conviction of a criminal offense that triggers exclusion - not the sentence imposed.

3. A ten-year period of exclusion is not unreasonable given the presence of three aggravating factors.

Pursuant to section 1128(c)(3)(B) of the Act, five years is the minimum period for a mandatory exclusion pursuant to 1128(a)(1). The I.G. added five years to the minimum five years for a total of ten years, based on finding three aggravating factors under 42 C.F.R. § 1001.102(b) which provides, in relevant part, that the following factors may be considered to be aggravating and a basis for lengthening the period of exclusion:

(2) [t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; . . .(5) [t]he sentence imposed by the court included incarceration; . . . (9) the individual or entity . . . has been the subject of any other adverse action by any Federal, State or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for imposition of the exclusion.

Petitioner argues that the ten-year exclusion proposed by the I.G. "is so obviously punitive that it (a) violates the double jeopardy clause of the Fifth Amendment; (b) constitutes arbitrary, capricious and whimsical decision making." P. Brief, at 2. Petitioner's double jeopardy argument is without merit. The mandatory exclusion provisions of section 1128 of the Act (42 U.S.C. § 1320a-7) have been held to be remedial in nature and purpose, not punitive, and the Double Jeopardy Clause simply does not apply. See Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir., 1992); Erickson v. U.S. ex rel. Department of Health and Human Services, 67 F.3d 858, 864 fn. 2 (9th Cir., 1995), cf. Patel v. Thompson, 2003 WL 203468 (11th Cir., 2003) (retroactive application is not prohibited because exclusion provisions are remedial and not punitive). Petitioner cites no case in which a court has held that the mandatory exclusion provisions of the Act offend the Double Jeopardy Clause.

Petitioner's argument that the I.G.'s decision regarding the length of Petitioner's exclusion is arbitrary, capricious, and whimsical turns on two arguments: Petitioner's criminal acts did not occur over a period of more than one year; and Petitioner "has no priors" but was excluded from the New York Medicaid program based on the same acts as the federal conviction.

The I.G. found three aggravating factors: (1) Petitioner's criminal acts occurred over a period of one year or more; (2) Petitioner's sentence included a period of incarceration; (3) Petitioner was subject to other adverse action based on the same set of circumstances. Because Petitioner does not address the I.G.'s second aggravating factor, it is considered undisputed that Petitioner was sentenced to a period of incarceration and that Petitioner concedes that this is properly considered an aggravating factor.

Petitioner's challenge to the first aggravating factor is based on a misreading, at best, or a misrepresentation, at worst, of Petitioner's grand jury indictment and his conviction. Petitioner, referring only to counts two through four of the indictment, argues that his conviction was based on the receipt of remuneration listed in counts two through four on three specific dates between September 5, 1997 and February 13, 1998, a period of less than one year. However, the indictment upon which Petitioner was convicted alleged that Petitioner engaged in his unlawful conduct from 1990 through 1998 (I.G. Ex. 1) and the findings of guilt indicate no variation from the terms of the indictment (I.G. Ex. 2). The record of conviction actually reflects that the dates Petitioner relies upon are the dates on which his continuing course of criminal conduct concluded (I.G. Ex. 2). The indictment and record of conviction clearly reflect a continuing course of criminal conduct exceeding one year and Petitioner offers no evidence to the contrary. Accordingly, I conclude that this aggravating factor is also established by the record.

Petitioner's challenge to the third aggravating factor is based upon a misreading of 42 C.F.R. § 1001.102(b)(9). Petitioner argues that he did not have "priors based on similar conduct." P. Brief, at 11. Petitioner concedes that his "exclusion from the New York Medicaid program is based on the same acts as the federal conviction." Id. at 11-12. But, then argues that "it (apparently referring to the conviction) cannot be the basis for the recidivist enhancement proposed by the IJ's [sic] Brief." Id. at 12. Petitioner overlooks the fact that 42 C.F.R. § 1001.102(b)(9) has two parts stated in the alternative, i.e., the aggravating factor may be that Petitioner was convicted of other offenses in addition to those which serve as the basis for the exclusion, or, Petitioner was subject to adverse action by any federal, State, or local government based upon the same set of circumstances as provided the basis for the exclusion action. The I.G. treats Petitioner's exclusion from the New York Medicaid program (I.G. Ex. 4) and the surrender of his medical license in exchange for the State of New York dropping a formal disciplinary proceeding (I.G. Ex. 3), as the adverse action by the state which constitutes the aggravating factor under 42 C.F.R. § 1001.102(b)(9). I.G. Brief, at 11-12. Petitioner has conceded that his exclusion from the Medicaid program was based on his conviction (P. Brief, at 11-12) and clearly the New York disciplinary proceeding was also based on his conviction (I.G. Ex. 3, at 3, 5). Therefore, the aggravating factor is clearly present and Petitioner presents no authority for why it should not be considered.

Turning to the issue of whether the period of exclusion for Petitioner was "unreasonable." I note that the Departmental Appeals Board (DAB) has made clear that the role of the ALJ in cases such as this is to conduct a "de novo" review as to the facts related to the basis for the exclusion and the facts related to the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102. See Joann Fletcher Cash, DAB No. 1725 (2000), fn. 6, and cases cited therein. The regulation specifies that I must determine whether the length of exclusion imposed is "unreasonable" (42 C.F.R. § 1001.2007(a)(1)). The DAB has explained that in determining whether a period of exclusion is "unreasonable," I am to consider whether such period falls "within a reasonable range." Cash, fn. 6. The DAB cautions that whether I think the period of exclusion too long or too short is not the issue. I am not to substitute my judgment for that of the I.G. and may only change the period of exclusion in limited circumstances.

My reading of 42 C.F.R. § 1001.102 is that with a mandatory exclusion under section 1128(a) of the Act, there is an automatic exclusion of five years. Pursuant to 42 C.F.R. § 1001.102(d) one prior conviction for conduct that would cause mandatory exclusion under section 1128(a) of the Act, increases the minimum period of exclusion to 10 years and two prior convictions automatically causes permanent exclusion.

The five-year and ten-year minimum exclusions may only be extended if the I.G. can point to evidence that one or more of the aggravating factors specified at 42 C.F.R. § 1001.102(b) are present. The regulations do not limit the additional period of exclusion the I.G. may impose based upon the presence of aggravating factors. The regulations also do not specify how much of an extension is warranted by the existence of an aggravating factor. The DAB has indicated that it is not the number of aggravating factors that is determinative, rather, it is the quality of the circumstances, whether aggravating or mitigating, which is controlling in analyzing these factors. Barry D. Garfinkel, M.D., DAB No. 1572 (1996).

Section 1001.102 of 42 C.F.R. provides that when aggravating factors justify an exclusion of more than the mandatory minimum period, then the I.G. may consider any of the three specified mitigating factors if they are shown to exist. In Urquijo, the DAB suggested that the I.G.'s failure to consider a mitigating factor amounts to an abuse of discretion. The DAB also made clear in Urquijo that: if the I.G. considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal; or if the I.G. fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum.

Thus, my determination of whether or not the exclusionary period in this case is unreasonable hinges on three-points: (1) whether the period of exclusion is within the reasonable range; (2) whether the I.G. has shown the existence of aggravating factors; and, (3) whether the Petitioner has shown that there is a mitigating factor that the I.G. failed to consider.

The I.G. found three aggravating factors existed that justified an extended period of exclusion in this case. I agree that three aggravating factors are present in this case, and I find that a ten year exclusion is within the reasonable range and not unreasonable.

4. Petitioner has failed to present any evidence in support of a possible mitigating factor.

Section 1001.102(c) of 42 C.F.R. provides that only if any of the aggravating factors justify a period of exclusion longer than five years, may mitigating factors be considered as a basis for reducing the period of the exclusion to no less than five years. The following factors may be considered as mitigating and a basis for reducing the period of exclusion:

(1) [t]he individual or entity was convicted of 3 or fewer misdemeanor offenses, and the entire amount of financial loss to Medicare and the State health care programs due to the acts that resulted in the conviction, and similar acts, is less than $1500; (2) [t]he record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional, or physical condition before or during the commission of the offense that reduced the individual's culpability; or (3) [t]he individual's or entity's cooperation with Federal or State officials resulted in - (i) [o]thers being convicted or excluded from Medicare, Medicaid, or all other Federal health care programs, (ii) [a]dditional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or (iii) [t]he imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

42 C.F.R. § 1001.102(c)

Evidence which does not relate to an aggravating factor or a mitigating factor is irrelevant to determining the length of an exclusion. The burden is upon petitioners to show the presence of mitigating factors. 42 C.F.R. § 1005.15; John (Juan) Urquijo, DAB No. 1735 (2000).

Petitioner argues that he met with law enforcement officials and provided information which led to additional reports that identified program weakness which is a mitigating factor pursuant to 42 C.F.R. § 1001.102(c)(3)(ii). However, in order to survive a motion for summary judgment, Petitioner must present some evidence to show the existence of some issue of material fact. In this case Petitioner has failed to submit even his own affidavit or declaration to establish the existence of disputed fact. Accordingly, I conclude that there is no issue for hearing. Petitioner has not made a showing of the presence of a mitigating factor which would impact my conclusion that the ten-year period of exclusion is not unreasonable.

CONCLUSION

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid and all other federal health care programs for a period of ten years, effective July 19, 2002.

JUDGE
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Keith W. Sickendick
Administrative Law Judge

CASE | DECISION | JUDGE