2003.04.22 CR1033 Alfredo Robert, vs. The Inspector General.

Petitioner does dispute that these two aggravating factors are present in this case.

To decide whether the length of the exclusion imposed by the I.G. is unreasonable, I must consider evidence submitted by the parties pertaining to the aggravating and mitigating factors contained in 42 C.F.R. § 1001.102, to determine whether the I.G.'s decision is within a reasonable range. I conclude that the I.G. has established the existence of two aggravating factors, and Petitioner has failed to point to even one mitigating factor. In fact, the evidence before me points to the seriousness of Petitioner's deliberate conduct over a 12 month period of time, impairing the fiscal soundness of federal health care programs and the public confidence in those programs. This is clear evidence of Petitioner's untrustworthiness. None of the factors relied upon by Petitioner are contemplated by the regulations as grounds for reducing the length of the exclusion. The fact that he complied with court and administrative sanctions arising from his criminal conviction does nothing to diminish the exclusion period. I note, however, that although Petitioner argues that he has no prior criminal record, the investigative report prepared by the Medicaid Fraud Control Unit of the Office of the Attorney General, stated as follows:

Petitioner's additional argument, that the I.G. miscalculated his exclusion period pursuant to section 1128(a)(3) of the Act, is misplaced. I note that Petitioner was excluded pursuant to section 1128(a)(1) of the Act. Additionally, even if Petitioner had no prior conviction, 42 C.F.R § 1001.102(b) permits the I.G. to extend the term of an exclusion under section 1128(a) of the Act beyond the mandatory five-year minimum.

For the reasons stated above, and in light of my consideration of the current statutory and regulatory criteria, I find that the 10-year exclusion imposed by the I.G. is within a reasonable range of possible exclusion periods given the circumstances of Petitioner's case, in which two aggravating factors are present and no mitigating factors have been established. The 10-year exclusion is a legitimate remedy consistent with the purpose of section 1128 of the Act. That purpose is to protect federally-funded health care programs, and their beneficiaries and recipients, from untrustworthy individuals and entities. See Joann Fletcher Cash, DAB No. 1725 (2000).

CONCLUSION

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs, for a period of at least five years, because he was convicted of a criminal offense related to the delivery of an item or service under Medicaid. The I.G. is also justified in lengthening the period of exclusion, due to the existence of aggravating factors. I therefore sustain Petitioner's 10-year exclusion.

CASE \| DECISION \| JUDGE
Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division
IN THE CASE OF
SUBJECT: Alfredo Robert, Petitioner,	DATE: April 22, 2003
- v -
The Inspector General	Docket No. C-02-814 Decision No. CR1033
DECISION	...TO TOP
DECISION This case is before me pursuant to a request for hearing filed on August 29, 2002, by Alfredo Robert, Petitioner. By letter dated June 28, 2002, the Inspector General (I.G.) notified Petitioner, Alfredo Robert, that he was being excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) for a period of 10 years. The I.G. informed Petitioner that his exclusion was imposed under section 1128(a)(1) of the Act, due to his conviction of a criminal offense (as defined in section 1128(i) of the Act) related to the delivery of an item or service under the Florida Medicaid program. Petitioner was also informed that his exclusion was for a period greater than the minimum period of five years made mandatory by section 1128(c)(3)(B) of the Act, because of the following circumstances: 1. Petitioner's criminal acts resulted in a financial loss to a government program of $5,000 or more. 2. Petitioner's criminal acts were committed over a one-year period. On November 13, 2002, I convened a telephone prehearing conference during which the parties agreed that an in-person hearing was not required and that the issues could be decided by summary judgment. Consequently, I issued an Order establishing briefing deadlines. Pursuant to that Order, on January 30, 2003, the I.G. timely filed a brief, accompanied by three proposed exhibits; and then filed a supplemental exhibit on March 26, 2003. Petitioner did not object to these exhibits and they are entered into the record as I.G. Exhibits (I.G. Exs.) 1-4. Petitioner submitted an undated brief in support of his contentions, without proposed exhibits. On February 19, 2003, the I.G. filed a reply brief, without additional documentary evidence. Petitioner did not file a reply brief. It is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in the Medicare, Medicaid, and all federal health care programs, for a period of 10 years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Florida Medicaid program. Additionally, I find that the 10-year exclusion imposed on Petitioner is not unreasonable. ISSUES 1. Whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act. 2. Whether the 10-year exclusion imposed by the I.G. upon Petitioner is unreasonable. APPLICABLE LAW AND REGULATIONS Section 1128(a)(1) of the Act authorizes the Secretary of the Health and Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual convicted of a criminal offense relating to the delivery of a health care item or service. An exclusion under section 1128(a)(1) of the Act must be for a minimum period of five years. Section 1128(c)(3)(B) of the Act. Aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. § 1001.102(b). If aggravating factors justify an exclusion longer than five years, mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c). Pursuant to 42 C.F.R. § 1001.2007, an individual or entity excluded under section 1128(a)(1) of the Act may file a request for a hearing before an administrative law judge. FINDINGS AND DISCUSSION The findings of fact and conclusions of law noted below, in bold face, are followed by a discussion of each finding. 1. Petitioner's conviction of a criminal offense related to the delivery of an item or service under the Medicaid program justifies his exclusion by the I.G. from participation in the Medicare, Medicaid, and all other federal health care programs. Petitioner was the administrator and one of the owners of South Bay Medical Center, a Medicaid provider clinic located in South Bay, Florida. I.G. Ex. 1, at 9. On August 10, 2000, the State's Attorney for the Fifteenth Judicial Circuit of Palm Beach County, Florida, filed an Information against Petitioner and others, charging that on or between January 1, 1999 and December 31, 2000, they knowingly made, caused to be made, or aided and abetted in the making of false statements or false representations of a material fact, by commission or omission, in a claim submitted to the Florida Medicaid program or its fiscal agent for payment, contrary to Florida Statute 409.920(2)a. I.G. Ex. 2. On October 11, 2000, Petitioner pled guilty to Medicaid fraud. I.G. Ex. 3. Petitioner concedes that his criminal conviction is related to the delivery of an item or service under the Medicaid program. Petitioner's Brief at 2. I find, therefore, that Petitioner was convicted of a criminal offense related to the delivery of an item or service under a State health care program within the meaning of section 1128(a)(1) of the Act. Thus, the I.G. had a basis upon which to exclude him from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act. 2. Petitioners' exclusion for a period of 10 years is not unreasonable. An exclusion under section 1128(a)(1) of the Act must be for a minimum mandatory period of five years, as set forth in section 1128(c)(3)(B) of the Act: Subject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be not less than five years . . . . When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. § 1001.2007(a)(2). Aggravating factors that justify lengthening the exclusion period may be taken into account, but the five-year term will not be shortened. Petitioner was convicted of Medicaid fraud. He does not dispute his conviction of a criminal offense related to the delivery of an item or service under the Medicaid program. As a result of Petitioner's program-related conviction, the I.G. was required to exclude him pursuant to section 1128(a)(1) of the Act, for at least five years. The I.G. has discretion to impose an exclusion of more than five years in appropriate circumstances. In Petitioner's case, the I.G. added five years to the statutory five-year minimum period. The aggravating factors that the I.G. may consider as a basis for lengthening a period of exclusion are found at 42 C.F.R. § 1001.102(b). In the case at hand, the I.G. alleges the existence of two aggravating factors to justify the 10-year exclusion period imposed against Petitioner: 1. Petitioner committed criminal acts that resulted in a financial loss to a government program of $5,000 or more; and 2. The acts that resulted in the conviction, or similar acts, were committed over a period of one year. Petitioner does dispute that these two aggravating factors are present in this case. 42 C.F.R. § 1001.102(c) provides that if any of the aggravating factors set forth in paragraph (b) of that section justifies an exclusion longer than five years, mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. This regulation states that *only* the following factors may be considered mitigating: (1) The individual or entity was convicted of three 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 $1,500; (2) The 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) The individual's or entity's cooperation with federal or State officials resulted in - (i) Others being convicted or excluded from Medicare, Medicaid, and all other federal health care programs, (ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or (iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter. 42 C.F.R. § 1001.102(c). Petitioner contends that I should consider the following factors in my decision as to whether the 10-year exclusion is unreasonable: •He has made full restitution of all the money he fraudulently obtained from the Medicaid program, and, when notified of his exclusion by the I.G., he immediately resigned from the health care related employment he held after his conviction.] •He has no prior convictions. •The I.G. miscalculated his period of exclusion. The minimum mandatory exclusion is five years, and can be increased to 10 years only when there has been a prior conviction. 42 U.S.C. § 1320-7(c)(3)(G). •There are reasonable assurances that the fraudulent conduct that led to his exclusion will not recur after the end of a five year exclusion. To decide whether the length of the exclusion imposed by the I.G. is unreasonable, I must consider evidence submitted by the parties pertaining to the aggravating and mitigating factors contained in 42 C.F.R. § 1001.102, to determine whether the I.G.'s decision is within a reasonable range. I conclude that the I.G. has established the existence of two aggravating factors, and Petitioner has failed to point to even one mitigating factor. In fact, the evidence before me points to the seriousness of Petitioner's deliberate conduct over a 12 month period of time, impairing the fiscal soundness of federal health care programs and the public confidence in those programs. This is clear evidence of Petitioner's untrustworthiness. None of the factors relied upon by Petitioner are contemplated by the regulations as grounds for reducing the length of the exclusion. The fact that he complied with court and administrative sanctions arising from his criminal conviction does nothing to diminish the exclusion period. I note, however, that although Petitioner argues that he has no prior criminal record, the investigative report prepared by the Medicaid Fraud Control Unit of the Office of the Attorney General, stated as follows: National Criminal Information Center and Florida Information center records indicated Alfredo Robert with a criminal history; 1986 DEA Key Largo indictment for Marijuana Possession and Conspiracy to Import; 1993 arrest by City of Miami PD for aggravated Assault and Battery; 1994 sentenced to 42 months at a federal facility for Conspiracy to Import Marijuana; 1998 arrest by Royal Palm Beach PD for DUI. I.G. Ex. 1, at 5. Petitioner's additional argument, that the I.G. miscalculated his exclusion period pursuant to section 1128(a)(3) of the Act, is misplaced. I note that Petitioner was excluded pursuant to section 1128(a)(1) of the Act. Additionally, even if Petitioner had no prior conviction, 42 C.F.R § 1001.102(b) permits the I.G. to extend the term of an exclusion under section 1128(a) of the Act beyond the mandatory five-year minimum. For the reasons stated above, and in light of my consideration of the current statutory and regulatory criteria, I find that the 10-year exclusion imposed by the I.G. is within a reasonable range of possible exclusion periods given the circumstances of Petitioner's case, in which two aggravating factors are present and no mitigating factors have been established. The 10-year exclusion is a legitimate remedy consistent with the purpose of section 1128 of the Act. That purpose is to protect federally-funded health care programs, and their beneficiaries and recipients, from untrustworthy individuals and entities. See Joann Fletcher Cash, DAB No. 1725 (2000). CONCLUSION Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs, for a period of at least five years, because he was convicted of a criminal offense related to the delivery of an item or service under Medicaid. The I.G. is also justified in lengthening the period of exclusion, due to the existence of aggravating factors. I therefore sustain Petitioner's 10-year exclusion.
JUDGE	...TO TOP
Jose A. Anglada Administrative Law Judge
CASE \| DECISION \| JUDGE