SUBJECT:

Arthur C.Bieganowski, M.D.,

Petitioner,

The Inspector General

DECISION

Pursuant to 42 C.F.R. § 1005.2(e)(4), I dismiss Petitioner's March 23, 2002 request for hearing in this case.

I. Background

Petitioner, Arthur C. Bieganowski, M.D., (Petitioner) a physician licensed to practice in the State of Texas, devised and executed an elaborate and long-running scheme to defraud private insurance companies, the United States Department of Labor, the United States Department of the Army, the Texas Workers Compensation Commission, and others, and then to hide his ill-gotten gains. In the process, he not only falsified treatment records and submitted false claims, he also provided unnecessary treatments that were dangerous, painful and obsolete. See Inspector General (I.G.) exhibits 1, 2. He used threats and intimidation to compel patients to accept these treatments. Id. He was eventually caught, convicted on ten felony counts, sentenced to 14 years in prison, ordered to pay a staggering $23,000,000 in restitution and to forfeit the net proceeds from a real estate sale plus an additional $11,000,000. Because of his conviction, the I.G. excluded him from participating in Medicare, Medicaid, and other federally funded health care programs for a period of 50 years, pursuant to sections 1128(a)(1) and 1128(a)(3) of the Social Security Act (Act).

By letter dated February 28, 2002, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of 50 years. The I.G. advised Petitioner that he was being excluded pursuant to §§ 1128(a)(1) and 1128(a)(3) of the Act because of his conviction in the United States District Court for the Western District of Texas of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service, or any act or omission in a health care program operated or financed, in whole or in part, by any Federal, State, or local government agency. By letter dated March 23, 2002, Petitioner requested a hearing and the case was assigned to me.

On May 28, 2002, I held a prehearing conference by telephone at which Petitioner acknowledged that he had been convicted of a crime related to the delivery of a health care item or service. He argued only that these proceedings were premature inasmuch as an appeal of his criminal conviction was pending. I advised him then, and in my subsequent order, that, by statute, I was precluded from considering his pending federal court appeal. Act §1128(I). I also determined that no material facts were in dispute so the matter could be heard based on an exchange of written submissions in lieu of an in-person hearing. I set out a briefing schedule. See Order (June 3, 2002).

In accordance with my order, the I.G. timely filed her motion and brief. Petitioner, however, did not file his response, which was due August 8, 2002. On August 22, 2002, the I.G. asked that Petitioner's appeal be dismissed for abandonment pursuant to 42 C.F.R. § 1005.2(e)(3). On September 11, 2002, I issued an Order to Show Cause directing Petitioner to show cause by September 27, 2002, why his case should not be dismissed for abandonment. In a letter dated September 20, 2002, Petitioner noted that his appeal was scheduled to be heard by the Court of Appeals for the Fifth Circuit on September 30, and suggested that I delay my decision for 60 days. Based on this response, and recognizing that Petitioner is a pro se litigant, I determined that he had not intended to abandon his appeal. In a letter dated October 17, 2002, I directed Petitioner to respond to the I.G.'s brief by November 4, 2002, or I would decide the case on the record before me. Petitioner did not respond. In an order dated March 18, 2003, I directed Petitioner to show cause why I should not close the record and proceed to decision. In a letter dated March 24, 2003, Petitioner reasserted his innocence, claimed he had "no means to protest," and directed me to decide the case.

II. Discussion

A. Petitioner's hearing request must be dismissed because it fails to raise any issue that may properly be addressed at hearing.

I first consider whether I have the authority to hear and decide this case. The I.G. has asked me to dismiss for abandonment. Although Petitioner has not complied with my orders, in light of his limited responses, I am not able to conclude that he has abandoned his request for a hearing.

Section 1128(a)(1) of the Act requires that the Secretary of Health and Human Services (Secretary) exclude an individual who has been convicted under federal or State law of a criminal offense related to the delivery of an item or service under Medicare or a State health care program. ⁽¹⁾ 42 C.F.R. § 1001.101. Section 1128(a)(3) requires the Secretary to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act):

[a]ny individual or entity that has been convicted for an offense which occurred after the date of the enactment of the Health Insurance Portability and Accountability Act of 1996 ⁽²⁾, under Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

Individuals excluded under either of these sections must be excluded for a period of not less than five years. Section 1128(c)(3)(B) of the Act.

An individual excluded under one of these provisions may request a hearing before an administrative law judge (ALJ); however the issues he may appeal are limited to whether the I.G. has a basis for imposing the exclusion, and whether the length of the exclusion falls within a reasonable range. 42 C.F.R. §1001.2007(a). The statute explicitly precludes my considering the pendency of Petitioner's criminal appeal:

[A]n individual . . . is considered to have been convicted of a criminal offense . . . when a judgment has been entered . . . by a . . . court, regardless of whether there is an appeal pending . . . .

Act § 1128(I).

The regulations governing these procedures mandate that the ALJ "will dismiss a hearing request" that "fails to raise any issue which may properly be addressed in a hearing." 42 C.F.R. § 1005.2(e)(4). Here, Petitioner's hearing request raises only one issue:

My objection to this entire proceeding and my exclusion from participation from all Federal health care programs is that I have not exhausted my appeals or my right to file a 2255 action. At this time my conviction is on hold and essentially I am in prison because I was denied bail.

Request for Hearing. Petitioner concedes that he was convicted of crimes that mandate exclusion, but suggests that his rights "as an M.D. participant" in federal health care programs should not be denied until he is "finally convicted without appeal." Request for Hearing.

I recognize that Petitioner is appearing pro se, and I am mindful of the Board's reluctance, in other contexts, to dismiss even an undeniably inadequate hearing request. See Carlton at the Lake, DAB No. 1829 (2002), Alden Nursing Center - Morrow, DAB No. 1825 (2002) (ALJs are directed to "exercise discretion" to accept as "adequate to preserve a right to hearing" hearing requests that fail to meet the content requirements of the regulations). For these reasons, I specifically and repeatedly advised Petitioner that the issue he raised could not properly be addressed in these proceedings. See Order (June 3, 2002); McFadden-Elmore letter to Petitioner (Oct. 17, 2002). Petitioner seems to concede that he had no other issues to raise. See P. Letter dated September 5, 2002 ("I do agree to my suspension of privileges, if indeed they can be re-instated if my conviction is vacated."); P. Letter dated September 20, 2002 ("I still feel the same."); P. Letter dated March 24, 2003 ("I accept your verdict and will await my re-instatement based on my [federal court] appeal.")

I am therefore convinced that the sole issue Petitioner means to raise in these proceedings is one that I am not authorized to hear, and the hearing request must be dismissed. ⁽³⁾

III. Conclusion

I dismiss Petitioner's request for hearing because it raises no issue that may properly be addressed at hearing. 42 C.F.R. § 1005.2(e)(4).

Carolyn Cozad Hughes

Administrative Law Judge

1. The term "State health care program" includes a State's Medicaid program. Section 1128(h)(1) of the Act; 42 U.S.C. § 1320a-7(h)(1).

2. The Health Insurance Portability and Accountability Act (HIPAA) of 1996 was enacted on August 21, 1996.

3. Moreover, in light of the enormity of his crimes, and the substantial aggravating circumstances presented here, the I.G. would have no difficulty establishing that the 50 year exclusion falls within a reasonable range. 42 C.F.R. § 1001.102. Joann Fletcher Cash, DAB No. 1725 at 7 (2000), citing 57 Fed. Reg. 3298, 3321 (1992). The crimes that resulted in Petitioner's conviction occurred over a period of nearly twelve years (42 C.F.R. § 1001.102(b)(2)); his criminal sentence includes a lengthy period of incarceration (42 C.F.R. § 1001.102(b)(5); his actions caused at least tens of millions of dollars in losses (42 C.F.R. § 1001.102(b)(1); and he has presented no mitigating factors. 42 C.F.R. § 1001(b).