SUBJECT:

Jeremy Robinson,

Petitioner,

The Inspector General

I decide to modify the exclusion that the Inspector General (I.G.) imposed against Petitioner, Jeremy Robinson, from a period of 15 years to a period of 10 years.

I. Background

On September 30, 2002, the I.G. notified Petitioner that he was being excluded from participating in federally-funded programs, including Medicare, for a period of 15 years. The I.G. advised Petitioner that he was being excluded pursuant to the authority conferred on the I.G. by section 1128(a)(3) of the Social Security Act (Act). This section of the Act mandates an exclusion, for at least five years, of any individual or entity who is convicted under State or federal law of an offense occurring after August 21, 1996:

[I]n 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.

Act, section 1128(a)(3).

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a pre-hearing conference at which the parties agreed that the case could be heard and decided based on their written submissions. The I.G. filed a brief and two proposed exhibits (I.G. Ex. 1 and I.G. Ex. 2). Petitioner also filed a brief and two exhibits (P. Ex. 1 and P. Ex. 2). The I.G. filed a reply brief. Neither party objected to my receiving into evidence the other party's proposed exhibits. Consequently, I receive into evidence I.G. Ex. 1 and I.G. Ex. 2, and P. Ex. 1 and P. Ex. 2.

II. Issue, findings of fact, and conclusions of law

A. Issue

The only issue in this case is whether the 15-year exclusion imposed by the I.G. against Petitioner is reasonable. Petitioner concedes that he was convicted of a criminal offense that is covered by section 1128(a)(3) of the Act. Petitioner acknowledges that the Act mandates that an individual who is convicted of an offense that is covered by section 1128(a)(3) must be excluded for a minimum period of five years. Act, section 1128(c)(3)(B). Petitioner contends that an exclusion of more than five years is unreasonable given the facts of this case.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separately numbered heading. I discuss each Finding in detail.

1. The I.G. established the presence of three aggravating factors. Petitioner failed to establish the presence of any mitigating factors.

An exclusion imposed pursuant to one of the subsections of section 1128 of the Act is remedial and not punitive. The purpose of such an exclusion is not to punish the excluded individual, but to protect the Medicare program and other federally-funded programs from an individual who is untrustworthy to deal with federal monies or to provide care to beneficiaries and recipients of federal programs.

The Secretary of Health and Human Services has published regulations which establish criteria for deciding the reasonable length of an exclusion imposed pursuant to one of the subsections of section 1128 of the Act. These regulations are set forth at 42 C.F.R. Part 1001. The regulation which establishes criteria for deciding the length of an exclusion imposed, pursuant to section 1128(a)(3) of the Act, is 42 C.F.R. § 1001.102. The regulation provides that an exclusion of more than five years may be reasonable if one or more factors, described as an aggravating factor, is present and the factor or factors are not offset by one or more mitigating factors. 42 C.F.R. §§ 1001.102(b)(1) - (9), 1001.102(c)(1) - (3).

The regulatory aggravating and mitigating factors function as rules of evidence for deciding the length of exclusions. Evidence which relates to one or more aggravating or mitigating factors may be considered as being relevant to an excluded individual's trustworthiness to provide care, and as a basis for deciding whether an exclusion of more than five years is reasonable. Evidence which does not relate to one or more aggravating or mitigating factors is irrelevant, and may not be considered as a basis for lengthening or shortening an exclusion.

In this case the I.G. alleged, and Petitioner does not dispute, that there are three aggravating factors present. These are as follows:

• The acts resulting in Petitioner's conviction, or similar acts, caused a financial loss to a government program or to one or more entities of $5,000 or more. 42 C.F.R. § 1001.102(b)(1);

• The acts that resulted in Petitioner's conviction, or similar acts, were committed over a period of more than one year. 42 C.F.R. § 1001.102(b)(2); and

• Petitioner's sentence for his conviction included a period of incarceration. 42 C.F.R. § 1001.102(b)(5).

Below, I discuss the evidence which relates to these aggravating factors and how it impacts the length of Petitioner's exclusion.

Petitioner did not establish the presence of any mitigating factors. Petitioner argues that the conduct which resulted in his conviction "was a marked departure from an otherwise estimable life." Petitioner's brief at 3; see P. Ex. 1. In P. Ex. 1, Petitioner offered as supporting evidence numerous statements from other individuals attesting to the good that Petitioner did for them in years past. But, Petitioner's assertion and his supporting evidence is not relevant because they do not fit within any of the mitigating factors that are set forth at 42 C.F.R. § 1001.102(c).

2. Evidence that relates to aggravating factors does not establish that a 15-year exclusion is reasonable. The evidence establishes that a 10-year exclusion is reasonable.

The regulations do not establish any formula for deciding the length of an exclusion. ⁽¹⁾ There is nothing in either the factors themselves, or in any other part of the regulations, that states or suggests that an exclusion of a particular length is justified based on the presence of certain factors, or based on the number of factors that are established in a case.

The factors function as rules of evidence in the sense that they govern what is relevant to deciding the reasonable length of an exclusion, but they do not establish any formula for deciding the length of an exclusion. In order to decide what is reasonable in any particular case, one must look closely at the evidence that pertains to each aggravating or mitigating factor and decide what that evidence says about the trustworthiness of an excluded individual or entity.

Indeed, it is possible that there might be more than one aggravating factor established in a case, but that the evidence relating to any one of or all of these factors may not show that the excluded individual is so untrustworthy as to merit an exclusion that significantly exceeds the five-year minimum exclusion period. Alternately, there may be as few as a single aggravating factor in a case, but the evidence relating to that factor may show the excluded individual to be so untrustworthy as to necessitate a very lengthy exclusion.

I do not consider it to be my function in deciding what is reasonable, to second guess or merely to substitute my judgment for that of the I.G. Although the hearing in a case involving section 1128 of the Act is de novo, I recognize that some deference must be shown to the I.G.'s exercise of judgment and experience in deciding what is a reasonable exclusion. However, my function also is not merely to rubber stamp the I.G.'s determination. Where an exclusion that is imposed by the I.G. falls outside of a reasonable range of exclusions that might be imposed, given the evidence that relates to aggravating or mitigating factors, then I must modify the exclusion to put that exclusion within a reasonable range.

I premise my analysis of the evidence in this case, in light of the regulatory factors, on the fact that an exclusion of 15 years is a very lengthy exclusion. There is not much practical difference between an exclusion of that length and a permanent exclusion from participation in federally-funded programs. An exclusion of 15 years should, therefore, be imposed only in the case of an individual who is irredeemably untrustworthy.

Does the evidence in this case establish Petitioner to be irredeemably untrustworthy? It certainly shows that Petitioner is a highly untrustworthy individual who committed a serious offense. Petitioner is a social worker who operated a drug treatment program in New York City from about 1995 until about April 1998. I.G. Ex. 2. This program - which Petitioner called the "Robinson Institute" - provided alcohol and drug treatment services to individuals. Id.

However, during this same period, Petitioner submitted many false claims to insurance companies for alleged services that he did not, in fact, provide and which he knew he did not provide. I.G. Ex. 2, at 2. The false claims generated by Petitioner included claims to private insurers in which Petitioner sought reimbursement for attendance by individuals at group therapy sessions. In fact, in many instances the individuals for whom Petitioner submitted claims did not attend the sessions and Petitioner knew that. Id.

Petitioner's fraud was extensive and it was costly to insurers. He was sentenced to pay restitution to two health care insurers totaling $205,000. I.G. Ex. 1, at 5. The seriousness of his crimes also is demonstrated by the incarceration that was imposed on him. He was sentenced to a year and a day of imprisonment, plus two years of supervised release. Id. at 2, 3.

I have no doubt that the evidence which I have described above, all of which relates to aggravating factors that I identify at Finding 1 of this decision, establishes a need for a lengthy exclusion in this case. It shows Petitioner to have engaged in a conscious criminal scheme for a period of about three years. However, I do not find that Petitioner's conduct is so egregious, and his level of untrustworthiness so high, that it merits an exclusion which is tantamount to a permanent exclusion.

The 15-year exclusion that the I.G. imposed in this case is significantly greater than that which the I.G. imposed in other cases where evidence relating to aggravating factors was substantially more serious than that which is at issue here. In William D. Neese, M.D., DAB CR467 (1997), the I.G. justified a 10-year exclusion by arguing that the excluded individual had defrauded Medicare of $600,000 over a period of about two years. The petitioner in that case was sentenced to serve 18 months' incarceration for his crimes. I cannot reconcile the exclusion that was imposed in Neese with the much lengthier exclusion that the I.G. imposed here given the substantially greater aggravation present in Neese than is present in this case.

Of course, the reasonable length of exclusions should not be decided based only on comparison of one case with another. Each exclusion should stand or fall on its merits and be based on the trustworthiness of the excluded individual. But, likewise, one cannot simply ignore what has happened in other instances in deciding whether an exclusion falls within a reasonable range. Otherwise, the concept of "reasonable range" becomes infinitely elastic and yields arbitrary results.

For that reason, I conclude that Petitioner's conduct, as demonstrated by evidence relating to the three aggravating factors that are present in this case, merits an exclusion of 10 years. Ten years is a very lengthy exclusion, but it is reasonable given the evidence of this case.

Steven T. Kessel

Administrative Law Judge

1. There are exceptions, but they do not apply in this case. For example, in the case of an exclusion that is based on a conviction which occurs on or after August 5, 1997, the length of the exclusion shall be for at least 10 years if the conviction, on which the exclusion is based, constitutes a second conviction of an offense for which an exclusion may be imposed. 42 C.F.R. § 1001.102(d)(1).