SUBJECT:

Anwar Yamini Sr,

Petitioner,

The Inspector General

DECISION

I find that Anwar Yamini, Sr., (Petitioner) is subject to the mandatory minimum period of exclusion of five years from participation in Medicare, Medicaid, and all other federally- funded health care programs under section 1128(a)(1) of the Social Security Act (Act). In addition, I conclude that the Inspector General's (I.G.) determination to exclude Petitioner for a period of 18 years is not unreasonable.

BACKGROUND

At all times relevant to this case, Petitioner was the owner of Medco Physicians Unlimited, Inc., (Medco) a community mental health center, located in South Holland, Illinois. In April of 1999, Petitioner was indicted in the Illinois State Court, Circuit Court of Cook, for, among other things, one count of theft/deception over $100,000. The indictment alleged that from approximately February 1996 through June 1998, Petitioner caused Medco to submit bills to the Illinois Medicaid Program (IMP) for services that Medco did not perform.

Specifically, the indictment charged that Medco billed IMP for multiple family group therapy sessions that were never performed, and that these fraudulent claims amounted to over $600,000. The indictment further alleged that Petitioner was responsible for generating electronic billing invoices which falsely stated that Dr. Syed Khadri, a psychiatrist working at Medco, provided certain psychiatric services to Medicaid patients.

In May of 2002, Petitioner ultimately pleaded guilty to count two of the indictment - Vendor Fraud/False Statement. Petitioner was sentenced to 30 months supervised probation, and ordered to pay restitution to the IMP in the amount of $600,000.

By letter dated December 31, 2002, the Office of the Inspector General for the Department of Health and Human Services, notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all other Federal health care programs for a period of 18 years. The I.G. imposed this exclusion pursuant to section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), based on Petitioner's conviction in the Illinois State Court, Circuit Court of Cook, of a criminal offense related to the delivery of a health care item or service under the Medicaid program.

Petitioner filed a request for hearing to appeal the decision of the I.G. to exclude him. The case was assigned to me for hearing and decision. Although advised of his right to counsel at the start of the prehearing conference on June 10, 2003, Petitioner chose to represent himself in this proceeding. Also during the prehearing conference, the parties agreed that the case could be decided based on written submissions, without the need for an in-person hearing, and in light of that agreement, a briefing schedule was set.

Petitioner submitted an initial brief (P. Br.) and a reply brief (P. Rep. Br.). The I.G. also submitted an initial brief (I.G. Br.) and a reply brief (I.G. Rep. Br.). Petitioner offered into evidence Petitioner's Exhibits (P. Exs.) 1-3. Without objection from the I.G., I received into evidence P. Exs. 1-3. The I.G. offered into evidence I.G. Exhibits (I.G. Exs.) 1-5. Petitioner objected to I.G. Exs. 1-4, and Petitioner objected to I.G. Ex. 5 on the grounds that the exhibit was not included in the I.G.'s initial brief. I admit into evidence I.G. Exs. 1-4 because Petitioner failed to provide good cause for their exclusion ⁽¹⁾. I also admit into evidence I.G. Ex. 5, because the Civil Remedies Division's official file of this case indicates that I.G. Ex. 5 was in fact included in the I.G.'s initial brief.

ISSUES

The issues in this case are: (1) whether the I.G. had a basis to exclude Petitioner under section 1128(a)(1) of the Act; and (2) whether an 18-year exclusion of Petitioner is unreasonable.

APPLICABLE LAW

Section 1128(a)(1) of the Act authorizes the Secretary of Health and Human Services (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 of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

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 not less than five years.

Section 1001.102(b) of 42 C.F.R. lists the factors that may be considered to be aggravating and a basis for lengthening the minimum mandatory five-year period of exclusion. In this case the I.G. relies on two of these factors: (1) the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; and (2) the acts resulting in the conviction, or similar acts, resulted in financial loss to a government program or to one or more entities of $5,000 or more.

If there are aggravating factors present which justify an exclusion longer than five years, certain mitigating factors under 42 C.F.R. § 1001.102(c) may be considered for reducing the period of exclusion. However, the period of exclusion may not be mitigated to less than five years.

PETITIONER'S ARGUMENTS

Petitioner raises many arguments which can be synthesized to the following: (1) Petitioner's conviction was not related to the delivery of a health care item or service and therefore the I.G. has no authority to exclude him from Medicaid participation; (2) the I.G. attempted to influence the administrative law judge with allegations made by the Illinois State Police which were not adjudicated; (3) potential Illinois State witnesses were under pressure to make false statements against Petitioner; (4) the I.G. improperly relied on a $600,000 Circuit Court of Cook County, Illinois restitution order to determine the amount of financial loss to the Medicaid program; (5) the 18-year exclusion is punitive and excessive and therefore unconstitutional; (6) the I.G. failed to provide an audit of the alleged false billing claims; (7) there was no evidence that Petitioner owned Medco; (8) there was no evidence Petitioner submitted bills for services rendered ; and (9) the I.G. failed to establish the presence of aggravating factors which justify the 18-year period of exclusion. P. Br., at 5-6.

FINDING 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 separate numbered paragraph. I discuss my findings in the discussion section below.

1. At all times relevant to this case, from February 1996 through June 1998, Petitioner was the owner of Medco, located in South Holland, Illinois. I.G. Ex. 1, at 3; I.G. Ex. 5; P. Br., at 8, 9.

2. At all times relevant to this case, Dr. Syed Khadri was associated with Medco as a psychiatrist. I.G. Ex. 1.

3. Petitioner caused Medco to submit over $600,000 in bills to the IMP for multiple family group therapy sessions that Dr. Khadri never actually performed. I.G. Ex. 2, at 3.

4. In May of 2002, Petitioner pleaded guilty to count two of the indictment-Vendor Fraud/False Statements in the State of Illinois, Circuit Court County of Cook. I.G. Ex. 4.

5. Petitioner was sentenced to 30 months supervised probation, and ordered to pay restitution to IMP in the amount of $600,000. I.G. Ex. 3.

6. By letter dated December 31, 2002, Petitioner was notified by the I.G. that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for an 18-year period pursuant to section 1128(a)(1) and section 1128(c)(3)(B) of the Act.

7. Under section 1128(a)(1) of the Act, the Secretary is required to exclude from participation in Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Act, any individual who has been convicted of a criminal offense related to the delivery of a health care item or service under Medicare or under any State health care program. 42 U.S.C. § 1320a-7(a)(1).

8. Petitioner was "convicted" of a criminal offense as defined in section 1128(i) of the Act.

9. Petitioner's criminal offense is related to the delivery of a health care item or service under the Medicare/Medicaid programs within the meaning of section 1128(a)(1) of the Act.

10. The I.G. must exclude Petitioner under the mandatory exclusion provisions of section 1128(a) of the Act.

11. An exclusion imposed pursuant to section 1128(a)(1) of the Act must be for a minimum period of at least five years. See Act, section 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

12. The I.G. may increase the period of exclusion based on the presence of aggravating factors found at 42 C.F.R. § 1001.102(b).

13. A finding of aggravating factors may support an exclusion of more than five years. 42 C.F.R. § 1001.102(b).

14. The I.G. established by a preponderance of evidence two aggravating factors under 42 C.F.R. §§ 1001.102(b)(1) and (2).

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

16. The acts, or similar acts, resulting in Petitioner's conviction resulted in a loss to the Medicaid program of more than $5,000. I.G. Ex. 2.

17. Petitioner did not prove the existence of mitigating factors.

18. The aggravating factors established by the I.G. proved Petitioner to be untrustworthy.

19. Based on the aggravating factors in this case and the lack of mitigating factors, the I.G.'s exclusion of Petitioner for a period of 18 years is not unreasonable.

DISCUSSION

Petitioner's criminal offense is related to the delivery of a health care item or service under the Medicare/Medicaid programs within the meaning of section 1128(a)(1) of the Act.

Petitioner does not dispute that he was "convicted" of a criminal offense within the meaning of sections 1128(i)(1) and (2) of the Act. However, Petitioner argues that his criminal offense is not related to the delivery of a health care item or service under section 1128(a)(1) of the Act, and therefore the I.G. does not have the authority to exclude him. Specifically, Petitioner maintains that his, "association with Dr. Khadri was in no way related to the delivery of health care services. I was not a manager, agent, biller nor did I submit or supervise any electronic data for health care claims." P. Br., at 4.

Petitioner's assertions are not supported by the facts of the case. The Cook County, State of Illinois grand jury indicted Petitioner specifically for causing electronic billing invoices to be generated for services not rendered, and then submitting those bills to IDP for payment. I.G. Ex. 2. I find that Petitioner does meet the definition of provider under the regulations in that Medco provided psychiatric services to Medicaid patients under a provider agreement. I.G. Ex. 2. Petitioner's definition of a provider is irrelevant to the offense of vendor fraud to which he pleaded guilty.

Petitioner is now seeking to re-litigate the underlying facts of his conviction after he has pleaded guilty to the allegations in count two of the indictment. An ALJ does not have the authority to re-evaluate the underlying facts which gave rise to the conviction or delve into facts surrounding the conviction. See 42 C.F.R. § 1001.2007(d). Thus, Petitioner may not use this forum to re-litigate or collaterally attack the specific facts and circumstances surrounding his criminal conviction.

Similarly, Petitioner's other related arguments (see supra pp. 3-4) are also an attempt to re-argue the facts and circumstances surrounding his conviction. Section 1001.2007 of 42 C.F.R. states specifically that where there is a underlying conviction, an individual may not attack it either on substantive or procedural grounds.

Section 1128(a)(1) of the Act requires that the criminal offense be related to the delivery of an item or service under Title XVIII or any State health care program. I find the crime for which Petitioner was convicted is related to the delivery of a health care item or service because, according to the charges in count two of his indictment, Petitioner caused Medco to submit to IDP fraudulent claims seeking reimbursement for psychiatric services that had not actually been provided to covered Medicaid patients. I.G. Ex. 2, at 3. Filing fraudulent Medicaid claims has specifically been held to constitute program related misconduct. Alan J. Chernick, D.D.S., DAB CR 434 (1996); Jack W. Greene, DAB No. 1078 (1989).

The I.G. has established two aggravating factors which justify the exclusion imposed in this case.

The Secretary has published regulations under section 42 C.F.R. Part 1001 which govern the length of exclusions that are imposed pursuant to section 1128 of the Act. The regulations are found at 42 C.F.R. § 1001.102. An exclusion pursuant to section 1128(a)(1) of the Act must be for a minimum period of five years. See Act, section 1128 (c)(3)(B); 42 C.F.R. §1001.102(a). The I.G. may extend the minimum period of exclusion if she determines that specific aggravating factors are present. See 42 C.F.R. § 1001.102(b). Section 1001.102(b) of 42 C.F.R. identifies aggravating factors which may be used, if present in a case, as a basis to lengthen an exclusion beyond the five-year minimum period. Section 1001.102(c) of 42 C.F.R. provides that mitigating factors may be considered, if present in a case, to offset any aggravating factors that are established.

The I.G. relied on the presence of two aggravating factors to lengthen Petitioner's period of exclusion to 18 years:

(1) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.

The evidence presented by the I.G. has established that the acts which resulted in Petitioner's criminal conviction were committed over a period of one year or more. The record shows that Petitioner's unlawful acts spanned a period of just over two years from February 1996 through June 1998. I.G. Ex. 2, at 2. Other than a general denial, Petitioner offered no evidence to refute this allegation. The I.G. has established the presence of this aggravating factor.

(2) The acts resulting in the conviction, or similar acts, resulted in financial loss to a government program or to one or more entities of $5,000 or more.

Petitioner argues that the I.G. improperly relied on a $600,000 Circuit Court of Cook County, Illinois, restitution order to determine the amount of financial loss to the Medicaid program. Specifically, Petitioner maintains that the level of felony to which he pleaded guilty under Illinois law requires a theft of more than $1,000 and less than $5,000. Therefore, Petitioner reasons that under Illinois law, the loss to the Medicaid program was under $5,000.

Petitioner is incorrect. The charges to which Petitioner ultimately pleaded guilty and the amount of loss to the Medicaid program are not necessarily directly related. Criminal defendants may plead guilty to lesser included charges in order to dispose of cases, and limit their exposure if found guilty after trial. A court's order of restitution to a State Medicaid agency more likely approximates the loss to the Medicaid program. Petitioner was ordered to make restitution to the IDP of $600,000. I.G. Ex. 3. An ALJ may rely on restitution orders, among other factors to determine the presence of this aggravating factor. Scott Gladstone, M.D., DAB CR331 (1994); Martin Weissman et al., DAB CR116 (1991); Arthur D. Freiberg, D.P.M., DAB CR63 (1990).

Thus, I find that the acts resulting in Petitioner's conviction resulted in financial loss to the Medicaid program of $5,000 or more.

The I.G.'s exclusion of Petitioner for 18-years is within a reasonable range.

Petitioner contends that an 18-year exclusion in this case would violate the Eighth Amendment of the United States Constitution which prohibits cruel, unusual, and excessive punishment.

I do not have the authority to hear challenges to federal statutes asserting that the regulations themselves violate the United States Constitution. My authority is limited to the administrative appeals process for exclusions imposed pursuant to section 1128 of the Act as set forth at 42 C.F.R. §§ 1001.2007 and 1005.1-23. Petitioner may pursue this issue in another forum.

Additionally, the mandatory exclusion provision of section 1128 of the Act is remedial in nature and not punitive. Thus, the United States Constitution's prohibition against cruel, unusual, and excessive punishment does not apply because the purpose of the exclusions is to protect beneficiaries from an individual whose trustworthiness Congress has deemed questionable. Joann Fletcher Cash, DAB No. 1725 (2000); Maximo Levin, M.D., DAB CR343 (1994).

Although 42 C.F.R. § 1001.102 establishes the sole factors which may be considered in deciding whether the length of an exclusion is reasonable, it does not prescribe the weight which is to be given to any factor. The regulation contains no formula prescribing any exclusion length beyond the five-year minimum period based on the presence of aggravating factors or the absence of mitigating factors. The regulation merely identifies the factors which may be used to lengthen an exclusion beyond the minimum period.

I must look to the purpose of the Act in order to decide what is the reasonable length of an exclusion where aggravating or mitigating factors are present in the absence of any statement in the regulation as to how much weight must be given to an aggravating or mitigating factor. Section 1128 of the Act is remedial. Its purpose is not to punish the excluded individual but to protect federally funded health care programs, and the beneficiaries and recipients of program funds, from an individual whose conduct establishes him or her not to be trustworthy. In assessing the length of any exclusion that is imposed under section 1128, the ultimate issue that must be addressed is: what length of exclusion is reasonably necessary to protect programs and their beneficiaries and recipients from an untrustworthy individual?

An individual may not be excluded arbitrarily for a period of more than five years simply because aggravating factors are present. The evidence that pertains to those factors must be weighed in order to establish the degree of untrustworthiness that is manifested by the excluded individual. An exclusion that is not based on what the evidence shows about the trustworthiness of the excluded individual may be arbitrary and unreasonably punitive.

The aggravating factors established by the I.G. in this case prove Petitioner to be an untrustworthy individual. Petitioner's lack of trustworthiness is established by the fact that he was a primary participant in a fraudulent billing scheme that lasted over two years, resulting in a loss to the Medicaid program of $600,000. His illegal actions were recurrent and deliberate, not random and impulsive.

I have weighed the evidence and the regulatory factors in this case and find that the I.G. has proven that Petitioner is not a trustworthy individual. The aggravating factors, including a financial loss to the government of $600,000, and the absence of any mitigating factors lead me to conclude that Petitioner is not a trustworthy individual.

CONCLUSION

Based on the evidence presented in this case, I find that the 18-year exclusion that the I.G. has determined to impose in this case is within a reasonable range and is not excessive. I therefore affirm the I.G.'s exclusion of Petitioner for a period of 18 years.

1. I.G. Ex. 1 is a police investigation report. Petitioner objected to I.G. Ex. 1 because, in his view, the report is highly prejudicial as the allegations were not adjudicated and the I.G. provided no affidavits from the witnesses referred to in the report. P. Br., at 5. Although hearsay is admissible in these cases and I admitted I.G. Ex. 1 into the record, I find the exhibit not entirely reliable and relied on it only for background facts. I decided this case based on Petitioner's conviction and the documents associated with that conviction.