SUBJECT:

Stacey R. Gale

Petitioner,

The Inspector General

DECISION

Stacey R. Gale, Petitioner, is excluded from participation in Medicare, Medicaid, and all 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 November 20, 2000, based upon her conviction of a program-related crime. 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 one mitigating factor.

I. PROCEDURAL HISTORY

The Inspector General (I.G.) notified Petitioner that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs by letter dated October 31, 2000. The I.G. advised Petitioner that her exclusion was pursuant to section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)), based on her conviction in the Circuit Court of the Twentieth Judicial Circuit in and for Leon County, Florida, of an offense related to the delivery of an item or service under Medicaid. The I.G. decided to exclude Petitioner for fifteen years (the statutory minimum of five years and an additional ten years) based upon the presence of three aggravating factors. I.G. Exhibit (Ex.) 1.

Petitioner requested a hearing by letter dated August 6, 2002. In the request for hearing, Petitioner represented that she did not receive the notice of exclusion until June 2002. The I.G. does not dispute Petitioner's representation. I.G. Summary Judgment Brief, at 4. Accordingly, there is no issue as to whether or not the request for hearing was timely filed.

The request for hearing was received at the Departmental Appeals Board (DAB), Civil Remedies Division, assigned docket number C-02-806, and assigned to me for hearing and decision on September 12, 2002. On September 27, 2002, I convened a telephonic prehearing conference, the substance of which is memorialized in my Order dated October 9, 2002. The parties did not object to attempting to resolve this case on briefs and a briefing schedule was established and subsequently modified at the parties' request. ⁽¹⁾ The I.G. filed its motion for summary affirmance, supporting brief, and exhibits on November 4, 2002. Petitioner filed her brief in opposition with exhibits on January 9, 2003. The I.G. filed a reply brief on January 27, 2003. ⁽²⁾

On February 24, 2003, I denied the I.G.'s motion for summary judgment, finding there existed material issues of fact related to whether or not the I.G. failed to consider a mitigating factor when determining the appropriate period of exclusion.

I conducted a hearing in this case on June 19, 2003, in Tallahassee, Florida. Petitioner was present at the hearing and was represented by counsel Ann Poe Angel. Counsel for the I.G. appeared by telephone. Petitioner called two witnesses, Stacey R. Gale and Dennis Gale. The I.G. presented the testimony of one witness, Brian D. Pugh, by telephone. Petitioner offered Petitioner's exhibits (P. Ex.) 1-11, and P. Exs. 1 and 3-11 were admitted. P. Ex. 2 was not admitted. Transcript (Tr). 20-38, 153-54, 187. The I.G. offered I.G. Exs. 1-9, and I.G. Exs. 1, 3, 4, 5, 6, 8, and 9 were admitted. ⁽³⁾ I.G. Exs. 2 and 7 were not admitted. Tr. 15-19, 110, 232.

On November 13, 2003, I ordered that the record be reopened for the production of additional evidence and other appropriate action. (Order, November 13, 2003). I ordered reopening of the record based upon footnote five of the I.G.'s post-hearing brief which indicated that the I.G. had discovered additional documentation which might bear upon the case but which had not previously been disclosed or offered as evidence. The I.G. did not offer this extra-record material for my review or indicate that a copy was provided to Petitioner. Thus, Petitioner could not object and I could not determine whether or not the evidence was relevant. The I.G. referred to 42 C.F.R. § 1005.21(f), which gives the DAB the authority to remand a case to me to take more evidence not originally offered at hearing, if certain grounds exist. The I.G.'s statement could have been construed to be an indication that I should feel free to exercise similar authority to order the taking of more evidence or that, if I decided against the I.G. in this matter, the I.G. believed there would be grounds for remand. I elected not to question the I.G.'s purpose, but rather, I treated the footnote as a motion to reopen the record for the taking of additional evidence. ⁽⁴⁾ I also cited as grounds for granting the motion the need to obtain information from Ms. Patricia Morgan regarding the disposition of any information she obtained from Petitioner. I ordered the I.G. to produce the documents it referred to in footnote five of her post-hearing brief. I also ordered the I.G. to obtain and produce an affidavit or declaration from Patricia Morgan that responded to specific questions listed in the order. I advised the parties that after receiving the additional evidence, I would issue such orders as necessary to convene a supplemental hearing, receive additional evidence, require additional briefing, or take other action as required. Order, November 13, 2003, at 5-8.

On November 25, 2003, the I.G. offered I.G. exhibits 10, 11, and 12 in response to my Order of November 13, 2003. I.G. Ex. 10 is a redacted copy of an email. The subject line of the email states "Settlement Fact Sheet, GAMBRO," and the date and time is Thursday, July 6, 2000, 17:40:05. I.G. Ex. 11 is a copy of the settlement agreement among the United States (through the Department of Justice, the I.G. for Health and Human Services, and the Department of Defense, TRICARE Management Activity) and GAMBRO Healthcare, Inc. and Dialysis Holdings Laboratory Services, Inc. I.G. Ex. 12 is a declaration of the Director of Personnel Services for the Office of the Attorney General, State of Florida, who indicates that Patricia Morgan was formerly employed as a senior investigator in the Florida Medicaid Fraud Control Unit, but left on February 24, 2000.

On December 5, 2003, Petitioner objected to admission of I.G. exhibits 10 and 12. I admitted I.G. exhibits 10 and 11 in an order dated December 16, 2003. I stated in the order that the declaration was not responsive to my Order of November 13, 2003, and therefore did not accept I.G. Ex. 12 as evidence. I also ordered the I.G. to show cause why I should not impose a sanction against the I.G. pursuant to 42 C.F.R. § 1005.14(a)(1) for failure to provide the statement of Patricia Morgan responsive to my Order of November 13, 2003. The I.G. responded to the order to show cause on January 2, 2004. Petitioner requested that sanctions be imposed against the I.G. in a pleading filed January 9, 2004.

On January 14, 2004, I ordered that the parties submit any supplemental briefing on the merits of this case not later than February 2, 2004. I advised that after February 2, 2004, the record would be closed and a decision issued.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. 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. Citations to exhibits and transcript pages are found in the analysis section of this decision.

1. Petitioner, Stacey R. Gale, was a licensed pharmacist in Florida and Georgia, authorized to participate in Medicare, Medicaid, and all federal health care programs.

2. Petitioner was charged in the Florida state court with one count of grand theft and one count of Medicaid fraud, during the period August 1, 1997 to September 30, 1998.

3. Petitioner pled guilty on April 17, 2000, and was sentenced in accordance with her plea agreement to 15 years probation (subject to early termination when all monetary obligations of the sentence were satisfied), 364 days incarceration, restitution of $273,188.04, payment of $25,969.27 for the costs of investigation to the Florida Medicaid Fraud Control Unit, and court costs.

4. The I.G. notified Petitioner that she was being excluded pursuant to section 1128(a)(1) of the Act from participation in Medicare, Medicaid, and all federal health care programs by letter dated October 31, 2000.

5. The I.G. notified Petitioner that she would be excluded for 15 years (the statutory minimum of 5 years and an additional 10 years) based upon the presence of 3 aggravating factors.

6. The acts for which Petitioner was convicted resulted in financial loss to the government of $273,188.04 or more.

7. Petitioner's sentence included incarceration of 364 days.

8. The acts for which Petitioner was convicted occurred over a period of one year or more, from August 1997 through September 1998.

9. The I.G. admitted that she did not consider a mitigating factor when deciding upon the appropriate period of exclusion in this case.

10. Petitioner requested a hearing by letter dated August 6, 2002.

11. Petitioner gave information to Brian D. Pugh, then Chief Assistant for the Office of the Florida Statewide Prosecutor, and Patricia Morgan, an investigator with the Florida Medicaid Fraud Control Unit, regarding alleged acts which might constitute Medicaid fraud by Gambro Dialysis (Gambro) clinics.

12. Brian Pugh and Patricia Morgan obtained information from Petitioner as part of their investigation of her and for an additional investigation against Gambro.

13. Petitioner provided information to Brian Pugh and Patricia Morgan voluntarily to the extent that it was not pursuant to compulsory process.

14. Ms. Morgan, an investigator with the Florida Medicaid Fraud Control unit, is presumed to have acted in accordance with her regulatory duty and delivered information provided by Petitioner to federal officials for additional investigation.

15. There is no evidence that federal investigators, including the I.G., did not fulfill their regulatory duty and investigate the allegations of fraud against Gambro.

B. CONCLUSIONS OF LAW

1. Petitioner's request for hearing was timely filed and I have jurisdiction.

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

3. The criminal offense of which Petitioner was convicted was related to the delivery of an item or service under the Medicaid program within the meaning of section 1128(a)(1) of the Act.

4. Petitioner's conviction of program-related crimes requires that she be excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum of five years. Act, sections 1128(a), 1128(c)(3)(B).

5. It is undisputed that there are three aggravating factors in this case.

6. Pursuant to the regulations of the Secretary of Health and Human Services (Secretary), Patricia Morgan had a duty to deliver information such as that provided by Petitioner, to appropriate federal investigators, specifically the I.G.

7. There is a presumption that Ms. Morgan, an investigator with the Florida Medicaid Fraud Control Unit, acted in accordance with her regulatory duty and delivered information provided by Petitioner to federal officials.

8. There is a presumption, or at a minimum I may infer, that the I.G. or other federal officials investigated allegations of fraud against a large Medicare/Medicaid provider, namely Gambro.

9. The I.G. has not produced evidence that the information provided by Petitioner was not used in an additional investigation against Gambro.

10. Petitioner has met her burden of persuasion to show the mitigating factor allowed by 42 C.F.R. § 1001.102(c)(3)(ii).

11. The I.G. abused her discretion by failing to consider the mitigating factor shown by Petitioner, and I must reassess the period of exclusion.

12. The 15-year exclusion proposed by the I.G. based on 3 aggravating factors and without consideration of the mitigating factor is unreasonable.

13. A ten-year exclusion is reasonable given the presence of three aggravating factors and one mitigating factor.

14. Pursuant to 42 C.F.R. § 1001.2002(b), Petitioner's exclusion was effective on November 20, 2000, 20 days after the date of the I.G.'s October 31, 2000 notice of exclusion.

III. DISCUSSION

A. ISSUES

The general issues presented in an exclusion case are whether there is a basis for exclusion and whether the period of exclusion proposed by the I.G. is unreasonable. 42 C.F.R. § 1001.2007(a)(1). In this case, Petitioner has conceded that she was convicted and the conviction is a basis for exclusion pursuant to section 1128(a)(1) of the Act. ⁽⁵⁾

Regarding the reasonableness of the period of exclusion, Petitioner also concedes that there are three aggravating factors. Tr. 6; Petitioner's Post-hearing Brief (P. Brief) at 1. However, Petitioner alleges that the I.G. erred in this case by failing to consider a mitigating factor and, therefore, the period of exclusion is unreasonable.

B. APPLICABLE LAW

Petitioner's right to a hearing before an administrative law judge (ALJ) and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. § 1320a-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 that has been convicted of a "criminal offense related to the delivery of an item or service" under Medicare, Medicaid, or any other federal 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 five years. See 42 C.F.R. § 1001.102(a). Section 1001.102(b) of 42 C.F.R. provides that the minimum exclusion of five years may be extended if certain aggravating factors are present.

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). 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 three or fewer misdemeanor offenses, and the entire amount of financial loss . . . to Medicare or any other Federal, State . . . health care program due to the acts that resulted in the conviction, and similar acts, is less than $1,500;

(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, and 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)(1)-(3).

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 a petitioner to show the presence of mitigating factors. 42 C.F.R. § 1005.15; John (Juan) Urquijo, DAB No. 1735 (2000).

C. ANALYSIS

1. There is a basis for excluding Petitioner for a minimum of five years.

Petitioner was charged in the Florida court with one count of grand theft which alleged that between August 1, 1997 and September 30, 1998, she obtained or used or endeavored to obtain or use $100,000 or more from the State of Florida in violation of Florida Statute § 812.014(2)(a). She was also charged with one count of Medicaid fraud, in that between August 1, 1997 and September 30, 1998, she knowingly made, caused to be made, or aided and abetted the making of a false statement or representation of a material fact, either by commission or omission, in a claim for Medicaid payment in violation of Florida Statute § 409.920(2)(a). I.G. Ex. 3. Petitioner pled guilty to the charges as alleged in exchange for the sentence limitation specified in a plea agreement dated April 17, 2000. I.G. Ex. 5; See I.G. Ex. 4. Petitioner's guilty pleas were accepted and she was adjudged guilty by the state court on April 17, 2000. I.G. Ex. 5. Petitioner was sentenced in accordance with the terms of her plea agreement, to 15 years probation (subject to early termination when all monetary obligations of the sentence were satisfied), 364 days incarceration, restitution of $273,188.04, payment of $25,969.27 for the costs of investigation to the Florida Medicaid Fraud Control Unit, and court costs. I.G. Ex. 5; See I.G. Ex. 4. Petitioner does not dispute these facts or that there is a basis for her exclusion. Petitioner's conviction requires that she be excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum of five years. Act, sections 1128(a) and 1128(c)(3)(B).

2. Three aggravating factors are not disputed.

The I.G. determined to extend Petitioner's exclusion to 15 years pursuant to 42 C.F.R. § 1001.102(b) based on three aggravating factors: (1) the acts for which Petitioner was convicted resulted in financial loss to the government of $1,500 ⁽⁶⁾ or more, based on the restitution ordered; (2) the sentence imposed included incarceration; and (3) the acts for which Petitioner was convicted occurred over a period of one year or more, from August 1997 through September 1998. I.G. Ex. 1. ⁽⁷⁾

Petitioner does not dispute that she was convicted within the meaning of the Act of an offense for which she must be excluded for at least the minimum of five years. Petitioner also does not deny the aggravating factors cited by the I.G. Tr. 6. However, Petitioner does argue that she should not be excluded for more than the minimum five years because there is at least one mitigating factor present that the I.G. failed to consider.

3. Petitioner has met her burden of persuasion that there was a mitigating factor under 42 C.F.R. § 1001.102(c)(3)(ii) not considered by the I.G.

The I.G. admits that no mitigating factor was considered when the I.G. decided upon the appropriate period of exclusion in this case. Rather, the I.G. argues that the evidence offered by Petitioner is insufficient to meet her burden to show that she "cooperated" within the meaning of 42 C.F.R. § 1001.102(c), and that there was no mitigating factor to be considered. Therefore, the I.G. contends that no adjustment of the period of exclusion is appropriate or within my authority. I.G. Post-hearing Brief (I.G. Brief) at 5-7.

Section 1001.2007(a)(1)(ii) of 42 C.F.R. provides that the ALJ must determine whether the length of exclusion imposed is "unreasonable." In making such a determination, the ALJ is to conduct a "de novo" review as to the facts related to any aggravating and mitigating factors identified at 42 C.F.R. § 1001.102. See Joann Fletcher Cash, DAB No. 1725 (www.hhs.gov/dab/decisions/dab1725.html) (2000), n.6 (n.9 in the original decision and Westlaw™), and cases cited therein. The DAB has noted, however, that the preamble to the regulations governing exclusions states that "[s]o long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule." Id. at 17, quoting 57 Fed. Reg. 3298, 3321 (1992). A "reasonable range" is "a range of exclusion periods that is more limited than the full range authorized by the statute and that is tied to the circumstances of the individual case." Gary Alan Katz, R.Ph., DAB No. 1842, at 8, n.4 (2002).

The five-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 or to what extent a mitigating factor should be considered. 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. Urquijo, DAB No. 1735, at 10. The DAB also made clear in Urquijo that: if the I.G. considers an aggravating factor to extend the period of exclusion, but fails to prove it before the ALJ, 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. Id. at 10-11.

In order to resolve the issue of unreasonableness, I must determine whether the I.G. failed to consider a mitigating factor as alleged by Petitioner. If the I.G. failed to consider a mitigating factor that Petitioner shows exists by a preponderance of the evidence, then I must, de novo, determine an appropriate period of exclusion to impose, but I may not reduce the exclusion below the minimum five years required by the Act.

Petitioner specifically alleges that the mitigating factor recognized by 42 C.F.R. § 1001.102(c)(3) applies in this case but that it was not considered by the I.G. in this case. This factor may be considered as a basis for reducing the period of exclusion to no less than five years if Petitioner's cooperation with federal or state officials resulted in one or more of the following:

(i) [o]thers being convicted or excluded from Medicare, Medicaid, and 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 ⁽⁸⁾ of this chapter.

42 C.F.R. § 1001.102(c)(3)(i)-(iii). Petitioner argues that all three grounds are present in this case. P. Brief at 2.

Petitioner acknowledges that, pursuant to 42 C.F.R. § 1005.15(b), she bears the burden of persuasion by a preponderance of the evidence on the existence of this mitigating factor. P. Brief at 2. The I.G. argues that Petitioner has failed to prove by a preponderance of the evidence that any of the three grounds for finding this mitigating factor exist. There is little dispute over the evidence - the dispute relates to what the evidence shows.

Petitioner, Stacey Gale, was a licensed pharmacist in the States of Florida and Georgia since 1992. Tr. 60. She testified that from February 1997 until 2000, she operated a mail order pharmacy located in Donaldsonville, Georgia, known as Gale Pharmacy Services. Tr. 58. Gale Pharmacy provided mail order medications to 26 to 30 dialysis clinics operated throughout the State of Florida by Gambro Dialysis. Tr. 65. Petitioner testified that the Gambro clinics constituted as much as 85 percent of her business and she believed that she was Gambro's only mail order pharmacy for a time. Tr. 66. Petitioner testified that in 1998, her business was visited by Wes Greenwald who advised her that he was doing a Medicaid audit. Petitioner testified that she cooperated with Mr. Greenwald but that he left after finding that a list of prescriptions he had did not match Petitioner's records. Tr. 68-69. Within a month or less, Petitioner was visited by Patricia Morgan who identified herself as being part of the "Medicaid Fraud Unit" and indicated that she needed to look at Petitioner's procedures and that "there was a mix-up in prescription numbers." Petitioner testified that she also cooperated with Ms. Morgan, although Ms. Morgan had no search warrant and never advised Petitioner that she was suspected of any offense. Tr. 70-71. Petitioner identified the documents at P. Exs. 4 and 5 as those Ms. Morgan copied from Gale Pharmacy records. Tr. 71-75. Petitioner also described for Ms. Morgan how Gale Pharmacy did business with Gambro. Tr. 75-76. Petitioner testified that Ms. Morgan mentioned "something with Gambro" and that it might be in Petitioner's best interest to speak to Brian Pugh in Fort Myers. Tr. 77-78. Subsequently, Petitioner spoke with Patricia Morgan by telephone and was told that there was something going on with Gambro, that Gale Pharmacy was one of Gambro's primary pharmacies, and that Petitioner needed to "talk to Brian." Tr. 78. Petitioner's husband, Dennis Gale, testified similarly, but noted that Ms. Morgan did tell Petitioner that "she could be investigated and prosecuted . . . ." Tr. 180-82.

On October 12, 1998, Petitioner and her husband traveled to Fort Myers, Florida to meet with Brian Pugh of the Office of the Florida Statewide Prosecutor, and Patricia Morgan. Tr. 80-81. Mr. Pugh advised Petitioner that he wanted to discuss Petitioner's business with Gambro. Id. Petitioner testified that the conversation with Mr. Pugh was recorded but that the recorder was off at times. She also agreed to have her telephone tapped and to keep track of calls with Gambro. Tr. 84. Petitioner testified that, during the interview that lasted a couple of hours, Pugh asked about Gambro's operations and at least one Gambro employee. Tr. 85-86. Mr. Gale also testified regarding Mr. Pugh's questioning about Gambro. Mr. Gale testified that, at one point, Mr. Pugh indicated to Ms. Morgan that he wanted to pursue Gambro. Tr. 201-02. Mr. Gale also testified on cross-examination that he and Petitioner told Mr. Pugh that Gambro was billing for daily patient visits to dialysis clinics when the patients actually visited every other day. Tr. 220. Mr. Gale stated that he never met with a representative from the U.S. Department of Justice. Id. Mr. Gale testified that the tape recorder was turned off during the interview with Mr. Pugh whenever the questions focused on Gambro. Tr. 222-23.

Petitioner testified that, subsequent to the interview with Brian Pugh, she provided more information to Patricia Morgan. Tr. 86, 161-63. On October 13, 1999, Patricia Morgan and agents of the Georgia Bureau of Investigation executed a search warrant at Petitioner's business, seizing many of her business records. Tr. 90-92. Petitioner believed, based on comments of Pugh and Morgan and other events, that Gambro was being investigated. Tr. 87-88, 99, 174. Petitioner clarified on cross-examination that her phone was not tapped but she testified that she did provide information to Patricia Morgan regarding Gambro. Tr. 100. Petitioner admitted that she did not know if any of the information she provided was used for any purpose. Tr. 115-17.

The I.G. called Brian D. Pugh as a witness to refute Petitioner and her husband's testimony. ⁽⁹⁾ Mr. Pugh is currently an Assistant U.S. Attorney for the District of Nevada. Prior to his present position, he was Chief Assistant for the Office of the Statewide Prosecutor in the Fort Myers Bureau, Fort Myers, Florida, the position he held at the time he conducted the Gale interview. Tr. 246-47. He testified that he recalled an investigation of Petitioner for Medicaid fraud related to qualifying people for the medically needy program by inflating prescription drug costs. He testified that the investigation started with Gale Pharmacy with the possibility of going after Gambro. Mr. Pugh testified that it was Petitioner who requested the meeting with him. Tr. 247-48, 250. He could not recall if anyone was present at the Gale interview other than the Gales, Patricia Morgan, and himself. Tr. 250. Mr. Pugh testified that ultimately he and Patricia Morgan decided that they did not have enough information to pursue Gambro. Tr. 253-55. Mr. Pugh testified that he had no contact with officials from the U.S. Department of Justice regarding Petitioner or her case. Tr. 257. He testified that he did not know what, if any, further action was taken by the Florida Attorney General's office regarding Gambro. He testified that Patricia Morgan was not his employee and he did not know what she might have done with the information from Petitioner. Tr. 258-67, 272, 284, 289-90. He testified that he had no involvement with any action by the I.G. against Gambro. Tr. 270.

It is not disputed that P. Ex. 11 includes a 66-page transcript of the tape recording made during the meeting among Brian Pugh, Patricia Morgan, and the Gales on October 12, 1998. My review of the document reveals that the Gales were desperate to shift blame and make a deal to avoid criminal prosecution, if possible. Clearly many of the Gales' responses to questions by Pugh and Morgan were tangential at best and evasive at worst. However, it was also apparent that some of the questions posed to the Gales were not particularly clear and that also contributed to some of the seemingly evasive responses. During examination at the hearing, Mr. Pugh was never specifically asked to address Petitioner's allegation that at various times during the taped interview, the tape recorder was turned off and during such breaks, the Gales provided significant information regarding Gambro. The transcript itself reflects the breaks (P. Ex. 11, at 40, 51). The transcript also shows that Petitioner provided documents before the meeting with Pugh and Morgan and that Petitioner agreed to provide more documents after the meeting. Id. at 65-66. Clearly, Petitioner provided Mr. Pugh and Ms. Morgan information regarding Gambro and other providers and their practices. See, e.g., id. at 6, 10, 16, 19, 20, 21, 27, 31, 32, 34, 38, 47. Thus, while the Gales' responses to questioning during the meeting with Pugh and Morgan do not reflect well upon their credibility, their testimony at hearing is largely supported by what appears in the transcript of the October 1998 meeting. Considering Mr. Pugh's failure to specifically refute the Gales' version of what happened at their meeting with him and Morgan and the Gales' demeanor as witnesses at hearing, I find it credible that the Gales gave additional information to Mr. Pugh and Ms. Morgan not reflected in the transcript of their meeting.

Petitioner's argument is that prior to, during, and after the meeting on October 12, 1998, Petitioner gave Mr. Pugh or Ms. Morgan information that they could use to pursue an action against Gambro. The fact that Petitioner gave information is substantiated by the October 1998 interview transcript itself and the testimony of the Gales. Mr. Pugh admits that part of the focus of the October 1998 interview was to gain information to use to pursue an action against Gambro. Tr. 248, 252. Petitioner next points to P. Ex. 1, P. Ex. 10, and I.G. Ex. 9, which reflect that, in 2000, the U.S. Department of Justice, on behalf of the I.G., entered into a settlement agreement with Gambro pursuant to which Gambro agreed to pay millions of dollars in exchange for the I.G. agreeing not to pursue, among other remedies, an exclusion action against Gambro. I.G. Ex. 9, at 3-5. Gambro also agreed to abide by a Corporate Integrity Agreement (CIA) as part of the deal. P. Ex. 10. Counsel for the I.G. agreed that a CIA may be imposed as part of a settlement in lieu of an exclusion or a CMP. Tr. 145-46. Petitioner concludes that she cooperated and provided information and, subsequently, Gambro paid a large settlement in lieu of exclusion or criminal prosecution, from which I should infer that the mitigating factors defined by 42 C.F.R. § 1001.201(c)(3) exist.

The I.G. urges, based on the testimony of Mr. Pugh, that nothing was ever done with the information provided by the Gales and that "this shows that there is no evidence that any information provided by Petitioner in this meeting ⁽¹⁰⁾ resulted in additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses." ⁽¹¹⁾ I.G. Brief at 13-14 (footnote added). The I.G. argues that Petitioner has not shown that there is any nexus between the cooperation of the Gales and the action against Gambro. Id. at 5-6. Therefore, while the Gales provided some cooperation, the I.G. contends the cooperation did not have the results required for the mitigating factor specified by 42 C.F.R. § 1001.102(c)(3). The I.G.'s reliance upon Mr. Pugh's testimony is, however, misplaced. Mr. Pugh clearly had no idea what Ms. Morgan did with the information provided by the Gales after it was decided the State of Florida would not use the information for a criminal action against Gambro. It is significant in this regard that Ms. Morgan was an investigator with the Florida Medicaid Fraud Control Unit. At the hearing, I asked that counsel for the I.G. address the relationship between a state Medicaid fraud control unit and the I.G. (Tr. 292-93; I.G. Brief at 15 n.4), but the I.G. did not address the relationship or how it might impact this case. In her post-hearing brief, the I.G. went so far as to assert that "[t]he OIG is not aware of any requirement whereby a state prosecutor or investigator must share information obtained during an investigation with any other law enforcement authorities." I.G. Brief at 15, n.4. However, the relationship between the I.G. and state Medicaid fraud control units is established by regulations of the Secretary at Part 1007 of Title 42, Code of Federal Regulations. Title 42 C.F.R. § 1007.3 provides that the Secretary pays 90% of the costs of establishing and operating state Medicaid fraud control units such as the unit for which Ms. Morgan was an investigator. Further, 42 C.F.R. § 1007.11(e) requires:

[t]he unit will make available to Federal investigators or prosecutors all information in its possession concerning fraud in the provision or administration of medical assistance under the State plan and will cooperate with such officials in coordinating any Federal and State investigations or prosecutions involving the same suspects or allegations.

The regulation clearly establishes the requirement for Ms. Morgan, as an investigator with the Florida Medicaid Fraud Control Unit, to provide the results of any fraud investigation to federal investigators, which would include the I.G. or the U.S. Department of Justice. I may presume, based on this regulatory requirement, that Ms. Morgan fulfilled her legal obligation to pass all information obtained from or about the Gales, Gambro, and other Medicaid providers to the I.G. or its counsel at the Justice Department. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971) (presumption of regularity attaches to actions of government officials). Thus, the regulation provides the nexus between Ms. Morgan at the state agency and federal investigators which includes the U.S. Department of Justice and the I.G. The regulatory relationship between the state Medicaid fraud control unit and the presumption that Ms. Morgan acted consistent with her regulatory duties, allows the inference that the information Ms. Morgan gained from the Gales was passed to federal investigators who performed their duty and investigated the information against Gambro.

The settlement agreement with Gambro (I.G. Ex. 9, at 2) indicates that it covers alleged misconduct by Gambro during the period January 1, 1994 through May 31, 1998. Included within this period is the period during which the Gales had a relationship with Gambro about which they provided information to Ms. Morgan. Thus, there is a temporal nexus. The misconduct alleged in the settlement agreement relates to false or fraudulent billing for laboratory services. I.G. Ex. 9, at 2-3. Although Mr. Gale suggested in his testimony that there was a nexus between information they provided Ms. Morgan and the conduct of Gambro alleged in the settlement (Tr. 219-20), I do not find that suggestion credible. Petitioner was in the mail order pharmacy business and provided some information to Ms. Morgan related to ordering and billing practices of Gambro related to pharmacy services, not laboratory services.

The issue then is whether Petitioner has met the burden of persuasion to establish the mitigating factor. Section 1001.102(c)(3) of 42 C.F.R. provides three separate grounds for finding the mitigating factor based on cooperation with either federal or state officials. To qualify, the cooperation must have resulted in:

(i) others being convicted or excluded from health care programs;

(ii) additional cases being investigated or reports being issued identifying program vulnerabilities or weaknesses;

or

(iii) the imposition against anyone of a CMP or assessment.

42 C.F.R. § 1001.102(c)(3)(i)-(iii). These grounds are stated in the disjunctive and it is sufficient for Petitioner's purpose to meet any one of them.

The first ground must be resolved against Petitioner because there is no evidence that Gambro was convicted or excluded. Regarding the third ground, I agree with Petitioner that the settlement agreement and obligation to pay money and comply with a CIA is tantamount to a CMP or assessment, as the agreement provides on its face that these remedies are agreed to in lieu of a CMP or assessment. However, there is no indication on the face of the settlement that it was in any respect connected with information provided by Petitioner. Thus, the third ground is also resolved against Petitioner.

Did the information provided by Petitioner to Pugh and Morgan result in either additional cases being investigated or reports being issued (stated in the disjunctive in the regulation) so that the mitigating factor of 42 C.F.R. § 1001.102(c)(3)(ii) may be found? Petitioner has shown that she and her husband met with Mr. Pugh, a state prosecutor, and Ms. Morgan, an investigator with the Florida Medicaid Fraud Control Unit. Petitioner gave Pugh and Morgan information regarding business practices of Gambro related to mail order pharmacy services. Mr. Pugh admitted that at least one of his purposes for the interview of the Gales was to obtain information to pursue criminal charges against Gambro at the state level. Thus, it is clear that the information provided by the Gales, voluntarily to the extent it was not pursuant to compulsory process, was used for the purpose of a state investigation of an additional case against Gambro, even though ultimately the investigation against Gambro was dropped. The regulatory requirement of 42 C.F.R. § 1001.102(c)(3)(ii) is that the cooperation in question led to additional cases being investigated; it does not require that such investigation prove to be well-founded or result in any remedy or punishment.

Furthermore, Ms. Morgan had a regulatory duty pursuant to 42 C.F.R § 1007.11(e) to provide the information to the I.G. and/or other federal investigators. A reasonable inference is that Ms. Morgan or her supervisors in the state Medicaid fraud control unit acted in accordance with the regulatory requirement and passed the information provided by Petitioner to federal investigators. I am willing to draw the inference given the particular facts of this case. The inference is consistent with the fact that Mr. Pugh and Ms. Morgan clearly suspected Gambro of questionable activity at the time of the Gales' interview. Drawing the inference is also consistent with the fact that there was an ongoing federal fraud investigation of Gambro which led to allegations by the federal government that Gambro committed fraudulent acts and those allegations ultimately led to a settlement in lieu of exclusion or imposition of a CMP. I am not persuaded by the I.G.'s point that the fraudulent activity alleged as the basis for the settlement agreement is different from that alleged by the Gales as it does not negate the presumption that federal authorities have the duty to investigate allegations of fraud. Drawing the inference is also consistent with the presumption of regularity in government operations, i.e., if the I.G. or other federal investigator obtained information of possible fraudulent activity by a large or small Medicare or Medicaid provider, then there would have been an investigation of the allegations. Finally, drawing the inference in favor of Petitioner is consistent with the recognition that in this case, the I.G., and not Petitioner, is the party most likely to have evidence of what federal investigators did or did not do based on the information the Gales provided Ms. Morgan.

I conclude that Petitioner has met her burden of persuasion on the mitigating factor. Mr. Pugh and Ms. Morgan were not just investigating Petitioner during their interview of her but were using her to gain information for the investigation of an additional criminal case against Gambro. The I.G. has not rebutted either the presumption or the inference that Ms. Morgan or her supervisors acted in accordance with their regulatory duty and passed information obtained from the Gales to federal investigators for use in the federal investigation of Gambro. ⁽¹²⁾

The I.G. argues that "the fact that Petitioner stopped talking to investigators after she obtained a lawyer, and never entered into a formal cooperation agreement with the government, underscores the fact that she did not cooperate with investigators." I.G. Brief at 14. This argument offends any fundamental understanding of Constitutional rights and notions of fundamental fairness. The fact that Petitioner ultimately obtained a lawyer and exercised her Constitutional right (U.S. Const. amend. V) not to incriminate herself, should in no respect be held against her. It would be particularly inappropriate where, as here, it could be argued that government agents (Mr. Pugh and Ms. Morgan) relied upon Petitioner's naivete to obtain information they might not otherwise have had easy access to. For example, they were able to obtain documents without the need to comply with the Fourth Amendment warrant requirement; to engage Petitioner in a lengthy interview without having charged Petitioner with a criminal offense but clearly intending to do so; and to interview Petitioner at length about her conduct in a situation and environment where the clear implication was that if she gave favorable information there might be a deal that could be struck. In fact, Mr. Pugh admitted that one of his purposes in the October 1998 interview was to obtain information to criminally pursue Gambro and this purpose was known to the Gales during the interview.

I agree that, in the cases cited by the I.G. ⁽¹³⁾, there was either evidence of a cooperation agreement or the prosecutor stepped up and attested to a petitioner's cooperation. However, these cases do not establish a standard that the only acceptable evidence of cooperation is a cooperation agreement or a prosecutor's attestation. In fact, the legislative history for 42 C.F.R. § 1001.102(c)(3)(ii) clearly shows what the drafters considered to be sufficient evidence of cooperation when they stated:

While we expect this mitigating factor to be taken into consideration only in those situations where the law enforcement agency validated the person's information by opening up a case investigation or by issuing a report, we nevertheless believe that this additional factor will afford the OIG greater flexibility in identifying and addressing issues related to program waste, fraud and abuse.

63 Fed. Reg. 46,676, 46,681 (Sept. 2, 1998) (emphasis added).

The I.G. also faults Petitioner for failure to call Ms. Morgan as a witness. However, just as the I.G. took the tactical risk of not physically producing Mr. Pugh, Petitioner is entitled to tactically choose to rely upon presumptions under the regulations and inferences that may be drawn from the evidence of record to meet the burden of persuasion. I will not construe Petitioner's tactical choice against her. In this case, it may have been tactically more sound for the I.G. to have called Ms. Morgan rather than Mr. Pugh, or to have produced both rather than risking all on the notion that Petitioner could not meet her burden of persuasion.

3. A ten-year exclusion is not unreasonable in this case considering the aggravating and mitigating factors.

Five years is the statutory minimum period of exclusion in this case. The I.G. elected to extend the exclusion by ten years, for a total of fifteen years, based on the presence of three aggravating factors: (1) the acts for which Petitioner was convicted resulted in financial loss to the government of $273,188.04 or more, based on the restitution ordered; (2) the sentence imposed included incarceration of 364 days; and (3) the acts for which Petitioner was convicted occurred over a period of one year or more, from August 1997 through September 1998. I.G. Ex. 1; P. Brief at 1. The aggravating factors are conceded. However, Petitioner has shown that the I.G. failed to consider the mitigating factor that Petitioner's cooperation with authorities led to the investigation of another entity. Accordingly, it is necessary and appropriate for me to reassess the proper period of exclusion. I do not accept Petitioner's position that no more than the minimum five-year exclusion is appropriate. The mitigating factor simply does not outweigh the aggravating factors to that degree in this case.

The financial loss to the Medicaid program exceeds a quarter of a million dollars in this case - a significant loss which is not mitigated by the fact that Petitioner has been ordered to pay it back. Such a significant loss and the fact that the admitted misconduct continued over more than a year indicates to me that there were many transactions processed by Petitioner - many of which were, according to her guilty plea, fraudulent. Petitioner, at the hearing, in the transcript of the meeting with Mr. Pugh, and in briefing, suggests some naivete about the workings of the Medicaid program and her obligations thereunder. I do not find this credible given her education, her presentation at hearing, and her past work experience. Petitioner suggested in testimony, inconsistent with her guilty plea, that she did not intend to defraud the government or, at least, do anything worse than many other providers. But, the magnitude of the loss to the government and the duration of the misconduct indicate the contrary. Even though I consider Petitioner's cooperation as a mitigating factor, it is clear to me that Petitioner's cooperation was provoked by fear of prosecution and not remorse or an effort to make amends.

Given the seriousness of the offense and the fact that Petitioner has yet to accept the criminal nature of her conduct, I cannot conclude that she is trustworthy for participation in Medicare, Medicaid, or other federal health care programs. I conclude that an exclusion of ten years is appropriate in this case.

IV. CONCLUSION

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of ten years effective November 20, 2000.

Keith W. Sickendick

Administrative Law Judge

1. Petitioner did not affirmatively waive the right to oral hearing in this case. Thus, deciding this case upon the briefs and documentary evidence alone as advocated by the I.G.'s motion for "summary affirmance," was not possible except to the extent that summary judgment might be appropriate. Summary judgment and my authority to resolve appropriate cases in such manner is specifically recognized by 42 C.F.R. § 1005.4(b)(12).

2. I did not admit as evidence any of the exhibits offered with the summary judgment motion because I denied the motion. I allowed the parties to reoffer any exhibits at the hearing of the case.

3. The I.G. requested that a document be marked as I.G. Ex. 9 for identification. Tr. 109-10. The document was not offered by the I.G. as evidence. Subsequently, Petitioner sought to use the same document and have it admitted as evidence. The document was remarked as P. Ex. 11 and admitted as such. Tr. 186-87. The I.G. subsequently offered a different document as I.G. Ex. 9 which was admitted as such. Tr. 232.

4. It would have been better and avoided delay to simply produce the evidence and move to reopen the taking of evidence, allowing Petitioner the opportunity to review and object and me the opportunity to decide if the evidence was really relevant. Furthermore, the I.G.'s approach seemed to suggest that if I was inclined to decide against the I.G. based on the evidence then of record, I should on my own motion reopen and receive the evidence. I feel obliged to advise both parties that my role in this proceeding is as an impartial decision maker. See 5 U.S.C. § 556(b); Act, section 1128(f); 42 C.F.R. § 1005.4(a). I will take such action as necessary to ensure that my impartiality is not compromised by conduct of counsel or a party, even innocent conduct, and to ensure that even the appearance of such compromise is avoided. I am not the investigator who instructs the parties as to what evidence to produce. It is also not for me to suggest to either party how to present its case; to advise them what is necessary to perfect their cases; or to give them multiple opportunities to perfect their cases. My decision to reopen the record was based on the need to fulfill my duty to ensure that the record is truly complete in this case.

5. See Order dated April 25, 2003; Petitioner's Brief in Opposition to Motion of the Inspector General for Summary Affirmance, dated November 21, 2002, at 1, 5; Tr. 6.

6. The amount considered aggravating was increased to $5,000, effective March 18, 2002. 67 Fed. Reg. 11,932 (2002).

7. Petitioner's company, Gale Pharmacy Services, Inc., was also notified of its exclusion from participation in Medicare, Medicaid, and all federal health care programs by I.G. letter dated October 31, 2000. No separate request for hearing was filed by the corporation. I.G. Ex. 6.

8. Pursuant to 42 C.F.R. Part 1003, the I.G. is granted authority to impose civil money penalties (CMPs) for certain misconduct or violations of the Act.

9. Petitioner objected to the testimony of Mr. Pugh because he was not physically present but rather appeared by telephone. Petitioner's specific objection was that she could not confront this witness or adequately cross-examine him because he was not in the courtroom and he could not be observed or view the documents in evidence. Tr. 237, 240. Counsel for the I.G. explained that her appearance and that of her only witness by telephone was due to budget constraints and the fact that her supervising attorney made the tactical judgment that Petitioner could not make a prima facie showing of a mitigating factor. Tr. 238-40. I overruled Petitioner's objection to receiving the testimony of Mr. Pugh by telephone; however, I reserved the option of striking any or all of his testimony if adequate cross-examination proved to be impossible. Tr. 240-44. I have reviewed the transcript and find that counsel for Petitioner had an adequate opportunity to cross-examine Mr. Pugh and, indeed, cross-examined to Petitioner's advantage with no apparent prejudice to Petitioner.

10. The reference is taken to be the meeting among Pugh, Morgan and the Gales.

11. The I.G. indicates, however, that "[t]he purpose of the I.G.'s line of questioning of Mr. Pugh was to establish that he had nothing to do with any investigation of Gambro conducted by any federal or other government agency, including the Department of Justice and the U.S. Attorney's Office, and that he has no knowledge of any civil settlement or CIA negotiated between Gambro and the government." I.G. Brief at 15 n.4.

12. The I.G.'s representation in its post-hearing brief that additional documentation had been discovered provoked me to issue my November 13, 2003 Order reopening the record. It was also apparent on review of the parties' briefs that Ms. Morgan might provide relevant information regarding what she had done with the information given her by Petitioner, a question that Mr. Pugh could not answer. In response to my November 13 order, the I.G. offered as evidence the documents it alluded to in its post-hearing brief. However, the I.G. did not provide the information I sought from Ms. Morgan or offer a substitute, but rather offered an affidavit that Ms. Morgan had not worked for the Florida Office of the Attorney General since February 2000. The I.G. was not responsive in this regard to my order of November 13, 2003. Accordingly, on December 16, 2003, I ordered the I.G. to show cause why it should not be sanctioned or, in the alternative, the I.G. could submit information responsive to my November 13 order. The I.G. responded on January 2, 2004, arguing, inter alia, that Ms. Morgan is not an agent of the federal government or within the control of the I.G. and that an ALJ has no authority to compel the I.G. to produce a witness or evidence. I do not question that Ms. Morgan is no longer employed by the State of Florida and she no longer has responsibilities under 42 C.F.R. Part 1007. However, as among Petitioner, the DAB/ALJ and the I.G., there can be no question that the I.G. is in the best position to locate Ms. Morgan to obtain information from her voluntarily, or if necessary, pursuant to a subpoena. The I.G.'s argument that I have no authority to order the I.G. to produce a witness or evidence is ill-founded. Pursuant to 42 C.F.R. § 1005.4(a), an ALJ is charged with conducting a fair and impartial hearing and to ensure that a complete record is made. Authority specifically granted the ALJ to fulfill the duties specified in subparagraph (a) includes the authority to issue subpoenas requiring attendance of a witness at hearing, to regulate the course of the hearing and the conduct of the representatives of the parties, and to examine witnesses. Section 1005.4(c) of 42 C.F.R. lists those actions for which an ALJ does not have authority and that subsection does not prohibit an ALJ from ordering a party to produce a witness or other evidence for the ALJ's examination. Furthermore, 42 C.F.R. § 1005.14(a) gives the ALJ authority to sanction a party or attorney for failure to comply with an order or procedure or other misconduct that interferes with the speedy and fair disposition of the case. The I.G.'s suggestion that an ALJ is limited to using his or her subpoena power to compel a party to produce evidence, either testimonial or documentary, flies in the face of the fact that an ALJ's subpoena can only be enforced by a federal district judge (see 42 C.F.R. § 1005.9(i); Act, section 205(e)), while the ALJ is authorized to sanction a party or attorney directly for failure to comply with an order. One example of a sanction authorized by 42 C.F.R. § 1005.14(a) is the drawing of a negative inference against a party that refuses to provide or permit discovery. 42 C.F.R. § 1005.14(a)(1). While the I.G.'s failure to produce Ms. Morgan was not a refusal to permit discovery, it has similar adverse impact upon Petitioner and certainly frustrates my ability to ensure that a full record has been developed. Drawing the negative inference that Ms. Morgan's testimony would have supported Petitioner's case would leave little question that Petitioner should prevail. Indeed, had I not found that Petitioner established the presence of a mitigating factor by the preponderance of the evidence, I would have drawn such an inference against the I.G.

I encourage counsel representing the federal government to conform to a higher standard of professionalism and ensure that all evidence is brought before an ALJ to permit a just result and not just a win for the government. The court in Zimmerman v. Schweiker, 575 F. Supp. 1436, 1440 (E.D.N.Y.1983), commented on the ethical obligations of a government attorney, stating "[a]s a United States Attorney General put it more than a hundred years ago, "in the performance of . . . his duty . . . he is not a counsel giving advice to the government as his client, but a public officer, acting judicially, under all the solemn responsibilities of conscience and legal obligations." (citing 6 Ops. Atty.Gen. Office and Duties of Attorney General 326, 334 (1854) (Caleb Cushing to the President)). See also United States v. Shaffer Equipment Co., 158 F.R.D. 80 (S.D. W. Va. 1994) (government attorney's duty of candor to the tribunal is well-established).

13. Urquijo, DAB No. 1735 (2000); Parvin D. Syal, M.D., DAB CR643 (2000); John A. Sayegh, M.D., DAB CR551 (1998); Frank A. DeLia, D.O., DAB No. 1620 (1997); Dr. Darren James, D.P.M., DAB No. 1828 (2002); Arie Oren, M.D., DAB CR564 (1999).