DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Norman A. Klegon, D.O.,
Petitioner,
- v. -
The Inspector General.
DATE: September 9, 1991
Docket No. C-237
DECISION
By letter dated March 19, 1990, the Inspector General (I.G.) informed Petitioner
that he was excluded from
participating in the Medicare and Medicaid programs for seven years. 1/ The
I.G. stated that Petitioner was
excluded as a result of his conviction of a criminal offense related to the
unlawful manufacture, distribu-
tion, prescription, or dispensing of a controlled substance, and that exclusions
after such a conviction are
authorized by section 1128(b)(3) of the Social Security Act (Act).
By letter dated April 4, 1990, Petitioner requested a hearing before an Administrative
Law Judge (ALJ),
and the case was assigned to me. On March 28, 1991, I conducted an in-person
evidentiary hearing in Ann
Arbor, Michigan. I have considered the evidence of record, the parties' arguments,
and the applicable laws
and regulations. I conclude that the I.G.'s determination to exclude Petitioner
from participation in
Medicare and Medicaid programs for seven years is excessive, and that an exclusion
for six years is
reasonable under the circumstances of this case.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute.
Section 1128 of the Act is codified at 42 U.S.C. 1320a-7 (West U.S.C.A., 1991
Supp.). Section 1128(a)(1)
of the Act requires the exclusion from Medicare and Medicaid of those individuals
or entities "convicted"
of a criminal offense "related to the delivery of an item or service"
under the Medicare or Medicaid
programs. Section 1128(c)(3)(B) provides for a five-year minimum period of exclusion
for those excluded
under section 1128(a)(1) of the Act. Section 1128(b) of the Act provides for
permissive exclusions after
convictions relating to fraud, license revocations, failure to supply payment
information, or, as in this case,
conviction for a criminal offense related to the unlawful manufacture, distribution,
prescription, or
dispensing of a controlled substance under section 1128(b)(3).
II. The Federal Regulations.
The governing federal regulations are codified in 42 C.F.R. Parts 498, 1001,
and 1002 (1990). Part 498
governs the procedural aspects of this exclusion case; Parts 1001 and 1002 govern
the substantive aspects.
PROCEDURAL BACKGROUND
On March 19, 1990, the I.G. issued a notice of determination (Notice) informing
Petitioner that he was
being excluded from participation in Medicare and Medicaid for a period of seven
years. The I.G. stated in
his Notice that this exclusion is based on Petitioner's conviction in the United
States District Court for the
Eastern District of Michigan of a criminal offense related to the unlawful manufacture,
distribution,
prescription, or dispensing of a controlled substance. By letter dated April
4, 1990, Petitioner requested a
hearing to contest the I.G.'s determination. This case was docketed and assigned
to me for a hearing and
decision.
Thereafter, the I.G. filed a motion for summary disposition on all issues,
accompanied by a supporting
brief and exhibits. Petitioner responded with a memorandum in opposition to
the I.G.'s motion for
summary disposition, accompanied by exhibits. The I.G. filed a reply brief.
In an October 24, 1990 telephone status call, Petitioner, through counsel,
requested an in-person hearing.
On March 28, 1991, I conducted an in-person hearing in Ann Arbor, Michigan.
Thereafter, the parties
submitted post-hearing briefs and reply briefs.
ADMISSIONS
Petitioner admits that he was convicted of a criminal offense relating to the
unlawful manufacture, distribu-
tion, prescription, or dispensing of a controlled substance, within the meaning
of section 1128(b)(3) of the
Act and that the I.G. has the authority to exclude him from participation in
the Medicare and Medicaid
programs. P. Pre-Hearing Br. 12. 2/
ISSUE
The issue is whether the seven-year exclusion imposed and directed against
Petitioner is reasonable and
appropriate under the circumstances of this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 3/
Having considered the entire record, the arguments and submissions of the parties,
and being fully advised
herein, I make the following Findings of Fact and Conclusions of Law:
1. Petitioner was licensed to practice osteopathic medicine in the State of
Michigan from 1966 to 1984.
Tr. 136-139, 153.
2. During the period from October 1982 to July 1984, the Michigan State Police
Department conducted an
undercover investigation of Petitioner's prescribing and treatment practices.
I.G. Ex. 13.
3. Based on the results of this investigation, the Michigan Department of Licensing
and Regulation
summarily suspended Petitioner's osteopathic license on October 4, 1984, on
the grounds that the continued
licensure of Petitioner constituted an imminent threat to the public health,
safety and welfare. I.G. Ex. 6.
4. At an administrative hearing before the Michigan Department of Licensing
and Regulation, conducted
on February 22, 1985, Petitioner admitted that he prescribed controlled substances
to several undercover
agents without a legitimate medical purpose, during the period from October
1982 through July 1984. I.G.
Exs. 5, 7.
5. Petitioner admitted that on some occasions he received cash payments for
the illegal prescriptions of
controlled substances dispensed to undercover agents. Petitioner admitted that
on other occasions the
undercover agents agreed to submit to medically unnecessary procedures such
as wearing heart monitors or
undergoing EKG testing in exchange for the illegal prescriptions. I.G. Exs.
5, 7.
6. Petitioner admitted that he billed Blue Cross-Blue Shield, a private insurance
carrier, for the medically
unnecessary heart monitor and EKG procedures. I.G. Exs. 2, 5, 7.
7. Petitioner admitted that he also provided work excuses to undercover agents
without diagnosing a
medical condition. I.G. Exs. 5, 7.
8. Petitioner admitted that he provided illegal work excuses to undercover
agents in exchange for the
agents' agreement to submit to unnecessary medical procedures which Petitioner
subsequently billed to
Blue Cross-Blue Shield. I.G. Ex. 5, 7.
9. On May 17, 1985, the Michigan Department of Licensing and Regulation issued
a final order
suspending Petitioner's license to practice osteopathic medicine for a minimum
period of one year and
assessing a $2,000 fine. I.G. Ex. 7.
10. Petitioner's illegal activities were not limited to the agents involved
in the undercover investigation. At
the hearing before me, Petitioner admitted that his criminal activity involved
approximately 15 to 20
individuals. Petitioner also estimated that during the period from January 1,
1982 to November 21, 1984,
he billed Blue Cross-Blue Shield approximately $5,482 for heart monitor and
EKG procedures that were
not medically justified. Tr. 175-179, see P. Ex. 2.
11. Federal Bureau of Investigation (F.B.I.) reports of interviews with former
patients and other individuals
associated with Petitioner at the time that he was practicing medicine reveal
that Petitioner provided illegal
prescriptions for controlled substances in exchange for sexual favors to at
least three females. Tr. 37, 45,
60; I.G. Ex. 14.
12. On February 11, 1988, the grand jury for the United States District Court
for the Eastern District of
Michigan indicted Petitioner for 35 counts of mail fraud and controlled substance
violations. I.G. Ex. 2.
13. Pursuant to a plea bargain agreement, Petitioner pled guilty to one count
of mail fraud and one count of
illegal distribution of a controlled substance. The United States District Court
for the Eastern District of
Michigan accepted Petitioner's guilty plea on January 18, 1989. I.G. Exs. 1,
3.
14. The court sentenced Petitioner to incarceration for a term of 30 months,
fined him $16,000,
recommended psychological counseling, and ordered a special parole term of two
years. I.G. Ex. 3.
15. Petitioner was "convicted" of a criminal offense within the meaning of section 1128(i) of the Act.
16. Petitioner was convicted of a criminal offense "relating to the unlawful
manufacture, distribution,
prescription or dispensing of a controlled substance" within the meaning
of section 1128(b)(3) of the Act.
17. The Secretary of the Department of Health and Human Services delegated
to the I.G. the authority to
determine, impose, and direct exclusions pursuant to section 1128 of the Act.
48 Fed. Reg. 21662 (May
13, 1983).
18. On March 19, 1990, the I.G. excluded Petitioner from participating in the
Medicare program and
directed that he be excluded from participating in Medicaid.
19. The I.G. had the authority to exclude Petitioner pursuant to section 1128(b)(3) of the Act. FFCL 15-17.
20. The I.G. excluded Petitioner for a period of seven years.
21. Section 1128(b)(3) of the Act does not establish a minimum or maximum length
for exclusions brought
under that section.
22. The remedial purposes of section 1128 of the Act include protecting the
integrity of federally funded
health care programs from persons who have demonstrated by their conduct that
they cannot be trusted to
deal with program funds.
23. The remedial purposes of section 1128 of the Act also include protecting
program beneficiaries and
recipients from persons who have demonstrated by their conduct that they cannot
be trusted to treat
beneficiaries and recipients.
24. Petitioner admitted to committing a substantial number of offenses over
a lengthy period of time
involving significant amounts of money. FFCL 4-8, 10.
25. The serious nature of Petitioner's offenses is reflected in the Michigan
Department of Licensing and
Regulation's decision to summarily suspend Petitioner's medical license as well
as its subsequent final
order to continue the suspension of Petitioner's license for a minimum period
of one year. FFCL 3, 9.
26. The serious nature of Petitioner's offenses is reflected in the sentence
of the United States District Court
for the Eastern District of Michigan. FFCL 14.
27. Petitioner had a reputation for wrongdoing even before the death of his
mother in February of 1982.
Tr. 34, 102; I.G. Ex. 14/3, 7.
28. Petitioner was aware of the illegality of his actions and he repeatedly
took affirmative steps to deceive
authorities and conceal his wrongdoing. I.G. Ex. 13/3, 6, 23, 30; I.G. Ex. 14/31-32.
29. Petitioner was motivated to engage in the criminal activity for personal
benefit, including desires for
sexual gratification and for financial gain. Tr. 45, 60; I.G. Ex. 13/23; I.G.
Ex. 14/12, 16, 28.
30. Dr. Rosenberg, Petitioner's treating psychiatrist, did not come into contact
with Petitioner until
approximately four years after the criminal activities occurred. Tr. 98-99.
31. Dr. Rosenberg's opinion that Petitioner's criminal offenses were caused
by his grief over his mother's
death is unpersuasive. Tr. 98-99, 101, 104-106, 114-116, 122, 133; I.G. Exs.
13, 14; FFCL 27-30.
32. Petitioner's willingness to file fraudulent claims with an insurance company
and to issue illegal work
excuses for his monetary benefit poses a threat to the fiscal integrity of the
Medicare and Medicaid
programs. FFCL 5-8, 10.
33. Petitioner's tendency to place his desires for sexual gratification and
financial gain above the health and
well-being of individuals under his care poses a threat to the health and safety
of Medicare and Medicaid
beneficiaries and recipients. I.G. Exs. 13, 14; FFCL 29.
34. Petitioner sought psychotherapy on his own initiative in 1984 after his
license was suspended. This
was the beginning of his rehabilitation. Tr. 156-157, 182.
35. Petitioner continued psychotherapy for a approximately a year and a half.
He again sought
psychotherapy on his own initiative with another physician, Dr. Rosenberg, in
1990, after he was released
from prison. Tr. 157-158; 162, 108.
36. Petitioner abused drugs at the time of his criminal activity in 1984. Tr. 114-116.
37. Petitioner has not tested positive for the use of addictive controlled
substances since he came under Dr.
Rosenberg's care. This is tangible evidence of his progress toward rehabilitation.
Tr. 110.
38. Petitioner continues to need ongoing psychiatric supervision and periodic
tests for drug use. Tr. 113-
114, 120, 127.
39. Petitioner still does not accept complete responsibility for his actions. Tr. 165-169.
40. In 1988, Petitioner used his Missouri license to write prescriptions for
himself for non-addictive
medications, and he presented these prescriptions to a pharmacy located in Michigan.
Tr. 61-64, 70-71.
41. Petitioner relied on the pharmacist to inform him if his prescribing conduct
in 1988 was illegal. Tr.
180-181, 69.
42. Petitioner failed to recognize that he had a duty to independently determine
whether his prescribing
activities in 1988 were permissible. FFCL 41.
43. Petitioner's willingness to test the boundaries of the State of Michigan's
prohibition against practicing
medicine without determining with certainty the limits of permissible activity
shows that he has made
limited progress toward complete rehabilitation. FFCL 40-42.
44. Petitioner has repeatedly engaged in activities which test the limits of
his exclusion sanction, and his
failure to independently ascertain whether these activities are legal shows
that he has made limited progress
toward complete rehabilitation. Tr. 164, 186-188, 193-194.
45. In light of the progress Petitioner has made in correcting the behavior
that led to his conviction, a seven
year exclusion is extreme and excessive.
46. Petitioner's progress toward rehabilitation is genuine, but it is limited.
Under the circumstances of this
case, the remedial considerations of section 1128 of the Act will be served
by a six year exclusion.
DISCUSSION
I. Petitioner Was "Convicted" Of A Criminal Offense "Relating
To The Unlawful Manufacture,
Distribution, Prescription Or Dispensing Of A Controlled Substance" Within
The Meaning of Section
1128(b)(3) Of The Act.
Section 1128(b)(3) of the Act authorizes the I.G. to exclude from participation
in the Medicare and
Medicaid programs individuals or entities who have been "convicted, under
Federal or State law, of a
criminal offense relating to the unlawful manufacture, distribu-tion, prescription,
or dispensing of a
controlled substance".
The first criterion that must be satisfied in order to establish that the I.G.
had the authority to exclude
Petitioner under section 1128(b)(3) of the Act is that Petitioner must be convicted
of a criminal offense.
The undisputed facts establish that: (1) Petitioner pled guilty to one count
of illegal distribution of
controlled substances and to one count of mail fraud and aiding and abetting
in the United States District
Court for the Eastern District of Michigan, and (2) the court accepted Petitioner's
guilty plea. I.G. Exs. 1,
3. Section 1128(i)(3) defines the term "convicted" of a criminal offense
to include those circumstances in
which a plea of guilty by an individual or entity has been accepted by a federal,
state, or local court. I,
therefore, conclude that Petitioner was "convicted" of a criminal
offense within the meaning of sections
1128(b)(3) and 1128(i)(3) of the Act.
The second criterion that must be satisfied in order to find that the I.G.
has the authority to exclude
Petitioner under section 1128(b)(3) is that the criminal offense must relate
to the unlawful manufacture,
distribution, prescription, or dispensing of a controlled substance. The undisputed
facts establish that
Petitioner was convicted of one count of distribution of controlled substances
by prescription in violation
of 21 U.S.C. 841(a)(1). The criminal offense of distribution of a controlled
substance by prescription in
violation of a federal statute on its face constitutes the unlawful distribution
and prescription of a controlled
substance within the meaning of section 1128(b)(3) of the Act. The undisputed
facts therefore satisfy the
requirement that the criminal offense relates to the unlawful distribution or
prescription of a controlled
substance.
Petitioner admitted in his pre-hearing brief that he was "convicted"
of a criminal offense "related to the
unlawful manufacture, distribution, prescription or dispensing of a controlled
substance". P. Pre-Hearing
Br. 12. The record supports these admissions. Thus, I conclude that the I.G.
had the authority to impose
and direct an exclusion against Petitioner from participation in the Medicare
and Medicaid programs.
II. A Six Year Exclusion Is Appropriate And Reasonable In This Case.
A. The remedial purpose of section 1128 of the Act is to protect federally-funded
health care programs
and their beneficiaries and recipients from untrustworthy providers.
Since Petitioner has admitted, and I have concluded, that he was convicted
of a criminal offense for which
the I.G. may impose an exclusion pursuant to section 1128(b)(3) of the Act,
the only contested issue in this
case is whether the seven year exclusion imposed on Petitioner by the I.G. is
reasonable and appropriate
under the circum-stances of this case. Resolution of this issue depends on analysis
of the evidence of
record in light of the exclusion law's remedial purpose. Lakshmi N. Murty Achalla,
M.D., DAB App. 1231
(1991).
Section 1128 is a civil statute and Congress intended it to be remedial in
application. The remedial purpose
of the exclusion law is to enable the Secretary to protect federally-funded
health care programs from
misconduct. Such misconduct includes fraud or theft against federally-funded
health care programs. It
also includes neglectful or abusive conduct against program recipients and beneficiaries.
See, S. Rep. No.
109, 100th Cong., 1st Sess. 1, reprinted in 1987 U.S. Code Cong. and Admin.
News 682.
The key term to keep in mind is "protection", the prevention of harm.
See, Webster's II New Riverside
University Dictionary 946 (1984). As a means of protecting the Medicare and
Medicaid programs and
their beneficiaries and recipients, Congress chose to mandate, and in other
instances to permit, the
exclusion of untrustworthy providers. Through exclusion, individuals who have
caused harm, or
demonstrated that they may cause harm, to the federally funded health care programs
or their beneficiaries
or recipients are no longer permitted to receive reimbursement for items or
services which they provide to
Medicare beneficiaries or Medicaid recipients. Thus, untrustworthy providers
are removed from a position
which provides a potential avenue for causing harm to the program or to its
beneficiaries or recipients. See
Vladimir Coric, DAB Civ. Rem. C-244 (1991).
Congress has not mandated that exclusions from participation in the federally-funded
health care programs
be permanent. Instead, section 1128(g) provides that an excluded provider may
apply for reinstatement
into the program at the end of the exclusion period. The Secretary may then
terminate the exclusion if
there is no basis for a continuation of the exclusion and there are reasonable
assurances that the types of
actions which formed the basis for the original exclusion have not recurred
and will not recur.
By not mandating that exclusions from participation in federally-funded health
care programs be
permanent, Congress has allowed the I.G. the opportunity to give individuals
a "second chance". The
placement of a limit on the period of exclusion allows an excluded individual
or entity the opportunity to
demonstrate that he or she can and should be trusted to participate in the federally-funded
health care
programs as a provider of items and services to beneficiaries and recipients.
See Thomas J. DePietro, R.
Ph., DAB Civ. Rem. C-282 at 8 (1991).
The ultimate issue to be determined at a hearing pertaining to an exclusion
imposed pursuant to section
1128 of the Act is whether the exclusion is reasonable. 42 C.F.R. 1001.128(a)(3).
In adopting this
regulation, the Secretary stated that:
The word `reasonable' conveys the meaning that . . . [the I.G.] is required
at the hearing only to show that
the length of the [exclusion] determined . . . was not extreme or excessive.
48 Fed. Reg. 3744 (January 27, 1983). An exclusion determination will be held
to be reasonable where,
given the evidence of the case, it is consistent with the legislative purpose
of protecting federally-funded
health care programs and their beneficiaries and recipients and it is not extreme
or excessive as a length of
time necessary to establish that the excluded provider no longer poses a risk
to covered programs and their
beneficiaries and recipients. See Basem F. Kandah, R. Ph., DAB Civ. Rem. C-155
at 5 (1990).
In order to be adjudged reasonable under section 1128, an exclusion must satisfy
the remedial objective of
protecting federally-funded health care programs and their beneficiaries and
recipients from untrustworthy
providers of items or services. An exclusion which satisfies this purpose may
also have the ancillary
benefit of deterring wrongdoing. However, an exclusion fashioned solely to achieve
the objective of
deterrence is punitive if it does not reasonably serve the Act's remedial objective.
See Elias Goldstein,
DAB Civ. Rem. C-104 (1989).
B. The fact finder must evaluate the totality of the circumstances of each
case in light of the remedial
purpose of the exclusion law in order to determine the appropriate length of
an exclusion.
Guidance in determining the appropriate length of an exclusion is found in
regulations contained in 42
C.F.R. 1001.125(b). These regulations were adopted by the Secretary prior to
the enactment of the 1987
Amendments to the Act. The regulations specifically apply only to exclusions
for "program-related"
offenses. To the extent that they have not been repealed, however, they embody
the Secretary's intent that
they continue to apply, at least as broad guidelines, to the cases in which
discretionary exclusions are
imposed. 4/ The regulations require the I.G. to consider factors related to
the seriousness and program
impact of the offense, and to balance those factors against any factors that
demonstrate trustworthiness.
Leonard N. Schwartz, R. Ph., DAB Civ. Rem. C-62 (1989).
Since the exclusion remedy is not intended to be a punishment for wrongdoing,
the regulations should not
be applied as sentencing guidelines to the facts of a case to determine the
degree of a provider's culpability
with a view to determining the punishment he "deserves". Instead,
the regulations provide guidance as to
the factors that should be considered in order to make inferences about a provider's
trustworthiness and the
length of time a provider should be excluded to provide the Secretary adequate
opportunity to determine
that a provider no longer poses a risk to the covered programs and to their
beneficiaries and recipients.
A determination of the length of time necessary to establish that a provider
is no longer a threat to the
covered programs and to their beneficiaries and recipi-ents necessitates an
evaluation of the myriad facts of
each case, including the nature of the offense committed by the provider, the
circumstances surrounding
the offense, whether and when the provider sought help to correct the behavior
which led to the offense,
how far the provider has come towards rehabilitation, and any other factors
relating to the provider's
character and trustworthiness. See Thomas J. DePietro, R. Ph., DAB Civ. Rem.
C-282 (1991), See Joyce
Faye Hughey, DAB App. 1221 (1991).
There is no precise formula which can be applied to calculate when a provider
should be trusted and
allowed to reapply for participation in the federally-funded health care programs.
The totality of the
circumstances of each case must be evaluated in order to reach a determination
regarding the appropriate
length of an exclusion. Id.
C. The nature and gravity of Petitioner's offenses are serious.
The parties presented a rich and thorough record in this case. The record shows
that Petitioner engaged in
a pattern of serious criminal activity over a period of several years. On October
20, 1982, the Michigan
State Police Department began an undercover investigation of the prescribing
and treatment practices of
Petitioner. This investigation, involving five undercover agents, was initiated
because a patient of
Petitioner informed the Michigan State Police that it was possible to obtain
prescriptions for controlled
substances from Petitioner without any medical reason or physical examination.
I.G. Ex. 13; see I.G. Ex.
5.
Based on the results of this investigation, the Michigan Attorney General filed
a five count administrative
complaint before the Michigan Department of Licensing and Regulation on October
2, 1984. I.G. Ex. 5.
The serious nature of Petitioner's activities is reflected in the fact that
two days later the Michigan
Department of Licensing and Regulation summarily suspended Petitioner's osteopathic
license on the
grounds that the continued licensure of Petitioner "constitutes an imminent
threat to the public health,
safety and welfare requiring emergency action". I.G. Ex. 6. There was an
administra-tive hearing in this
case on February 22, 1985, and at this hearing Petitioner stipulated that the
factual and legal allegations of
the complaint were true with some minor modifications. 5/
The administrative complaint alleged, and Petitioner admitted that, during
the period from October 1982
through July 1984, Petitioner prescribed controlled substances to several undercover
agents without a
legitimate medical purpose. Petitioner admitted that on some occasions he received
consideration in the
form of cash payments for the prescriptions of controlled substances. On other
occasions, Petitioner
admitted that he issued prescriptions for controlled substances in exchange
for the undercover agents'
agreement to wear a heart monitor for 24 hours and to submit to EKG proce-dures.
Petitioner subsequently
billed Blue Cross-Blue Shield, a private insurance company, for the heart monitor
and the EKG
procedures. Petitioner admitted that he did not conduct a physical examination,
obtain a medical history,
or diagnose a condition which indicated that the heart monitor or EKG procedures
were appropriate for any
of the individuals.
By Petitioner's own admission, the provision of the heart monitor and EKG services
in exchange for
controlled substances was an unlawful transaction between Petitioner and the
undercover agents to provide
controlled substances without a legitimate medical need. In addition, Petitioner
admitted that he billed the
heart monitor and EKG procedures to Blue Cross-Blue Shield for the purpose of
unlawfully obtaining third
party reimbursement for services that were not medically necessary.
Petitioner admitted that during this period of time he also provided work excuses
to several of the
undercover agents without diagnosing a medical condition. Petitioner admitted
that he provided these
illegal work excuses in exchange for the undercover agents' agreement to wear
a 24-hour heart monitor and
to submit to EKG procedures. Petitioner then defrauded Blue Cross-Blue Shield
by billing for these
medically unnecessary services.
Subsequent to the hearing on the allegations contained in the administrative
complaint, the Michigan
Department of Licensing and Regulation issued a final order, dated May 17, 1985,
suspending Petitioner's
license to practice osteopathic medicine for a minimum period of one year and
assessing a $2,000 fine.
I.G. Ex. 7. This action confirmed that upon hearing all the evidence at a full
hearing, the Michigan
Department of Licensing and Regulation viewed Petitioner's illegal activities
to be of sufficient gravity to
merit continued suspension of his license.
Petitioner's illegal activities were not limited to the five undercover agents
involved in the investigation
which led to the filing of the administrative complaint. Upon reviewing the
results of the undercover
investiga-tion performed by the Michigan State Police Department, the F.B.I.
pursued an investigation of
Petitioner's prescribing and billing practices. Rick Germroth, a special agent
with the F.B.I., testified at the
hearing before me that he interviewed approximately 20 individ-uals who had
been associated with
Petitioner during his practice of osteopathic medicine, including former patients,
employees, and
pharmacists. Mr. Germroth stated that at least half of these individuals had
received illegal prescriptions
for controlled substances or illegal work excuses from Petitioner. Mr. Germroth's
testimony, as well as the
written reports of some of his interviews, reveals that Petitioner received
various forms of compensation
for providing illegal prescriptions and illegal work excuses. In some instances,
individuals paid for the
prescriptions and work excuses with cash. In instances where the individuals
were insured by Blue Cross-
Blue Shield, they paid for the prescriptions and work excuses by wearing the
24-hour heart monitor. In
addition, several females agreed to exchange sexual favors for the prescriptions
and work excuses. Tr. 14,
19, 21, 23, 37; see I.G. Ex. 14.
When asked at the March 28, 1991 hearing about the scope of his illegal activities,
Petitioner estimated that
his criminal activity involved approximately 15 to 20 individuals. The record
shows that during the period
between January 1, 1982 and November 21, 1984, Petitioner billed Blue Cross-Blue
Shield a total of
$109,639.76 for heart monitor and EKG procedures. Petitioner estimated that
approximately five percent
of these billings, amounting to approximately $5,428, were for procedures that
were not medically
justified. Even assuming that Petitioner's account of his illegal activities
is understated, Petitioner has
admitted to committing a substantial number of offenses involving significant
amounts of money over a
lengthy period of time. Tr. 175-179, see P. Ex. 2.
On February 11, 1988, based on information supplied by the F.B.I., the grand
jury for the United States
District Court for the Eastern District of Michigan indicted Petitioner for
35 counts of mail fraud and
controlled substance violations. Tr. 50-51; I.G. Ex. 2. Pursuant to a plea bargain
agreement, Petitioner
pled guilty to one count of mail fraud and one count of illegal distribution
of a controlled substance. I.G.
Ex. 1. The United States District Court for the Eastern District of Michigan
convicted Petitioner for these
offenses, and the serious nature of Petitioner's criminal activity is reflected
in the sentence imposed by the
court. The court sentenced Petitioner to 30 months of imprisonment and fined
him $16,000. In addition,
the court recommended psychological counseling for Petitioner and ordered him
to serve a special parole
term of two years. I.G. Ex. 3.
D. Petitioner's argument that his criminal activities were caused by a grief
reaction to his mother's death is
unpersuasive.
Petitioner concedes that the acts which formed the basis for his license revocation
and subsequent were
"illegal" and "wrong". Tr. 153. However, he contends that
a seven year exclusion is unreasonably lengthy
because his criminal misconduct was the result of a severe grief reaction he
suffered over the untimely
death of his mother and that he has since taken the necessary steps to rehabilitate
himself. P. Post-Hearing
Br. 10.
Petitioner testified that he lived in his parents' home until he was 39 years
old, and that he had an especially
close relationship with his mother. Tr. 143-144. Petitioner stated that in 1982
his mother died suddenly of
a heart attack and that she might have lived if her doctors had performed a
simple test which would have
shown the need for immediate surgery. Tr. 145-149. Petitioner testified that
his mother's sudden death
under these circumstances "shook" him "to the foundation"
and undermined his belief in religion. Tr. 150-
151. According to Petitioner, he became very despondent after his mother's death
and he "saw things
completely dark". Tr. 151. Petitioner stated that his depression at this
time impaired his ability to know
right from wrong, and that he began to treat his patients in a "robotic"
way. Tr. 151, 166. Petitioner stated
that at the time he engaged in the criminal activity from 1982 to 1984, he did
not really know what he was
doing and that he dispensed controlled substances and billed Blue Cross-Blue
Shield for medical
procedures that were not indicated because of his depression. Tr. 166, 174-175.
Petitioner's testimony regarding the effect his mother's death had on him was
supported by the expert
testimony of Dr. Harvey J. Rosenberg, a psychiatrist with extensive experience
in treating patients who
have abused alcohol and drugs. Tr. 90, 91, 93. Petitioner's attorney referred
Petitioner to Dr. Rosenberg at
the time he was criminally indicted, for an evaluation of the circumstances
surrounding his criminal
activity. Dr. Rosenberg saw Petitioner approximately 10 times during the period
from July 1988 to
September 1988 for the purpose of evaluating him. Tr. 98-99. Dr. Rosenberg did
not see Petitioner again
until after Petitioner completed his prison sentence in 1990. 6/ At that time,
Petitioner on his own initiative
contacted Dr. Rosenberg and requested that he treat him on an ongoing basis.
Tr. 107-108.
Dr. Rosenberg testified that, in his opinion, Petitioner suffered a major depressive
disorder as a result of his
mother's death. Tr. 101. Dr. Rosenberg stated that Petitioner's depression was
compounded by "the fact
that she died in a malpractice situation", and that Petitioner felt guilty
that he, as a physician, was unable to
prevent his mother's death. Tr. 106. Dr. Rosenberg expressed the view that Petitioner's
depression caused
him to abuse drugs and the depression, combined with the drug abuse, caused
him to engage in his illegal
activi-ties. According to Dr. Rosenberg, Petitioner was disabled from practicing
medicine competently
during the period following his mother's death. He was unable to function and
think clearly. His impaired
mental condition robbed him of his ability to distinguish right from wrong.
Dr. Rosenberg, like Petitioner,
used the word "robotic" to describe Petitioner's behavior during the
period from 1982 to 1984. He stated
that Petitioner automatically gave patients whatever they asked for and that
Petitioner was not thinking
clearly when he filed improper claims with Blue Cross-Blue Shield. Tr. 104-106,
114-116, 122, 133. Dr.
Rosenberg further expressed the opinion that it is unlikely that Petitioner
will repeat his criminal activities
in the future. He reasoned that Petitioner's "anti-social" behavior
was precipitated by the unique
circumstance of his mother's death and that since Petitioner is not as close
to anyone else as he was to his
mother, he will probably never suffer the same depressive disorder again. Tr.
113, 128-129.
I am not persuaded by Petitioner's explanation for his criminal activities
or by Dr. Rosenberg's
corroborating opinion regarding the cause of Petitioner's misconduct. I note
that Dr. Rosenberg's first
contact with Petitioner was not until July of 1988, several years after the
criminal activity in question
occurred. While I was impressed by Dr. Rosenberg and his testimony concerning
Petitioner's
rehabilitation, Dr. Rosenberg did not have the opportunity to evaluate Petitioner
near the time that
Petitioner was engaging in the criminal misconduct. Thus, I conclude that Dr.
Rosenberg's opinion
regarding Petitioner's state of mind at the time of the criminal misconduct
is speculative and unconvincing.
In addition, Dr. Rosenberg's opinion testimony on this issue is controverted
by information contained in the
reports of the Michigan State Police Department's undercover investigation and
the F.B.I. reports of
interviews with witnesses. I accord greater weight to the undercover investigative
reports than I do to Dr.
Rosenberg's opinion because they were contemporaneous accounts of the criminal
activities in question. I
also rely on the F.B.I. witness reports because they are accounts of statements
made by people who
associated with Petitioner at the time of the criminal activity.
Dr. Rosenberg characterizes Petitioner as basically a moral individual who
was temporarily impaired
emotionally by the death of his mother. According to Dr. Rosenberg, Petitioner's
impairment caused him
to be easily manipu-lated by individuals who wanted illegal controlled substances
and it deprived him of
his ability to distinguish right from wrong. I accept that Petitioner experienced
depression as a result of his
mother's death. I also accept that Petitioner abused drugs during the period
of his criminal activity, as Dr.
Rosenberg contends. I do not, however, accept that the death of Petitioner's
mother impaired him so
severely that he lacked the capacity to appreciate the wrongfulness of his actions
or that it caused him to be
manipulated and led astray by others.
On the contrary, the picture that emerges from the investigative reports contained
in the record is that
Petitioner was an individual who engaged in wrongdoing even before the death
of his mother and that he
was motivated to engage in this wrongdoing for reasons related to his desires
for financial gain and sexual
gratification. This evidence also establishes that Petitioner was aggressive
and enterprising in pursuing his
criminal activities, that he was aware that his actions were wrong, and that
he continually developed
schemes to avoid detection.
For example, John D. Patton, Jr., a former patient of Petitioner's, told F.B.I.
Agent Germroth that he began
seeing Petitioner in 1978 for the sole purpose of receiving work release excuses.
Mr. Patton estimated that
he received "100 plus" work excuses and that none of them were for
legitimate medical reasons. I.G. Ex.
14/3. Similarly, Toran Stewart, Jr., another former patient, told Agent Germroth
that a friend
recommended Petitioner to him in the early 1970s because Petitioner was an easy
source of work release
excuses. Mr. Stewart stated that he repeatedly received work excuses without
first receiving a medical
examination. I.G. Ex. 14/7. In addition, Agent Germroth testified that Verna
Blacklock was introduced to
Petitioner by her sister in 1977 for the purpose of obtaining controlled substances
from him, but that she
was not complaining of the symptoms of any illness when she first started seeing
Petitioner. Tr. 34. This
evidence shows that, even prior to the death of his mother, Petitioner had the
reputation for being a
physician who dispensed work excuses and controlled substances without adequate
medical justification.
In addition, Mercedes Polske, a former receptionist of Petitioner's, who worked
for him from August 1980
to September 1982, told Agent Germroth that while Petitioner experienced some
depression after his
mother's death, she did not observe any change in Petitioner's care for his
patients. I.G. Ex. 14/38.
Petitioner's mother died in February of 1982. Tr. 102. The fact that Petitioner's
receptionist did not
observe any noticeable change in Petitioner's care for his patients during the
seven month period after his
mother's death undermines Petitioner's testimony that he was dramatically impaired
by his mother's death.
Although Dr. Rosenberg attempts to advance the view that Petitioner engaged
in wrongdoing because of a
depressive disorder, the investigative reports provide ample evidence that he
engaged in criminal
misconduct in order to obtain sexual gratification or to benefit himself financially.
According to
statements made by Verna Blacklock, Petitioner provided her with daily injections
of the drugs vistrol and
nubane from mid-1981, prior to Petitioner's mother's death, to 1984, in exchange
for sexual favors. I.G.
Ex. 14/12. Based on Agent Germroth's testimony, at least two other women told
him that they granted
Petitioner sexual favors in exchange for controlled substances. Tr. 45, 60.
Verna Blacklock also worked for Petitioner as a receptionist on a fill-in basis
from 1981 to 1984. She told
Agent Germroth that patients without health care insurance were not ever asked
to wear heart monitors.
This suggests that Petitioner prescribed this procedure only when he knew that
he would be able to obtain
financial reimbursement for it. In addition, Verna Blacklock stated that Petitioner
often bragged about how
much money he was making by having patients with insurance coverage wear heart
monitors. I.G. Ex.
14/15-16. Patricia Smith, another former patient who worked as a receptionist,
also told Agent Germroth
that Petitioner had bragged to her about how much money he was making from Blue
Cross-Blue Shield.
I.G. Ex. 14/28. In addition, one of the agents involved in the undercover investigation
reported that when
Petitioner asked him to submit to the heart monitor test, he stated that he
appreciated the fact that the
officer was willing to help him out and that "these recession times were
also tough on doctors". I.G.
Ex.13/23. Petitioner's fraudulent claims against Blue Cross-Blue Shield were
not the result of unclear
thinking, as Dr. Rosenberg suggests. Instead, this evidence shows that Petitioner
was clearly aware that his
criminal activity was profitable and that he engaged in this activity to advance
his financial interests.
Dr. Rosenberg's portrayal of Petitioner as an individual who was psychologically
impaired to the degree
that he did not know right from wrong and was easy prey for the manipulations
of others is not
substantiated by the record. Instead, the record is replete with examples where
Petitioner consciously took
steps to avoid having his illegal activities detected by authorities. This shows
that he was very aware of the
illegality of his actions and that he actively tried to conceal his wrongdoing.
For example, Petitioner
reportedly told Sherry Hyatt, a former patient and sexual partner, that he would
not prescribe a certain kind
of drug to her because he "might get in trouble with the law". I.G.
Ex. 14/31. In addition, Sherry Hyatt
stated that Petitioner often used names other than her name on prescriptions
in order to conceal the volume
of prescriptions he was writing for her. I.G. Ex. 14/32. Petitioner repeatedly
told undercover agents that
he was unable to prescribe certain types of drugs in the amount they requested
because authorities were
monitoring these drugs. I.G. Ex. 13/3, 6. During one visit with an undercover
agent, Petitioner explained
that he might have to stop prescribing amphetamines after a 90 day period. He
showed Petitioner a letter
from the Attorney General which stated that it was illegal for a doctor to prescribe
amphetamines for more
than a 90 day period. Petitioner then told the undercover agent not to worry,
because at the end of the 90
days he would "switch to Preludin, which is a synthetic but just as good".
He also stated that "there was
always ways to work around these things". I.G. Ex. 13/23. When another
undercover agent asked
Petitioner if he could obtain controlled substances and work excuses in exchange
for wearing a heart
monitor, Petitioner told him that they would have to be "very discreet".
I.G. Ex. 13/30.
The record provides ample evidence that Petitioner was in control of his actions.
Rather than passively
being manipulated by others, he was aggressive and enterprising in pursuing
his criminal activities. Bojica
Bojicic, a former patient of Petitioner's, told Agent Germroth that Petitioner
asked him to inform others at
the plant at which he worked that he would provide narcotics or work excuses
in exchange for patient
insurance billing privileges. Petitioner gave Mr. Bojicic his business cards
and asked him to distribute
them to his coworkers. Mr. Bojicic estimated that he referred over 50 people
to Petitioner. I.G. Ex. 14/19.
This evidence suggests that Petitioner took the initiative to expand the scope
of his criminal activities and
that he pursued these activities on a larger scale than he admitted to me at
the hearing.
The nature of Petitioner's criminal activity was complex and calculated, and
the record shows that
Petitioner engaged in it for his personal benefit. There is no evidence which
suggests that Petitioner
committed fraud against the Medicare and Medicaid programs. However, it can
be inferred from the fact
that Petitioner filed fraudulent claims with a private insurance company that
he is untrustworthy and that he
poses a threat to the fiscal integrity of the Medicare and Medicaid programs.
In addition, Petitioner's
willingness to abuse his position as a physician to improperly issue work excuses
for his personal financial
gain convinces me that he is untrustworthy and that he poses a threat to the
integrity of the Medicare and
Medicaid programs.
Even more troubling is Petitioner's use of his medical license to prescribe
potentially dangerous controlled
substances without medical necessity. This leads me to conclude that he poses
a threat to the health and
safety of Medicare and Medicaid beneficiaries and recipients. Petitioner repeatedly
demonstrated by his
actions that he was indifferent to the health and well-being of individuals
under his care. Sherry Hyatt
reported to Agent Germroth that Petitioner prescribed a variety of controlled
substances to her even though
he knew that she was a heroin addict. He also prescribed diet pills even though
she was extremely thin.
She reported that on one occasion, she went into convulsions after Petitioner
gave her an injection of an
unknown substance. Ms. Hyatt paid for access to the drugs by providing sexual
favors to Petitioner. I.G.
Ex. 14/31-32. This evidence demon-strates that Petitioner actively encouraged
Ms. Hyatt's dependency on
narcotics in order to have an assured source of sexual gratification. Thus,
he placed a higher value on his
own desire for sexual pleasure than he did on the health of an individual under
his care. This pattern of
behavior was repeated with several other women. Verna Blacklock reported that
she experienced
"traumatic withdrawal symptoms" after Petitioner's medical license
was suspended in 1984 and she no
longer had a source of narcotics. I.G. Ex. 14/15. Agent Germroth also testified
that he uncovered evidence
that Petitioner prescribed drugs to Ms. Blacklock in combinations which can
be physically harmful. Tr.
35-37.
By any measure, Petitioner's criminal activities were serious in nature and
I find that the remedial
considera-tions of the Act justify a lengthy exclusion in this case. There are,
however, circumstances in
this case which mitigate against an exclusion as long as seven years.
E. There is evidence that Petitioner has made some progress in his rehabilitation.
Were it not for evidence of Petitioner's rehabilitation, a seven year exclusion
would easily be justified in
this case. While Petitioner did not stop his criminal activity until his license
was revoked, there is evidence
that he first began steps toward rehabilitation at this point. Petitioner testified
that his license revocation
was a traumatic event for him and that it caused him to be aware of the need
for psychological counseling.
The record shows that Petitioner on his own initiative sought psychotherapy
at this time. In addition,
Petitioner was licensed to practice medicine in two other states, but he testified
that he did not attempt to
establish a practice in those locations because he wanted to "resolve the
issues" that got him into trouble
and to get himself "straightened out". Tr. 156-157, 182.
Petitioner stopped his psychotherapy after approximately a year and a half
because he thought that he had
progressed as far as he could with that doctor. Tr. 157-158. Petitioner on his
own initiative sought
psychologi-cal treatment in 1990 from Dr. Rosenberg after he was released from
prison. Tr. 162, 108. Dr.
Rosenberg testified that Petitioner's psychological health had improved substantially
between the time that
he evaluated him in 1988 and the time he started treating him in 1990. He was
of the opinion that the
experience of going to prison had a positive effect on Petitioner. Dr. Rosenberg
also testified that
Petitioner has continued to show improvement under his care. Tr.124-125. Dr.
Rosenberg reported that he
has periodically administered unannounced urine drug screen tests on Petitioner
and there has not been any
evidence of use of scheduled controlled substances based on these tests. Tr.
110. This is significant
because it is tangible evidence that Petitioner has made progress in his rehabilitation
since 1984 when he
was abusing drugs.
F. While Petitioner's progress toward rehabilitation is genuine, it is limited.
Although Petitioner has progressed in his rehabilitation, I find that the circumstances
of this case do not
support a conclusion that an exclusion of less than six years is reasonable.
While Dr. Rosenberg expressed the opinion that Petitioner is trustworthy now,
he qualified this by
recommending that Petitioner continues to need "some ongoing psychiatric
supervision", and that he
should continue to be tested for drug use periodically. Tr. 113-114, 120. Dr.
Rosenberg recommended
that this should continue "over a couple of year period of time".
Tr. 127. Petitioner's criminal misconduct
was not only unlawful, but it endangered the health and welfare of others. In
view of the serious damage to
the health of others which can result from the unlawful distribution of controlled
substances, I find that a
margin of safety is necessary to protect Medicare and Medicaid beneficiaries
and recipients from the
possibility that Petitioner might again engage in this conduct.
I am also troubled by Petitioner's testimony before me which shows that he
still has tendencies to
rationalize his misconduct. I recognize that Petitioner stated that he knows
that his misconduct was
"wrong" and "illegal" and he has also expressed remorse
for it. Tr. 153, 174. I am, however, disturbed that
Petitioner persists in characterizing his criminal activities as misjudgments
and the result of the
manipulative behavior of others. Tr. 165-169. This is evidence that Petitioner
still does not accept full
responsibility for his actions.
The I.G. has also brought forward evidence showing that as recently as 1988,
Petitioner presented
approximately 40 prescriptions for medications for himself to a pharmacy in
the State of Michigan without
possessing a Michigan license. Instead, Petitioner used his Missouri license
to write prescriptions for
himself, to be filled by a pharmacy located in Michigan. I.G. Ex. 14/33-37;
Tr. 61-64, 70-71. The I.G.
also cites relevant portions of the Michigan Public Health Code to show that
this conduct is illegal under
Michigan state law. I.G. Post-Hearing Br. 22-25.
Petitioner admits that he used his Missouri license to write prescriptions
for himself and that he had these
prescriptions filled in Michigan in 1988. Tr. 61-64. He points out that these
medications were not for
scheduled controlled substances. Instead, they were non-addictive prescription
medications that Petitioner
used to treat himself for various ailments. P. Post-Hearing Br. 12; see Tr.
70-71. Petitioner also suggests,
through the testimony of Dr. Rosenberg, that it is permissible for a physician
licensed in one state to write
prescriptions using that license in another state. Dr. Rosenberg testified that
on occasion he has used his
medical license in one state to prescribe medications for patients located in
another state. Tr. 97-98.
While I recognize that each state may have enacted provisions which allow persons
licensed in one state to
engage in the limited practice of medicine in another state for certain purposes,
Petitioner has not cited any
specific provisions of the Michigan Health Code or other statutory law of Michigan
to show that his
prescribing activity in 1988 is permissible under Michigan state law. Instead,
Petitioner attempts to excuse
his conduct by pointing out that he did not deceive the pharmacist when he presented
the prescriptions in
question. Petitioner testified that he informed the pharmacist that he resided
in Michigan and that he was
licensed in Missouri. The record also shows that the prescription clearly indicated
that it was written using
a Missouri license number. Petitioner stated that he was not aware that this
prescribing conduct was illegal
and that he relied on the pharmacist to tell him if it was not permissible to
write a prescription for himself
in Michigan using a Missouri license. Tr. 180-181, 69.
I agree that Petitioner's conduct would have been more serious if he had actively
deceived the pharmacist
regarding his licensure status. However, even under the circumstances as Petitioner
describes them, I infer
that this conduct demonstrates a lack of trustworthiness. Petitioner's explanation
that he relied on the
pharmacist to inform him of the legality of writing prescriptions shows that
he did not recognize that he
had a duty to independently ascertain the legal ramifications of his license
suspension in Michigan.
Petitioner's license to practice medicine in Michigan was suspended in 1984.
As recently as 1988,
Petitioner engaged in activities which tested the boundaries of Michigan's prohibition
against practicing
medicine. Petitioner knew that his prescribing conduct was questionable, but
he did not take any
affirmative steps to independently determine whether his activities were permissible.
This shows a reckless
disregard for the law, which I find to be troubling.
To Petitioner's credit, he has participated in a fellowship program with the
Chicago College of Osteopathic
Medicine and he has worked in a rural medicine environment in the State of Nevada
subsequent to his
release from prison. Petitioner testified that in both of these settings he
assisted in providing medical
services to patients under the supervision of licensed physicians. However,
Petitioner also stated that the
patients who received these services may have been beneficiaries or recipients
of Medicare or Medicaid.
Tr. 163-164, 186-188, 193-194. The I.G. points out that it is possible that
Petitioner may have violated his
exclusion sanction in the course of assisting in the provision of services to
patients in these settings. While
the I.G. does not prove that Petitioner violated his exclusion sanction, he
argues that "regardless of whether
the petitioner actually violated his exclusion, the fact that he engaged in
the questionable activity without
making inquiry into whether it was permissible is evidence that petitioner is
not trustworthy". I.G. Post-
Hearing Rep. Br. 4.
Petitioner's conduct would be far more serious if the I.G. had demonstrated
that he violated the exclusion
sanction or that he misled his supervising physicians about the fact that he
has been excluded. However,
even absent a showing that Petitioner violated the exclusion sanction or that
he deceived others about his
exclusion, I am still troubled that he has again shown a propensity to engage
in activities which test the
limits of restrictions placed on him without ascertaining whether it is permissible
to engage in such
activities. Again, this shows a careless disregard for the law.
Having considered all the evidence, I find that an exclusion of seven years
is unreasonable. As early as
1984, Petitioner recognized that he needed to be rehabilitated, and he sought
psychotherapy on his own
initiative. Petitioner again sought psychotherapy on his own initiative in 1990.
Petitioner's treating
psychiatrist has testified that he has made substantial progress in being rehabilitated
and that he has not
abused drugs since he has been under his care. Petitioner has also made extensive
efforts to update his
medical education. While taking continuing education courses does not directly
show that Petitioner is
trustworthy, it is an encouraging indication that Petitioner is sincere about
taking positive steps to better
himself.
However, I do not find that Petitioner's rehabilitation is so complete that
he can be entrusted with caring for
Medicare and Medicaid patients in the near future. In view of the serious nature
of Petitioner's criminal
activity and the potential dangers to Petitioner's future patients should Petitioner
resume his criminal activi-
ties, I find that a lengthy exclusion is justified. Furthermore, Petitioner
still shows destructive tenden-cies
to rationalize his behavior. In addition, he has demonstrated a disturbing tendency
in the recent past to
engage in questionable activities without recognizing his duty to determine
the legal limits of his actions.
Under the circumstances of this case, I find that an exclusion of six years
is reasonable to achieve the
remedial purposes of the Act.
CONCLUSION
Based on the evidence in this case and the law, I conclude that the seven year
exclusion imposed against
Petitioner is excessive and unreasonable, and I modify it to six years.
_________________________________
Charles E. Stratton
Administrative Law Judg
1. The Medicaid program is one of three types of federally-financed State health
care programs from
which Petitioner is excluded. I use the term "Medicaid" to represent
all three of these programs which are
defined in section 1128(h) of the Social Security Act.
2. References to the record and to Departmental Appeals Board cases in this
decision will be cited as
follows:
I.G.'s Exhibit I.G. Ex. (number/page)
Petitioner's Exhibit P. Ex. (number/page)
Petitioner's Pre-Hearing P. Pre-Hearing Br. (page)
Brief
Transcript Tr. (page)
I.G.'s Post-Hearing Brief I.G. Post-Hearing Br. (page)
Petitioner's Post-Hearing P. Post-Hearing Br.
Brief (page)
I.G.'s Post-Hearing Reply I.G. Post-Hearing Rep. Br.
Brief (page)
Findings of Fact and FFCL
Conclusions of Law
Departmental Appeals Board DAB Civ. Rem. (docket
ALJ decisions no./date)
Departmental Appeals Board DAB App. (decision no./
Appellate decisions date)
3. Some of my statements in the sections preceding these formal findings and
conclusions are also findings
of fact and conclusions of law. To the extent that they are not repeated here,
they were not in controversy.
4. There are proposed regulations which, if adopted by the Secretary, would
supersede the regulations
which presently govern exclusions. See Fed. Reg. 12205 (April 2, 1990). The
I.G. urged that I use these
proposed regulations as guidelines to evaluate the reasonableness of the exclusion
imposed and directed
against Petitioner. However, these proposed regulations have not been finally
adopted, and it would not be
appropriate for me to assume that they will be adopted in their proposed form.
Moreover, it is not clear
that, assuming these proposed regulations are adopted, they would apply retroactively
to exclusions
imposed prior to the date of their adoption.
5. These minor modifications are listed on page 5 of the opinion issued by
the Michigan Department of
Licensing and Regulation. I.G. Ex. 7.
6. Although Petitioner was sentenced to 30 months of imprisonment, he was required
to serve only 13
months of this prison term. Tr.159