Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Cases of:
Niranjana B. Parikh, M.D.,
Mohammed Akhtar, M.D.,
George Tsakonas, M.D.,
Chandra B. Singh, M.D.,
Petitioners,
- v. -
The Inspector General.
DATE: January 7, 1992
Docket Nos. C-414,C-429,C-430,C-449
DECISION
By letters dated July 2 and August 9, 1991, the Inspector
General (I.G.) notified the Petitioners herein, Niranjana
B. Parikh, M.D., Mohammed Akhtar, M.D., George Tsakonas,
M.D., and Chandra B. Singh, M.D., that they were being
excluded for five years from participation in the
Medicare program and from participation in State health
care programs enumerated in Sec.1128(h) of the Social
Security Act (the Act), referred to collectively herein
as Medicaid. These exclusions, the I.G. stated, were
mandated by section 1128(a)(1) of the Act, which was
triggered by each Petitioner's conviction of a criminal
offense related to the delivery of an item under the
Medicaid program.
The specific facts underlying all of the convictions
were that Petitioners authorized the purchase of certain
breathing aids covered by Medicaid. Thereafter, the
supplier of these devices made cash payments to
Petitioners. Petitioners subsequently pled guilty to the
offense of accepting kickbacks with regard to Medicare or
Medicaid claims, in violation of section 1128B(b)(1)(B)
of the Act.
Petitioners contend that since the doctors "played no
role in the delivery of the item or service," their
convictions were not "...related to the delivery of an
item or service under...any State health care program" as
required by the statute. Consequently, the I.G.'s
application of the mandatory exclusion law (section
1128(a)(1)) was inappropriate. Instead, Petitioners
argue, the I.G. should have proceeded under the
permissive exclusion provisions of section 1128(b)(7)
(which makes reference to the substantive offense
described in section 1128B(b)(1)). Had these sections of
the statute been utilized, Petitioners continue, they
would been entitled to pre-termination hearings at which
they could have offered evidence in mitigation of their
offenses. By contrast, where the I.G. proceeds under the
mandatory exclusion provisions of the Act, as he did
here, mitigating factors are irrelevant, since the
minimum period of exclusion is fixed and is brought about
by the mere fact of conviction.
Inasmuch as these appeals involve violations of the same
criminal statute, present similar legal issues, and are
handled by the same counsel, the parties agreed that they
should be consolidated. Since the parties did not
dispute any material facts, I determined that there was
no need for in-person hearings, that the cases could be
decided on the basis of documentary submissions, and that
the exclusions should be upheld.
APPLICABLE LAW
Sections 1128(a)(1) and (c) of the Act (codified at
42 U.S.C. 1320a-7(a)(1) and (c)) make it mandatory for
the Secretary of HHS to exclude from participation in the
Medicare and Medicaid programs, for a period of not less
than five years, any individual who has been convicted of
a criminal offense related to the delivery of an item or
service under Medicare or a State health care program.
Sections 1128(b)(7) and 1128B(b)(1) permit, but do not
mandate, the exclusion from these same programs of any
person whom the Secretary concludes is guilty of fraud,
kickbacks, or certain other prohibited activities.
Section 1128(f)(2) provides that, under most
circumstances, before a person may be excluded pursuant
to these sections, he or she is entitled to a hearing
before an administrative law judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At all times relevant here, Petitioners Niranjana B.
Parikh, Mohammed Akhtar, George Tsakonas, and Chandra B.
Singh were licensed doctors of medicine in the State of
New York, and were Medicare and Medicaid providers.
Joint stipulation.
2. In 1990, each of these four physicians pled guilty to
violating 42 U.S.C. 1320a-7(b)(1)(B) -- codified as
section 1128B(b)(1)(B) of the Act -- by knowingly and
wilfully receiving kickbacks related to the purchase of
medical supplies that were paid for by Medicaid. Joint
stipulation.
3. The Secretary of Health and Human Services has
delegated the authority to determine and impose
exclusions from the Medicare and Medicaid programs,
pursuant to section 1128 of the Act, to the I.G.
Joint stipulation.
4. On July 2 and August 9, 1991, the I.G. formally
notified Petitioners that they were being excluded from
the Medicare and Medicaid programs under section
1128(a)(1) of the Act, as a consequence of their criminal
convictions. Joint stipulation.
5. A criminal conviction for accepting kickbacks for
authorizing the purchase of medical equipment is
sufficiently related to the delivery of an item or
service under Medicare or Medicaid to justify application
of the mandatory exclusion provisions of section
1128(a)(1).
6. The I.G. is under no obligation to proceed under the
discretionary or permissive exclusion provisions of
section 1128(b)(7) against a person who may be suspected
of violating the anti-kickback law. Once such person has
been convicted, though, exclusion is mandatory.
DISCUSSION
First, as to Petitioners' contention that the doctors
played no role in the delivery of an item or service
under Medicaid or Medicare, this standard -- required by
section 1128(a)(1) -- is met where there is a common-
sense connection between a criminal offense and the
Medicaid or Medicare programs. Clarence H. Olson, DAB
CR46 (1989). A person may be guilty of a program related
offense even if he or she did not physically deliver
items or services. Jack W. Greene, DAB 1078 (1989).
Applying these standards to the instant case, it is
concluded that the acts which gave rise to the criminal
convictions of Petitioners herein are integral parts of,
and directly related to, the delivery of items under
Medicaid, thus satisfying the statutory definition and
justifying application of the mandatory exclusion
provisions.
It is undeniable that there can be subject matter overlap
between the mandatory exclusion for criminal conviction
provisions of section 1128(a)(1) and the permissive
exclusions for fraud or kickbacks authorized by
section 1128(b)(7) (which references section
1128B(b)(1)). Nevertheless, there is clear precedent
holding that the Secretary is under no obligation to
proceed under section 1128(b), but that once a person has
been convicted of a program-related criminal offense,
exclusion is mandatory. See e.g., Leon Brown, M.D., DAB
CR83, affd DAB 1208 (1990). There is also precedent
directly relevant to the criminal offense involved here.
Mandatory exclusion based upon a criminal conviction for
accepting kickbacks was sustained by an administrative
law judge and affirmed by an appellate panel of the
Departmental Appeals Board. Betsy Chua, M.D., DAB CR76,
affd DAB 1204 (1990). Support for this rationale is also
derived from the Act's legislative history. As the
I.G.'s brief notes, exclusion hearings in kickback cases
were apparently intended to allow accused persons the
opportunity to clarify and explain their actions in cases
where no criminal conviction had as yet been obtained.
133 Cong. Rec. 20,922 (1987). Thus, inasmuch as the
exclusion proceedings against Petitioners herein were not
instituted until after their criminal convictions, it was
appropriate for the I.G. to invoke the mandatory
exclusion rule.
CONCLUSION
The I.G. committed no error by not proceeding against the
Petitioners under the discretionary or permissive
exclusion provisions of Section 1128(b)(7).
It has not been argued, much less proven, that the
Secretary or the I.G. had "determined" -- prior to their
criminal convictions -- that Petitioners had been
receiving kickbacks. Furthermore, the language of these
statutory provisions, as well as relevant precedent, show
that the use of these provisions is discretionary and
that the Secretary is not obliged to take action against
every person whom there might be grounds to suspect.
However, once Petitioners had been convicted (of offenses
that I have found to be related to the delivery of items
under Medicaid), the mandatory provisions of Section
1128(a)(1) left the I.G. with no option but to exclude
them.
The exclusions are AFFIRMED.
____________________________
Joseph K. Riotto
Administrative Law Judge