John J. Tolentino, M.D., Afzal Butt, M.D., and Rajinder S. Uppal, M.D., CR No. 180 (1992)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Cases of:
John J. Tolentino, M.D.,
Afzal Butt, M.D., and
Rajinder S. Uppal, M.D.,

Petitioners,
- v. -
The Inspector General.

DATE: February 26, 1992

Docket Nos. C-92-018,C-92-019,C-92-031

DECISION

By letters dated November 4, 1991, John G. Tolentino, M.D.; Afzal Butt, M.D.; and Rajinder S. Uppal,
M.D., the Petitioners herein, were notified by the Inspector General (I.G.), U.S. Department of Health &
Human Services, that they would be excluded for five years from participation in the Medicare program
and from participation in the State health care programs as defined in section 1128(h) of the Social Security
Act (the Act), referred to in this decision as Medicaid. The I.G. stated that the exclusion was mandated by
section 1128(a)(1) of the Act, based upon Petitioners having been convicted of criminal offenses related to
the delivery of items or services under Medicaid or Medicare.

On April 27, 1990, Petitioners pled guilty and were convicted, in the U.S. District Court, Eastern District of
New York, of violating 42 U.S.C. 1320a-7b(b)(1)(B)d (1988) (section 1128B(b)(1)(B) of the Act). They
admitted to knowingly and willfully soliciting and receiving remuneration for ordering or arranging for the
ordering of items for which payment may be made under the Medicaid or Medicare programs. The
remuneration was received from an officer of the company supplying inhalation therapy equipment which
Petitioners had prescribed and which was reimbursable under Medicaid or Medicare.

Inasmuch as the three cases present almost identical facts, involve the same criminal offense, and advance
the same legal defense (articulated by the same attorney), the cases were consolidated. The I.G. moved for
summary disposition. I conclude that although certain non-outcome-determinative matters of fact -- such
as the precise nature of Petitioners' motivations -- may be controverted, there are no material issues in
dispute, and that summary disposition is appropriate. I further conclude that, under the facts of this case,
the five-year exclusions are mandatory, and, accordingly, enter summary disposition in favor of the I.G.


Applicable Law

Sections 1128(a)(1) and (c) of the Act (codified at 42 U.S.C. 1320a-7 (a)(1) and (c) (1988) make it
mandatory for any individual who has been convicted of a criminal offense related to the delivery of an
item or service under Medicare or Medicaid to be excluded from participation in such programs, for a
period of at least five years. 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 of HHS (or the I.G.) concludes is
guilty of program-related fraud, kickbacks, or related activities. Before a person is excluded pursuant to
these latter provisions, he is entitled to a hearing before an administrative law judge as provided for in
section 1128(f)(2) of the Act.


Findings of Fact and Conclusions of Law 1/

1. At all times relevant herein, Petitioners were licensed physicians in New York state and were Medicare
and Medicaid providers.

2. Petitioners accepted remuneration from an officer of the company supplying inhalation therapy
equipment which Petitioners had prescribed or ordered and which was reimbursable under Medicaid or
Medicare.

3. Petitioners were convicted (after having pled guilty) on April 27, 1990, in the U.S. District Court,
Eastern District of New York, of violating 42 U.S.C. 1320a-7b(b)(1)(B) (section 1128B(b)(1)(B) of the
Act), by knowingly and willfully soliciting and receiving remuneration for ordering or arranging for the
ordering of items for which payment may be made under the Medicaid or Medicare programs. Petitioners
were fined and put on probation.

4. The Secretary of Health and Human Services has delegated to the I.G. the authority to determine and
impose exclusions pursuant to section 1128 of the Act. 48 Fed. Reg. 21662 (May 13, 1983).

5. By letters dated November 4, 1991, Petitioners were notified by the I.G. that they would be excluded for
five years from participation in the Medicare and Medicaid programs.

6. 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).

7. The law proscribes all kickbacks given in exchange for ordering items or services for which payment
may be made under Medicaid or Medicare -- there is no exception allowing a person to receive kickbacks
for medically-justifiable transactions.

8. The mere fact of conviction of a relevant offense triggers exclusion; criminal intent is not required to
bring a conviction within the ambit of section 1128(a)(1).

9. 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.

10. Once a person has been convicted of a program-related criminal offense, exclusion for at least five
years is mandatory.

11. Regardless of the purportedly essential and irreplaceable nature of the services Petitioners render to the
community, and the personal hardships they are suffering, an administrative law judge has no authority to
waive exclusion or to reduce the statutory five-year exclusion which follows a program-related criminal
conviction.


Argument

Petitioners argue that their convictions do not constitute program-related offenses and that, therefore, only
permissive exclusion actions (pursuant to section 1128(b)) could be brought against them. Petitioners
further note (1) that there was an undisputed legitimate medical need for the breathing devices, so they
would have been ordered irrespective of the gifts given Petitioners; (2) that Petitioners themselves neither
billed Medicaid/Medicare for the items at issue, nor had any connection with the supplier's doing so; and
that (3) the exclusions imposed are unduly harsh in light of the absence of intentional wrongdoing,
Petitioners' exemplary professional records of community service (i.e., Dr. Uppal is said to be the only
internist in his neighborhood in New York City who can communicate with Indian, Pakistani, and Afghan
patients in their own tongues; Dr. Tolentino's practice served an economically deprived area and he has
been responsible for a hospital unit of pediatric AIDS patients; Dr. Butt's practice was primarily among
poor geriatric patients), and Petitioners' need to work at their professions to support their dependent
children.


Discussion

First, I note that a guilty plea to a criminal charge satisfies the requirement that a Petitioner have been
convicted within the meaning of the Act. See section 1128(i) of the Act.

As to the argument that the present convictions are unrelated to the delivery of items or services under
Medicaid or Medicare, and thus are not program-related offenses encompassed by the mandatory exclusion
provisions of section 1128(a), this criterion 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). Other relevant precedent holds that a criminal offense is
deemed to be related to the delivery of an item or service under Medicaid or Medicare where the delivery
of such Medicaid or Medicare item or service is an element in the chain of events constituting the offense.
See Larry W. Dabbs & Gary L. Schwendimann, DAB CR151 (1991), and cases cited therein. Finally, the
law under which Petitioners were convicted shows by its very existence and plain language that Congress
has determined that kickbacks impede the proper functioning of the Medicaid and Medicare programs and
the delivery of items and services thereunder. Applying this statutory background and case precedent to
the case at hand, I conclude that the delivery of items under Medicaid/Medicare was an essential and
integral part of Petitioners' criminal conduct and convictions. Without this connection, Petitioners would
not have been offered and taken the kickbacks in question. Consequently, Petitioners' convictions fall
within the parameters of section 1128(a) and mandate exclusion.

Based on the above reasoning, I reject the contention that there was no nexus between Petitioners' criminal
conduct and the delivery of items or services under Medicaid/Medicare, and also find no merit in the
suggestion that the absence of such a connection required the I.G. to proceed under the permissive
exclusion provisions of section 1128(b). 2/

It was also argued that the equipment prescribed was medically necessary, and would have been prescribed
irrespective of the remuneration. However, the law proscribes all kickbacks given in exchange for
ordering items or services for which payment may be made under Medicaid or Medicare -- there is no
exception allowing a person to receive kickbacks for medically-justifiable transactions.

Finally, as to the suggestion that Petitioners were motivated by their patients' best interests when
prescribing the respiratory equipment, that they had no involvement in Medicaid/Medicare reimbursement,
and that they were not influenced in any way by the remuneration received, it can only be said that
Petitioners admitted having knowingly and willfully committed the criminal offense of soliciting and
receiving cash in exchange for ordering or arranging for the ordering of items for which payment may be
made under the Medicaid or Medicare programs. They cannot now challenge their criminal convictions or
deny the motivation to which they admitted. And, in any event, it is the mere fact of conviction of a
relevant offense that triggers exclusion; criminal intent is not required to bring a conviction within the
ambit of section 1128(a)(1). See Richard G. Phillips CR133 (1991): "the conviction, and not the
underlying conduct, is the triggering event which mandates the Secretary to impose and direct an
exclusion." Also, see Dewayne Franzen, DAB 1165 (1990).

Lastly, Petitioners argue that the periods of exclusion imposed upon them should be reduced or waived
altogether in light of the purportedly essential and irreplaceable nature of the services they render to the
community and the personal hardships they are suffering. The law, however, gives the administrative law
judge no authority to waive exclusion or to reduce the statutory five-year exclusion which follows a
program-related criminal conviction. Section 1128(c)(3)(B) provides:

In the case of an exclusion under subsection (a), the minimum period of exclusion shall be not less than
five years, except that...the Secretary may waive exclusion under subsection (a)(1) in the case of an
individual or entity that is the sole community physician or sole source of essential specialized services in a
community. The Secretary's decision whether to waive the exclusion shall not be reviewable. (Emphasis
added.)


Conclusion

The conduct for which Petitioners were convicted mandates five year exclusions pursuant to section
1128(a)(1) of the Act.

____________________________
Joseph K. Riotto
Administrative Law Judge

1. The record of this case consists of seven documentary exhibits submitted by the I.G., Petitioner's brief,
and the I.G.'s brief.

2. To be sure, there is some subject matter overlap between the Act's provision of mandatory exclusion
for any relevant criminal conviction (section 1128(a)(1)) and its authorization of permissive exclusion for
fraud, kickbacks, etc. (sections 1128(b)(7) and 1128B(b)(1)). Nevertheless, case law has established that
the I.G. is not obliged to proceed under section 1128(b), but that once there has been a conviction for a
program-related offense, section 1128(a)(1) is controlling and exclusion must be imposed. See, e.g., Leon
Brown, M.D., DAB CR83, aff'd. DAB 1208 (1990). This rationale is also supported by the Act's
legislative history, which shows that pre-exclusion hearings in (permissive) kickback cases were intended
to allow accused persons the opportunity to explain their actions where no criminal conviction had as yet
occurred. In the case at hand, since proceedings were not instituted until after Petitioner's conviction, it
was appropriate for the I.G. to utilize the mandatory exclusion rule.