Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Seymour H. Rubin, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: May 8, 1992
Docket No. C-439
DECISION
By letter dated July 2, 1991, Seymour H. Rubin, M.D., the Petitioner herein,
was notified by the Inspector
General (I.G.), U.S. Department of Health & Human Services (HHS), that,
pursuant to section 1128(b)(3)
of the Social Security Act (the Act), codified as 42 U.S.C. 1320a-7(b), he would
be excluded for a period
of five years from participation in the Medicare program and from participation
in the State health care
programs which are defined in section 1128(h) of the Act (referred to in this
Decision as Medicaid). The
basis for the exclusion was Petitioner's conviction of an offense relating to
the prescription of controlled
substances.
Petitioner filed a timely request for review of the I.G.'s action by an administrative law judge.
The I.G. moved for summary disposition of the case. Petitioner concurred with the request.
STATUTE AND REGULATIONS
Section 1128(b)(3) of the Act deals with permissive exclusions and allows,
but does not require, the
Secretary of HHS, or his designee, to exclude from the Medicare/Medicaid programs,
inter alia, individuals
or entities convicted of criminal offenses relating to the unlawful manufacture,
distribution, prescription, or
dispensing of controlled substances.
The I.G. maintains that the HHS rules on exclusions published on January 29,
1992 (57 Fed. Reg. 3298)
are applicable here. In particular, 42 C.F.R. 1001.401, dealing with the length
of exclusions and
aggravating and mitigating factors, was said to govern this case. The I.G. notes
that the Supreme Court has
found that a court must apply the law in effect at the time it renders its decision,
unless doing so would
result in manifest injustice, or there is statutory direction or legislative
history to the contrary (Bradley v.
School Board of Richmond, 416 U.S. 696 (1974)).
The regulation just cited, 42 C.F.R. 1001.401, establishes a "baseline"
period for exclusions -- which was
not present in prior regulations -- of three years, and sets forth aggravating
and mitigating factors that can
alter the length of exclusion.
The I.G. asserts that applying this regulation to the case at hand would result
in no injustice and would
effectuate Congressional intent to protect the Medicaid/Medicare programs from
drug crime. Therefore,
the I.G.'s position is that this regulation is controlling and that it requires
the administrative law judge to
respect the baseline exclusion. Inasmuch as the I.G. deemed the aggravating
factors described in 42 C.F.R.
1001.401(c)(2)(i) & (ii) to be present, he concluded that the facts supported
a five-year exclusion.
Petitioner states that the new regulations, published subsequent to the imposition
of this exclusion, are not
applicable. This is because it would be unjust, he maintains, to judge him on
the basis of standards which
were unknown when the acts giving rise to the subject proceeding allegedly occurred.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/
1. At all times relevant herein, Petitioner was a physician licensed by the
State of Maryland and was a
Medicaid provider. I.G. Ex. 4.
2. In 1989, Maryland authorities investigated Petitioner's professional activities. I.G. Ex. 4-8.
3. Petitioner was charged and pled guilty in the Maryland Circuit Court, Baltimore
City, to a misdemeanor
offense of "knowingly and intentionally prescribing controlled substances
[for more than five years],
outside the course of his professional duties and in violation of the standards
of the medical profession."
I.G. Ex. 2 & 3; P. Ex. 1.
4. On January 31, 1991, Petitioner was sentenced to two years probation, 300
hours of community service,
payment of $37,976.71 (constituting triple damages) in restitution to Medicaid,
and a $10,000 fine. I.G.
Ex. 1.
5. Section 1128(b) of the Act gives the Secretary of HHS the authority to exclude
from participation in the
Medicare and Medicaid programs any person convicted of a criminal offense related,
inter alia, to
controlled substances.
6. The Secretary delegated to the I.G. the duty to direct exclusions pursuant
Section 1128. 48 Fed. Reg.
21662 (May 13 1983).
7. By letter dated July 2, 1991, Petitioner was notified by the I.G. that,
pursuant to section 1128(b)(3) of
the Act it had been decided that he should be excluded for a period of five
years because of his conviction
of an offense relating the prescription of controlled substances.
8. During the state court proceedings, Petitioner and the prosecution agreed
to and signed a document
titled Agreed Statement of Facts which stated that if the case had gone to trial,
"...the State of Maryland
would have called witnesses and introduced documentary and testimonial evidence
to establish...[the
factual predicate of the charges against Petitioner]." I.G. Ex. 4.
9. The Agreed Statement of Facts constitutes a recitation of provable and accurate
facts relating to
Petitioner's conduct which led to his conviction and which Petitioner acknowledged.
As such, it is credible
evidence in the present proceeding.
10. The evidence of Petitioner's conduct adduced by the I.G. (meaning, primarily,
the Agreed Statement of
Facts and the police investigator's report), being consistent, convincing, largely
admitted, and unrebutted
by any other factual evidence, constitutes preponderant evidence of the acts
underlying Petitioner's
conviction.
11. The I.G. committed no error in relying on the evidence adduced in the criminal
court, and was not
obliged to produce testimony or other new evidence to reprove facts Petitioner
previously admitted.
12. Petitioner gave very cursory, or no, examinations but nevertheless wrote
multiple prescriptions for
powerful anti-anxiety or tranquillizing drugs, for a fee. I.G. Ex. 4 & 5.
13. Petitioner disregarded generally accepted medical practice by prescribing
drugs which were
inappropriate to a patient's condition, e.g., long-term use of amphetamines
and/or anorectics or Ritalin by
hypertensive individuals (Edwards; Goines 2/). I.G. Ex. 4.
14. Petitioner disregarded generally accepted medical practice by prescribing
drugs which contributed to
patients' developing dependencies (Plumley). I.G. Ex. 4.
15. Petitioner disregarded generally accepted medical practice by prescribing
for drug abusers potentially
addictive substances such as codeine, anti-anxiety drugs, and hypnotics (Richmond;
Kopelnick). I.G. Ex.
4.
16. Petitioner disregarded generally accepted medical practice by continuing
prescriptions for excessive
periods (Edwards; Plumley). I.G. Ex. 4.
17. Petitioner disregarded generally accepted medical practice by writing prescriptions
without having
recently seen the patient (Chetelat). I.G. Ex. 4.
18. Petitioner falsified records to make it appear that he saw patients (Edwards)
far more often than he
actually did. I.G. Ex. 4.
19. Petitioner charged patients for consultations and prescriptions (Edwards;
Plumley; Howard; Goines),
even though the doctor's entire reimbursement was supposed to have come from
Medicaid. I.G. Ex. 4.
20. Petitioner's prescribing of drugs was reviewed by the Medical and Chirurgical
Faculty of Maryland
Committee on Drugs (a statewide professional body) which deemed his practices
potentially harmful and
concluded that he needed instruction in controlled substances. I.G. Ex. 4.
21. Petitioner declined an educational program proposed by the Medical and
Chirurgical Faculty. I.G. Ex.
4.
22. For a period of at least five years, Petitioner knowingly and intentionally
prescribed controlled
substances in a manner inconsistent with accepted medical standards and professional
responsibilities.
23. Petitioner prescribed drugs that were harmful to his patients, or, at the
very least, manifested
indifference to their well-being.
24. Petitioner's actions brought him substantial profit, in improper fees from
patients and from unlawful
payments from Medicaid, thereby harming both the program and its beneficiaries.
25. Petitioner's misconduct is exacerbated by the factors noted: duration of
the misconduct, profit, threat to
patients' health, and financial harm to the Medicaid program and its beneficiaries.
26. The new HHS regulation codified at 42 C.F.R. 1001.401 is inapplicable to the instant case.
27. The purpose of section 1128 is remedial in nature -- to protect federally-funded
health care programs
and their recipients from untrustworthy providers.
28. The provider has the burden of proving that he is no longer a threat.
29. Petitioner's conduct was serious and a significant threat to Medicaid and
the program's recipients.
Nothing in the record indicates that his misdeeds were the result of unique
circumstances which have
subsequently changed. Furthermore, Petitioner has expressed no meaningful remorse
and has declined the
re-education offered him. There is, consequently, no reason to believe him any
more trustworthy at this
time than he was when he admittedly violated the law.
ARGUMENT
Petitioner argues that, although he entered a guilty plea in the Maryland court,
he did not "...admit to all of
the facts asserted by the prosecuting attorney." Specifically, Petitioner
maintains that, at his court
appearance, he did no more than acknowledge that the prosecutor would have introduced
certain witnesses
and evidence; he did not agree that such evidence would have supported a conviction.
His attorney
analogized Petitioner's situation to North Carolina v. Alford,
400 U.S. 25 (1970), in which it was held that a defendant may consent to the
imposition of a criminal
sentence even if he does not admit doing the acts which constitute the crime.
In this case, Petitioner
explains, he was in poor health and could not withstand the stresses of a trial.
Therefore, he chose not to
dispute the charges in order to "put the matter behind him."
Next, Petitioner claims that the I.G. has not proven his case. In particular,
he deems legally insufficient the
I.G.'s relying on the Agreed Statement of Facts, rather than adducing any new
or independent evidence to
show that a five-year exclusion is warranted. As examples of failures of proof
and/or deficiencies in the
I.G.'s case, Petitioner notes that the number of times he is claimed to have
misprescribed drugs was not
established or even alleged; additionally, the charge that he endangered program
beneficiaries is
unsupported by medical testimony. As to the monetary aspects of the case against
him, Petitioner argues
that the record is devoid of evidence of financial gain on his part; furthermore,
he emphasizes that the
restitution he agreed to represented triple damages rather than actual losses
to the program.
Petitioner also alleges that the I.G. ignored mitigating evidence which would
have benefitted him. This
material, which Petitioner introduced as his Exhibit 1, consists of statements
indicating that he worked at
free clinics, taught medicine, and had been a consultant to the State of Maryland
on disability
determinations. There were also testimonials of appreciation from colleagues
and patients. Lastly,
Petitioner asserts that a five-year exclusion is too severe when his circumstances
are compared to other
cases reviewed by the Departmental Appeals Board, particularly Ralph W. Wilkinson,
et al., DAB CR67
(1990); Leonard N. Schwartz, DAB CR36 (1989); Arthur D. Freiberg, D.P.M., DAB
CR63 (1990); and
Robert A. Woolhandler, DAB CR127 (1991).
The I.G.'s position is that Petitioner was convicted of a serious criminal
offense which resulted in harm to
the Medicaid program and its participants. This criminal behavior already has
resulted in Petitioner's
losing his medical license and authorization to prescribe drugs. To ensure Petitioner's
trustworthiness and
to deter others, the I.G. reasons, a five-year exclusion is entirely appropriate.
The I.G. further argues that Maryland rules require judges, before accepting
guilty pleas, to ensure that a
factual basis for such pleas exists. Thus, the Agreed Statement of Facts that
Petitioner accepted in court
should be regarded as an accurate and reliable document.
DISCUSSION
First, I conclude that applying the new HHS regulations to the instant case
would be unwarranted. I concur
with the precedent established by other judges of this office that the criteria
relating to the length of
permissive exclusions that are included in such regulations control the I.G.
when making the initial
decision but are not applicable to de novo administrative reviews of exclusion
actions. Charles J. Barranco,
M.D., DAB CR187 (1992);
Stephen J. Willig, M.D., DAB CR192 (1992).
Next, I find that Petitioner's circumstances satisfy the statutory requirements
of section 1128(b)(3) in that
he was convicted, 3/ pursuant to state law, of a criminal offense which, as
the evidence clearly shows, is
related to the unlawful prescription of controlled substances.
However, this is not the type of case in which the mere showing that a relevant
criminal conviction has
occurred terminates the factual inquiry and triggers the imposition of a mandatory
sanction. Rather, since
any exclusion imposed herein is "permissive," it is necessary to insure
that the period of exclusion is
reasonably appropriate to Petitioner's conduct and circumstances. To determine
this, one must consider all
relevant facts, including the actual conduct underlying the criminal conviction.
Sheldon Stein, M.D., DAB
CR144 (1991); Joel Davids, DAB CR137 (1991).
In the record of this case, evidence of Petitioner's conduct is found primarily
in two places: the investiga-
tive report of the Maryland State Police and the Agreed Statement of Facts in
which Petitioner and the
Maryland prosecutor jointly set forth the facts that resulted in Petitioner's
criminal conviction.
With regard to the Agreed Statement of Facts, I conclude that the interpretation
of this document now
urged by Petitioner is at variance with common sense, well-established criminal
procedure, and Maryland
law. Petitioner was advised by the state judge that the Agreed Statement of
Facts he had signed would be
treated as "...an accurate statement of events..." and "...what
the witnesses would have testified to had the
case gone to trial." Petitioner was then asked "...your signature
to that statement of facts indicates it is an
accurate statement; is that correct?" Petitioner replied "that is
true." Petitioner's attorney also indicated to
the state judge that the statement was accurate, declaring that no additions
or alterations to such statement
were called for.
As to the legal context, the State of Maryland requires that a court receiving
a guilty plea to a criminal
charge must conduct an inquiry to determine that the defendant understands the
nature of the charges and
the consequences of his plea, and to ascertain whether there is a factual basis
for such plea -- i.e., whether
the defendant's acts legally constitute the offense he wishes to plead guilty
to. State v. Thornton, 424 A.2d
349 (Md. Ct. Spec. App., 1987). The record makes it clear that the judge presiding
over Petitioner's case in
the Maryland Court found that a factual basis for the plea was present.
It is evident to me, in light of the transcript evidence and relevant Maryland
law, that Petitioner and his
counsel were being asked by the Court whether they had any objections to the
exposition of substantive
facts set forth in the document. It would have been absurd for the judge to
have asked a defendant whether
a statement of facts was accurate if such statement only purported to reflect
the views of the prosecution.
In sum, I find that Petitioner, his attorney, and the prosecutor agreed that
the Agreed Statement of Facts
constitutes a recitation of provable and accurate facts relating to Petitioner's
conduct which led to his
conviction. As such, it is credible evidence in the present proceeding.
I further conclude that the substantive evidence of Petitioner's conduct adduced
by the I.G. herein
(meaning, primarily, the Agreed Statement of Facts and the police investigator's
report), being consistent,
convincing, largely admitted, and unrebutted by any other factual evidence,
constitutes preponderant
evidence of the acts underlying Petitioner's conviction. I reject Petitioner's
argument on appeal that the
I.G. was somehow wrong to rely on the evidence adduced in the criminal court
or that the I.G. was obliged
to produce expert or other testimony, or other new evidence, to independently
prove what Petitioner had
already admitted.
The police report indicates that an investigator visited Petitioner's office
pretending to be a patient. He
found that Petitioner gave very cursory, or no, examinations but nevertheless
wrote multiple prescriptions
for powerful anti-anxiety or tranquillizing drugs, for a fee.
The Agreed Statement of Facts sets forth accounts of several persons who were
under Petitioner's care over
a number of years. It reveals that, at least since 1985, he disregarded generally
accepted medical practice
(1) by prescribing drugs which were either inappropriate to a patient's condition,
e.g., long-term use of
amphetamines and/or anorectics or Ritalin by hypertensive individuals (Edwards;
Goines), or which
resulted in patients' developing dependencies (Plumley); (2) by prescribing
for drug abusers addictive
substances such as codeine, anti-anxiety drugs, and hypnotics (Richmond; Kopelnick);
(3) by continuing
prescriptions for excessive periods (Edwards; Plumley); and (4) by writing prescriptions
without having
recently seen the patient (Chetelat). Petitioner also (5) by falsifying records
to make it appear that he saw
patients (Edwards) far more often than he actually did; and (6) by charging
patients for consultations and
prescriptions (Edwards; Plumley; Howard; Goines), even though the doctor's entire
reimbursement was
supposed to have come from Medicaid.
The Agreed Statement of Facts further indicates that Petitioner's prescribing
of drugs was reviewed by the
Medical and Chirurgical Facility of Maryland Committee on Drugs (a statewide
professional body), which
deemed his practices potentially harmful and determined that he needed instruction
in controlled
substances. Petitioner, however, declined a proposed educational program.
Thus, the evidence indicates that Petitioner prescribed drugs that were harmful
to his patients, or, at the
very least, that he was indifferent to patients' well-being, and that he acted
knowingly. (Contrary to
Petitioner's contention, it is not essential to this Decision that the exact
number of his prescription abuses
be established.) The evidence further shows that these actions brought him considerable
profit, in improper
fees from patients and from unlawful payments from the Medicaid program (the
magnitude of this latter
sum may be estimated from the $37,976.71 triple-damage reimbursement Petitioner
agreed to pay).
Based upon the above facts and reasoning, I conclude that preponderant evidence
shows that Petitioner
knowingly and intentionally prescribed controlled substances in a manner inconsistent
with accepted
medical standards.
The gravity of Petitioner's misconduct is exacerbated by the facts that he
committed offenses of this nature
over a period of at least five years, that he profited
substantially from these practices, at the expense of both the Medicaid program
and his patients, and that
his actions were potentially injurious to the health of the persons under his
care.
It must be noted, though, that some patients received devoted care from him
4/, for which they are very
grateful, and that at least some of his professional colleagues think highly
of him.
It is well-established that the purpose of section 1128
of the Act is remedial in nature: to protect federally-funded health care programs
and their recipients from
untrustworthy providers. It is the provider's obligation to demonstrate that
he is no longer a threat. S. Rep.
No. 109, 100th Cong., 1st Sess., 1987 U.S. Code Cong. & Admin. News 682.
In this regard, I find that Petitioner's misdeeds went to the very heart of
his professional responsibilities as
a doctor in that he used the authority he had been given to prescribe drugs
not to cure his patients and
enhance their well-being, but rather to further an improper and unlawful scheme
in which patients were, or
could have been, harmed, in body and purse. Although Petitioner claims he was
ill, and grieving over the
death of his wife, it is clear that his pattern of abuse was no passing departure
from good behavior, but was
a continuing course of misconduct that persisted for at least five years, bringing
Petitioner profits
amounting to thousands of dollars. The good care that some of Petitioner's patients
received over the years
apparently coexisted with his unlawful behavior and does not demonstrate a change
in attitude or behavior
indicative of rehabilitation. Lastly, it is significant that Petitioner's abuses
did financial harm to the
Medicaid program itself, as well as to individual recipients.
Thus, Petitioner's conduct was serious and a significant threat to Medicaid
and the program's recipients.
Nothing in the record indicates that his misdeeds were the result of unique
circumstances which have
subsequently changed. Furthermore, Petitioner has expressed no meaningful remorse
and has declined the
re-education offered him. There is, consequently, no reason to believe him any
more trustworthy at this
time than he was when he admittedly violated the law.
CONCLUSION
For the reasons stated above, I conclude that, under the facts of this case,
the duration of the exclusion
imposed by the I.G. comports with legislative intent and is not excessive 5/
or unreasonable.
____________________________
Joseph K. Riotto
Administrative Law Judge
1. Petitioner and the I.G. both submitted documentary evidence and briefs.
These are referred to in this
decision as P. Ex...., I.G. Ex...., P. Br...., and I.G. Br....
2. The parenthetical references in this and the following six findings refer
to particular individuals
treated by Petitioner.
3. Even if Petitioner had entered an Alford plea -- which is suggested in one
brief, but which is not
apparent from the record of the court proceedings -- it would still satisfy
the requirement of sections
1128(b)(3) and 1128(i) that there be a "conviction." Daniel B. Salyer,
R.Ph., DAB CR106 (1990).
4. This was established by written statements from the patients. The I.G. neither
objected to nor rebutted
this evidence.
5. The cases cited by Petitioner are too dissimilar in too many respects to
the present action to support a
finding that the exclusion advocated by the I.G. herein is disproportionately
severe when compared with
past practice.