Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Arthur V. Brown, M.D., Petitioner,
- v. -
The Inspector General.
DATE: August 17, 1992
Docket No. C-252
Decision No. CR226
DECISION
On April 18, 1990, the Inspector General (I.G.) notified
Petitioner that he was being excluded from participation
in the Medicare and State health care programs for a
period of ten years, pursuant to section 1128(a)(1) of
the Social Security Act (Act). The I.G. advised
Petitioner that he was being excluded as a result of his
conviction of a criminal offense related to the delivery
of an item or service under the Medicaid program.
By letter dated June 5, 1990, Petitioner requested a
hearing and the case was assigned to Administrative Law
Judge Charles E. Stratton for hearing and decision. At
the prehearing conference of November 1, 1990, counsel
for Petitioner moved for, and was granted, a stay so
that the parties could pursue settlement. The case was
reassigned to me on April 15, 1991. On April 26, 1991,
I ended the stay and conducted a prehearing telephone
conference at which I established a schedule through
which the case would proceed to hearing on October 22,
1991. Later, by joint request of the parties, I
continued the hearing to February 12, 1992. On February
12, 1992, I held an in-person hearing in New York, New
York. The parties submitted post-hearing briefs and
reply briefs.
I have considered the evidence, the parties' arguments,
and the applicable laws and regulations. I conclude
that the ten year exclusion imposed and directed against
Petitioner by the I.G. is reasonable.
ISSUES
The issues in this case are:
1. Whether Petitioner was convicted of a criminal
offense related to the delivery of a health care item or
service within the meaning of section 1128(a)(1).
2. Whether an exclusion of ten years is reasonable under
the facts and circumstances of this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The regulations published on January 29, 1992 at 57
Fed. Reg. 3298 et seq. (42 C.F.R. 1001 et seq.) are not
applicable to this case. Charles J. Barranco, M.D., DAB
CR187 (1992); Bruce G. Livingston, M.D., DAB CR202
(1992); Syed Hussaini, DAB CR193 (1992); Steven Herlich,
DAB CR197 (1992); Stephen J. Willig, DAB CR192 (1992);
Sukumar Roy, M.D., DAB CR205 (1992); Aloysius Murcko,
M.D., DAB CR189 (1992); Narinder Saini, M.D., DAB CR217
(1992).
2. At all times relevant to this case, Petitioner was a
licensed physician in the State of New York, engaged in
general practice. I.G. Ex. 3/1.
3. Muneti Ambulette Service Corporation (Muneti) was a
Medicaid provider of ambulette services. I.G. Ex. 2.
4. New York State regulations require that a health care
provider or his authorized representative must receive
prior approval from the Medicaid agency before providing
ambulette service. The health care provider is required
to state the medical reason as to why ambulette
transportation is necessary. I.G. Ex. 1/2-3; Tr. at 94-
5.
5. From approximately March, 1985 to approximately
October, 1985, Petitioner was involved in a conspiracy
with his brother, Stanley Brown, whereby they requested
and received a kickback of $12.00 for each patient they
referred to Muneti for ambulette transportation.
Petitioner and his brother received a total of $2,700 in
bribes and kickbacks from Muneti. I.G. Exs. 3, 4.
6. On February 24, 1988, Petitioner was convicted, in
the United States District Court for the Southern
District of New York, of two counts of conspiracy to
solicit and receive Medicaid kickbacks and actually
receiving Medicaid kickbacks in violation of section
1128B(b)(1) of the Act. Petitioner was sentenced to
probation on each count for three years. Petitioner's
probation terms were made to run concurrently. I.G. Exs.
1, 4.
7. On May 7, 1987, Petitioner was found guilty, in a New
York State court, of 19 counts of offering a false
instrument for filing in the first degree and for billing
Medicaid for services to patients which Petitioner did
not perform. The false Medicaid claims submitted by
Petitioner exceeded $8,000 and occurred during the period
January 1980 to July 1983. Petitioner was also found
guilty of two counts of grand larceny. I.G. Exs. 6 and
7.
8. The State trial judge set aside the jury's verdict as
to the 19 counts of filing a false instrument as being
against the weight of the evidence. However, the trial
judge was subsequently reversed on appeal, and
Petitioner's conviction for 19 counts of filing a false
instrument was reinstated. I.G. Ex. 7; I.G. R. Br. 5; P.
Br. 3.
9. Petitioner's conviction for two counts of grand
larceny was modified on appeal. The first larceny count
was dismissed and the second count was reduced to petit
larceny. Petitioner was sentenced on the petit larceny
count to three years probation and a fine of $1,000.
People v. Arthur Brown, 159 A.S.2d 716, 553 N.Y.S.2d 776
(2d Dept. 1990); Tr. at 74; P. Ex. 12; P. Br. at 1, 2;
I.G. Ex. 8/8.
10. Petitioner was sentenced to five years probation for
his conviction on the 19 counts of offering a false
instrument for filing. I.G. Ex. 8/9.
11. On May 23, 1983, Petitioner was found guilty by a
New York State court of criminal contempt for failure to
produce patient records in accordance with a grand jury
subpoena. The court sentenced Petitioner to 10 days in
jail. I.G. Ex. 9; Tr. 133.
12. On July 18, 1983, Petitioner's conviction for
contempt was subsequently upheld on appeal. I.G. Ex. 10.
13. Petitioner was convicted of a criminal offense
within the meaning of section 1128(a)(1) and 1128(i) of
the Act. FFCL's 5-8.
14. Petitioner was convicted of a criminal offense
related to the delivery of an item or service under the
Medicaid program, within the meaning of section
1128(a)(1) of the Act.
15. The Secretary of the United States Department of
Health and Human Services (the Secretary) delegated to
the I.G. the authority to determine, impose, and direct
exclusions pursuant to section 1128 of the Act.
16. The I.G. properly excluded Petitioner from
participation in the Medicare and Medicaid programs for a
period of at least five years as required by the minimum
mandatory exclusion provisions of sections 1128(a)(1) and
1128(c)(3)(B) of the Act.
17. The remedial purpose of section 1128 of the Act is
to protect federally-funded health care programs and
their beneficiaries and recipients from providers who
have demonstrated by their conduct that they cannot be
trusted to handle program funds or treat beneficiaries
and recipients.
18. Petitioner has demonstrated a consistent pattern of
receiving kickbacks and filing false claims for a lengthy
period of time from January 1980 to July 1983 and March
1985 to October 1985, a period of approximately four
years. FFCL's 5 - 10.
19. The financial loss to the Medicaid program resulting
from Petitioner's criminal misconduct amounted to at
least $10,700, a significant amount of money. FFCL's 5,
7.
20. By a decision dated January 31, 1984, the New York
State Department of Social Services (NYSDSS) excluded and
disqualified Petitioner from participating in the New
York State Medical Assistance Program (NYMAP), ordered
restitution in the amount of $1,200,817.38 ($1,151,633.42
plus interest) and found that on May 23, 1983, Petitioner
was convicted in a criminal contempt proceeding (pursuant
to Section 750(a)(3) of the New York Judiciary Law)
affirmed by the Appellate Division on November 15, 1983,
and informed him that he could not request reinstatement
for 10 years. I.G. Ex. 13.
21. Both the NYSDSS proceedings and Petitioner's
criminal contempt conviction are significant factors
evidencing Petitioner's lack of trustworthiness to be a
program provider.
22. Petitioner places much of the blame for his problems
on a former secretary's incompetence and unfamiliarity
with Medicaid billing procedures. Tr. 125.
23. That Petitioner places some of the blame on his
former secretary and inadvertent billing errors indicates
that he does not fully appreciate nor comprehend the
willful and fraudulent nature of his actions.
24. Petitioner's conviction for criminal contempt
demonstrates a tendency to conceal his improprieties
regarding the billing and treatment of Medicaid patients.
FFCL 11.
25. The serious nature of Petitioner's conviction in
federal court is reflected in the fact that, based on
that conviction, his license to practice medicine in the
State of New York was suspended for one year. Tr. 124.
26. The serious nature of Petitioner's conduct is
reflected in the fact that NYSDSS excluded him from
participating in NYMAP for a minimum of 10 years. FFCL
20.
27. Petitioner has demonstrated a consistent pattern of
initiating and committing fraudulent acts which are
harmful to the Medicaid program and which show a high
degree of culpability. FFCL's 18, 22 - 24.
28. The review procedures outlined by Petitioner's
current office manager, Ms. Joan Levy, will be
insufficient to protect the program from the type of
deliberate fraud perpetrated by Petitioner in the past.
Tr. 110 - 112.
29. A lengthy exclusion is needed in this case to
satisfy the remedial purposes of the Act.
30. The ten year exclusion imposed and directed by the
I.G. is reasonable.
RATIONALE
1. Petitioner was "convicted" of a criminal offense
related to the Medicare or Medicaid programs.
Section 1128(a)(1) of the Act mandates the exclusion of
individuals who have been "convicted" of a criminal
offense "related to the delivery of an item or service"
under the Medicare or Medicaid programs. On February 24,
1988, Petitioner was convicted in federal court of
conspiracy to solicit and receive Medicaid kickbacks and
actually receiving Medicaid kickbacks, in violation of
section 1128B(b)(1) of the Act. FFCL 6. Petitioner
received a sentence of three years probation. Id.
Petitioner's conviction stemmed from his receipt of a
kickback of $12.00 for each patient he and his brother
conspired to refer and actually referred to Muneti
Ambulette Service Corporation. FFCL 5.
Petitioner does not contest that he was convicted of a
criminal offense but seems to contend it is not program-
related, due to the absence of "false or unnecessary
billings" or "actual loss to the federal treasury based
on any conduct of Dr. Arthur Brown". P. Br. at 7.
Petitioner's argument is without merit.
There is no doubt that Petitioner was convicted of a
criminal offense within the meaning of section 1128(a)(1)
of the Act. Section 1128B(b)(1), the specific provision
of law, that Petitioner was convicted of violating,
involved the Medicaid program. Moreover, an appellate
panel of the Departmental Appeals Board recently held in
Niranjana B. Parikh, M.D. et al., DAB 1334 (1992) that a
conviction for accepting kickbacks for authorizing the
purchase of medical equipment was sufficiently related to
the delivery of an item or service under Medicare or
Medicaid to support an exclusion under section 1128(a)(1)
of the Act. In rejecting arguments that the excluded
provider played no role in the delivery of the items, but
only prescribed them, the panel relied on the plain
meaning of sections 1128B(b)(1) and 1128(a)(1) of the Act
and the common sense connection between the criminal
offense and delivery of program items and services. The
panel also rejected the argument there was "no fraud" or
the programs were not "victimized and harmed" as a result
of the kickbacks. Parikh at 5 - 6.
Additionally, the anti-kickback provisions of the Act
were enacted to protect the Medicare and Medicaid
programs from the increased costs or abusive practices
which result from health care decisions affected by
provider self-interest, rather than by legitimate
considerations such as cost, quality, and necessity of
services. Napoleon S. Maminta, M.D., DAB 1135 (1990);
Hanlester Network, et al., DAB 1275 at 20 (1990); see,
Parikh at 6. One obvious concern that is being remedied
by these provisions is that kickbacks for program
services will generate services that are not properly
based on need, cost, or quality. Such services have an
adverse financial impact on the program and may have an
equally adverse impact on the quality of care that
beneficiaries and recipients receive. This is the
precise reason that Congress made program-related
kickbacks a criminal act under section 1128B(b)(7), which
provides the I.G. with authority to exclude under section
1128(a)(1) and provides a separate basis for exclusion
(when there is no conviction) under section 1128(b)(7) of
the Act.
In sum, Petitioner's federal criminal conviction for
receiving kickbacks in connection with ambulette
transportation services rendered under the Medicaid
program is a program-related conviction under section
1128(a)(1) of the Act.
2. The I.G. was required to exclude Petitioner for a
minimum period of five years in this case.
I have previously found that Petitioner was convicted of
a criminal offense related to the delivery of an item or
service under the Medicaid program, within the meaning
of section 1128(a)(1) of the Act. Thus, the I.G. has
authority to impose and direct an exclusion against
Petitioner pursuant to sections 1128(a)(1) and
1128(c)(3)(B) of the Act. Congress has mandated that
the minimum exclusionary period be five years.
3. Regulations published by the Secretary on January 29,
1992 are not applicable to this case.
On January 29, 1992, the Secretary published new
regulations (Parts 1001 - 1007) pertaining to his
authority under the Medicare and Medicaid Patient and
Program Protection Act (MMPPPA), Public Law 100-93, to
exclude individuals and entities from reimbursement for
services rendered in connection with the Medicare and
Medicaid programs. These regulations also included
amendments to the civil money penalty authority of the
Secretary under the MMPPPA. For purposes of this
proceeding, the specific regulatory provisions relating
to mandatory exclusions under section 1128(a)(1) of the
Act (section 1001.102) and appeals of such exclusions
(Part 1005) must be considered in terms of their
applicability to this case.
The I.G. argues that the new regulations became effective
upon publication on January 29, 1992. I.G. Br. 3.
Petitioner argues that the new regulations should not be
applied to this case because the hearing request was made
prior to the publication of the new regulations. Tr.
143.
I conclude that my review of the reasonableness of the
exclusion imposed and directed against Petitioner is not
governed by the new regulations' criteria for determining
exclusions under section 1128(a)(1). The regulations
contained in Part 1001 of the new regulations, and 42
C.F.R. 1001.102 in particular, were not intended by the
Secretary to govern hearings as to the reasonableness of
exclusion determinations. Bruce G. Livingston, D.O., DAB
CR202 (1992) (Livingston); Charles J. Barranco, M.D., DAB
CR187 (1992) (Barranco); Syed Hussaini, DAB CR193 (1992);
Steven Herlich, DAB CR197 (1992); Stephen J. Willig, DAB
CR192 (1992); Sukumar Roy, M.D., DAB CR205 (1992);
Aloysius Murcko, M.D., DAB CR189 (1992); Narinder Saini,
M.D., DAB CR217 (1992) (Saini). Even if the Part 1001
regulations do govern such hearings, an appellate panel
of the Departmental Appeals Board recently held they do
not apply in cases involving exclusion determinations
made prior to the regulations' publication date. Behrooz
Bassim, M.D., DAB 1333 at 5 - 9 (1992).
I further conclude that it was not the Secretary's intent
to retroactively apply the new regulations to unlawfully
strip parties, including Petitioner, of previously vested
rights. Therefore, the new Part 1001 regulations were
not intended to apply to cases pending as of the date of
their publication (assuming they establish criteria for
administrative review of exclusions). I have previously
addressed this issue in depth in my decisions in Barranco
at 16 - 27 and Livingston at 8 - 10. ALJ Steven T.
Kessel has addressed this issue in depth in his decision
in Saini at 11 - 19. For purposes of this case, I
incorporate the rationale in Barranco, Livingston and
Saini that Petitioner's de novo hearing rights would be
substantially adversely affected and it would be
manifestly unjust to apply the new regulations.
4. A ten year exclusion is appropriate and reasonable.
Since the minimum mandatory exclusion of five years is
applicable to Petitioner, the issue before me is whether
the I.G. is justified in excluding Petitioner for ten
years. Resolution of this issue depends on analysis of
the evidence of record in light of the remedial purposes
of the Act. Lakshmi N. Murty Achalla, M.D., DAB 1231
(1991); Joel Davids, DAB 1283 (1991); Robert Matesic,
R.Ph., d/b/a Northway Pharmacy, DAB 1327 (1992).
Congress enacted the exclusion law to protect the
integrity of federally funded health care programs.
Among other things, the law is designed to protect
program beneficiaries and recipients from individuals who
have demonstrated by their behavior that they threaten
the integrity of federally funded health care programs or
that they could not be entrusted with the well-being and
safety of beneficiaries and recipients. S. Rep. No. 109,
100th Cong., 1st Sess., reprinted in 1987 U.S.C.C.A.N.
682.
An exclusion imposed and directed pursuant to section
1128 of the Act advances this remedial purpose. The
principal purpose is to protect programs and their
beneficiaries and recipients from untrustworthy providers
until the providers demonstrate that they can be trusted
to deal with program funds and to properly serve
beneficiaries and recipients. As an ancillary benefit,
the exclusion deters other providers of items or services
from engaging in conduct which threatens the integrity of
the programs or the well-being and safety of
beneficiaries and recipients. H. R. Rep. No. 393, Part
II, 95th Cong. 1st Sess., reprinted in 1977 U.S.C.C.A.N.
3072.
My purpose in hearing and deciding the issue of whether
an exclusion is reasonable is not to second guess the
I.G., but to decide whether the length of the exclusion
imposed by the I.G. was extreme or excessive. 48 Fed.
Reg. 3744 (1983); Abelard A. Pelaez, M.D., DAB CR157 at
14 - 15 (1991); Barranco at 29 - 30.
An appellate panel in The Hanlester Network, et al., DAB
1347 (1992) recently restated the Departmental Appeals
Board's view of considerations used in evaluating
trustworthiness:
- the circumstances of the misconduct and the
seriousness of the offense, in particular the
commission of misconduct in the nature of a
program-related crime, see [The Hanlester
Network, et al,] DAB 1275, at 52 [(1991)];
- "the degree to which a [Petitioner] is
willing to place the programs in jeopardy,"
even if no actual harm is accomplished, id. at
52; [footnote omitted]
- the failure to admit misconduct, or express
remorse, or evidence rehabilitations, see e.g.,
Olufemi Okonuren, M.D., DAB 1319, at 13 (1992);
Robert Matesic R.Ph. d/b/a Northway Pharmacy,
DAB 1327, at 12 (1992); and
- the "likelihood that the offense or some
similar abuse will occur again," see e.g.,
Matesic, at 8.
Hanlester DAB 1347 at 46 - 47.
In applying these factors to determine 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. I have
done this regarding the Petitioner and I have reached the
following conclusions regarding his trustworthiness to be
a program provider.
At all times relevant to this case, Petitioner was a
licensed physician in the State of New York engaged in
general practice. FFCL 2. The I.G. based its authority
to exclude Petitioner on a 1988 conviction in federal
court of conspiracy with his brother to solicit and
receive Medicaid kickbacks and actually receiving such
kickbacks, in violation of section 1128B(b)(1) of the
Act, for which he was sentenced to concurrent terms of
three years probation. I.G. Ex. 12; FFCL 6.
Petitioner's conviction stemmed from his receipt of
$12.00 per patient, which amounted to $2,700 in bribes
and kickbacks, for referring ambulette patients during
the period of March 1985 to October 1985. FFCL 5.
Such a scheme is patently illegal. As I stated
previously, Congress has made program-related kickbacks a
basis for criminal convictions and for exclusions under
sections 1128(a)(1) and (b)(7) of the Act. Using the
Hanlester guidelines cited above, Petitioner's criminal
conduct in accepting kickbacks for services rendered
under the Medicaid program is clearly serious, involved a
substantial amount of money in kickbacks and bribes, and
occurred over a significant period of time. By dividing
the $12.00 kickback amount into the total amount received
by Petitioner and his brother, it becomes readily
apparent that they were involved in 225 separate
instances of tainted ambulette transportation services.
This is in itself a significant amount. This criminal
conduct is not the result of carelessness or sloppy
bookkeeping but of repeated instances of intentional
conduct that were illegal. When considered with
Petitioner's other criminal conduct, which will be
discussed below, I am concerned that there is a strong
likelihood of a repetition of such conduct in the future,
which would have an adverse impact on the program and its
beneficiaries and recipients.
Petitioner attempts to reduce the significance of his
taking kickbacks and bribes by arguing that no "false or
unnecessary billings were charged against [him]" or there
was "no actual loss to the federal treasury based upon
any conduct of [Petitioner]". P. Br. at 7. Petitioner
is no less culpable of accepting illegal kickbacks
because he was not the one who billed the program.
Muneti, the ambulette transportation provider, would not
have been able to bill Medicaid without Petitioner's
authorization that such services were medically
necessary. The validity of such authorization is
questionable when the medical practitioner is receiving
an illegal kickback for it. This is the precise type of
conduct that Congress has deemed illegal and harmful to
the program.
In 1987, Petitioner was convicted in State court in New
York of 19 counts of offering a false instrument for
filing during the period of January 1980 to July 1983.
Petitioner was found guilty also of two counts of grand
larceny, but, on appeal, those counts were reduced to one
count of petit larceny. FFCL's 7-9. Petitioner's
conviction stemmed from his billing Medicaid for services
that he had not performed in the amount of over $8,000.
FFCL 7. Petitioner was sentenced on the 19 counts of
offering a false instrument for filing to five years
probation. FFCL 10. Petitioner was sentenced to three
years probation and a $1,000 fine on the petit larceny
count. FFCL 9. This conviction shows that Petitioner
was actively involved in the planning and furtherance of
a variety of schemes to defraud Medicaid.
I find it particularly disturbing that Petitioner engaged
in other criminal activities involving the Medicaid
program during the period of January 1980 to July 1983,
in addition to soliciting and receiving illegal kickbacks
during a period in 1985. Moreover, Petitioner must have
had some serious concerns that his conduct in the 1980 to
1983 period was illegal, based on his conviction of
criminal contempt for failing to produce patient records
in accordance with a grand jury subpoena. The court made
specific findings that 1) Petitioner had failed to keep
his patients' records for six years, as required by New
York statute; and 2) the clear inference from
Petitioner's conduct is that his refusal to produce these
records is "willful". I.G. Ex. 9/3, 5. The court also
found no credence in Petitioner's contention that a fire
at his home had destroyed the patient records. I.G. Ex.
9/5, 6. By failing to produce the patient records,
Petitioner was purposefully attempting to block the grand
jury investigation into his criminal conduct and reduce
the extent of his exposure for his illegal activities.
Again, this was not an inadvertent act but an act
involving a high degree of culpability. It further
demonstrates that Petitioner has little regard for the
Medicaid program or the people it serves.
The serious nature of Petitioner's actions is manifested
also in the fact that NYSDSS excluded Petitioner for a
ten year period based on his "inadequate, unnecessary,
inappropriate, contraindicated medical care, service and
treatment" and found Petitioner also to have
"demonstrated a pattern for disregarding established
program policies, accepted medical specialty standards
and procedures." I.G. Ex. 13.
Petitioner argues that the I.G.'s April 18, 1990,
decision to exclude him was based in part on his
conviction for two counts of grand larceny, which was
subsequently modified to one count of petit larceny. P.
Br. 2. Petitioner also argues that the I.G. failed to
take into consideration that the trial judge set aside
the jury verdict as being against the weight of the
evidence. P. Br. 2 - 3. Petitioner offers as evidence
of his trustworthiness the fact that his medical license
has been returned to probationary status after being
suspended for one year. P. Br. 3. Petitioner contends
that the I.G. improperly relied on information that did
not take into account that his conviction had been
modified by an appellate court. P. Br. 6. Lastly,
Petitioner argues that the I.G.'s decision to exclude is
improper because it came almost two years after he was
convicted.
I disagree with Petitioner's assertions. Under section
205(b) of the Act, Petitioner is entitled to a de novo
hearing. Therefore, the factors that went into the
I.G.'s determination as to whether an exclusion was
warranted and the length of such an exclusion are of
little relevance to my determination here. It is not my
function to second guess the I.G. in the exercise of his
discretion in moving to exclude Petitioner. I have
little or no authority to review the I.G.'s exercise of
prosecutorial discretion. To the contrary, my limited
responsibility in this hearing is the determination of
two issues -- whether the I.G. had the authority to
exclude Petitioner under the mandatory minimum provisions
of the Act and whether an exclusion of ten years is
reasonable. In essence, my primary interest is to
determine when in the future Petitioner will be
sufficiently trustworthy to be a program participant
without risk to beneficiaries and recipients, in light
of his past criminal activity.
Petitioner has provided me with the unsworn statements of
ten persons who testify to his good character, honesty
and his genuine concern for his patients. P. Exs. 1 -
10. At the February 12, 1992, hearing, four people
testified on behalf of Petitioner. Mr. Michael Hoffman
testified that he has known Petitioner for four or five
years, that he uses Petitioner as his personal physician
and that Petitioner would not cheat or steal from any
government program in the future. Tr. 103 - 109.
Ms. Joan Levy testified that she has known Petitioner for
one year, is currently Petitioner's office manager, and
that, in her opinion, Petitioner would not be a threat to
the Medicare program. Tr. 109 - 115. Ms. Josephine
Gubin testified that she has known Petitioner since 1987,
when he became her personal physician. She also
testified that Petitioner would not be a threat to the
Medicare program. Tr. 115 - 118. Mr. Edward Held, Esq.
testified that he has known Petitioner for approximately
three years. He also testified that Petitioner would not
be a threat to the Medicaid program.
While I have no doubt that all of these people have had
positive experiences in dealing with Petitioner, I find
their statements and testimony do not have much probative
value because all of the live testimony and all but one
of unsworn statements are from persons who have known
Petitioner only over the recent past and do not know the
details and extent of his past criminal actions involving
the program. Out of all of the statements submitted and
testimony proffered by Petitioner, only one is based on a
knowledge of Petitioner's activities since 1976. P. Ex.
3. The rest of the statements and testimony are from
people who have been acquainted with Petitioner for a
much shorter period of time, some for only a year.
P. Exs. 1,2, 4 - 10. Such evidence based on witnesses'
personal experiences with Petitioner and their
impressions of him as a doctor has very little value in
assessing Petitioner's trustworthiness to be a program
provider in light of his prior fraudulent financial
schemes. The witnesses' personal assessment of
Petitioner's conduct arising from his providing medical
treatment is not deserving of significant weight in
assessing Petitioner's trustworthiness to be a program
provider. My assessment of his trustworthiness to be a
program provider is based primarily on Petitioner's past
criminal offenses involving financial schemes to defraud
the Medicaid program and prevent a full investigation of
his criminal conduct.
Petitioner's unlawful acts show that he is an individual
who is capable of engaging in fraudulent schemes for his
own personal gain. His actions show also that he has a
propensity to commit offenses harmful to the financial
integrity and honest operation of federally-funded health
care programs. Petitioner has shown persistence in
perpetrating a variety of schemes, over a lengthy period
of time. Petitioner's conviction for contempt shows his
propensity to attempt to circumvent investigation into
his illegal acts. He has made minimal efforts to
rehabilitate himself and has not shown any genuine
remorse for his actions. His recent changes in office
procedures and practices are cosmetic and will not
adequately ensure that Petitioner will not engage in the
future in a criminal scheme for his own personal gain and
at the detriment of the program and its beneficiaries and
recipients. FFCL 28.
A lengthy exclusion is needed to provide Petitioner with
an opportunity to demonstrate that he once again can be
trusted to be a program provider. In light of the record
of his criminal behavior and the paucity of evidence
minimizing the current risk to the program, I am unable
to conclude that the ten year exclusion imposed and
directed against Petitioner is "extreme or excessive" and
should be reduced.
CONCLUSION
Based on the law and the evidence, I conclude that the
ten year exclusion from participating in Medicare and
Medicaid imposed and directed against Petitioner is
reasonable. I therefore sustain the exclusion.
________________________
Edward D. Steinman
Administrative Law Judge