Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Sheikh A. Qadeer, M.D., Petitioner,
- v. -
The Inspector General.
DATE: July 9, 1993
Docket No. C-93-041
Decision No. CR275
DECISION
By letter dated December 11, 1992, Sheikh A. Qadeer, M.D., the Petitioner herein,
was notified by the
Inspector General (I.G.), U.S. Department of Health & Human Services (HHS),
that it had been decided to
exclude him for a period of five years from participation in the Medicare program
and from participation in
the State health care programs mentioned in section 1128(h) of the Social Security
Act (Act). (I use the
term "Medicaid" in this Decision when referring to the State programs.)
The I.G. explained that the five-
year exclusion was mandatory under sections 1128(a)(1) and 1128(c)(3)(B) of
the Act because Petitioner
had been convicted of a criminal offense related to the delivery of an item
or service under Medicaid.
Petitioner filed a timely request for review of the I.G.'s action, and the
I.G. moved for summary
disposition.
Because I have determined that there are no material and relevant factual issues
in dispute (i.e., the only
matter to be decided is the legal significance of the undisputed facts), I have
granted the I.G.'s motion and
decide the case on the basis of written submissions in lieu of an in-person
hearing.
I affirm the I.G.'s determination to exclude Petitioner from participation
in the Medicare and Medicaid
programs for a period of five years.
APPLICABLE LAW
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act 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.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/
1. During the period relevant to this case, Petitioner was a licensed medical
doctor (psychiatrist) and a
Medicaid and Medicare provider, practicing in Chemung County, New York.
2. Petitioner was indicted by a Chemung County Grand Jury on the charges of
Grand Larceny and Offering
a False Instrument for Filing. I.G. Ex. 1.
3. The indictment alleged that Petitioner had filed with the State of New York
claims for Medicaid
reimbursement which intentionally overstated the duration of psychotherapy sessions
he had provided to
Medicaid patients, resulting in his being overpaid approximately $7,000 by the
State. I.G. Exs. 1 and 2.
4. On July 1, 1991, Petitioner, represented by counsel, entered a plea of guilty
in Chemung County Court
to the misdemeanor offenses of Attempted Grand Larceny and Offering a False
Instrument for Filing. I.G.
Ex. 2.
5. In the plea colloquy, Petitioner acknowledged that he " . . . tried
to deprive the State of New York of
money by making a false representation . . . " I.G. Ex. 2.
6. The court sentenced Petitioner to a conditional discharge, predicated upon
the performance of
community service and financial restitution in the amount of $10,459.90. 50
percent of the restitution was
for the federal government, 25 percent for the New York State Medicaid program,
and 25 percent for
Chemung County. I.G. Ex. 4.
7. Based upon this criminal conviction, the New York State Department of Social
Services excluded
Petitioner from participation in the Medicaid program. I.G. Ex. 3.
8. The Secretary of HHS has delegated to the I.G. the authority to determine
and impose exclusions
pursuant to section 1128 of the Act. 48 Fed. Reg. 21662 (1983).
9. Petitioner's guilty plea, and the court's acceptance thereof, constitutes
a "conviction" within the meaning
of the mandatory exclusion provisions of the Act.
10. The offense underlying Petitioner's conviction --intentionally billing
Medicaid for services in excess of
those actually provided -- constitutes criminal fraud related to the delivery
of Medicaid services.
11. Petitioner's contention that he lacked the intent to defraud Medicaid is irrelevant.
PETITIONER'S ARGUMENT
Petitioner contends that his offense amounted to nothing more than a technical
dispute over Medicaid
billing codes and that he had no intention to defraud the State. He says that
he entered a guilty plea only to
lessen the emotional and physical stresses upon himself and his family. He insists
that the punishments
already imposed upon him -- which include the payment of restitution and the
performance of community
service -- are sufficiently severe.
Petitioner submitted statements from patients and colleagues, and also other
members of the community,
all of whom attested to the high level of his professional competence, his compassion,
and his good
citizenship.
As to legal argument, Petitioner asserts that his offenses were neither related
to the delivery of health care,
nor to patient abuse, and, thus, do not warrant mandatory exclusion pursuant
to section 1128(a) of the Act.
He contends further that his five-year suspension should be reduced because
of the presence of various
mitigating factors. He cites, as authority for this contention, the case of
Melashenko v. Bowen, [1991
Transfer Binder] Medicare & Medicaid Guide (CCH) 38,827 (E.D. Calif. June
19, 1990).
DISCUSSION
The first statutory requirement for mandatory exclusion pursuant to section
1128(a)(1) of the Act is that the
person to be excluded must have been convicted of a criminal offense under federal
or State law. In the
case at hand, Petitioner pled guilty and the New York court, after careful inquiry,
accepted the plea.
Section 1128(i)(3) of the Act expressly provides that when a person enters a
plea of guilty to a criminal
charge and the court accepts such plea, the individual will be regarded as having
been "convicted" within
the meaning of the mandatory exclusion provisions of the Act.
The statute further requires that the criminal offense in question must have
been "program-related," i.e.,
related to the delivery of items or services under Medicaid or Medicare. It
is well-established in decisions
of the Departmental Appeals Board (DAB) that filing false Medicare or Medicaid
claims relates to the
delivery of items or services under such programs and clearly constitutes program-related
misconduct,
sufficient to mandate exclusion. Jack W. Greene, DAB CR19 (1989), aff'd, DAB
1078 (1989), aff'd sub
nom. Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990). I find that
the offense underlying
Petitioner's criminal conviction -- intentionally billing Medicaid for services
in excess of those actually
provided -- likewise constitutes criminal fraud related to the delivery of Medicaid
services.
Petitioner asserts that he did not intend to defraud Medicaid. However, under
section 1128(a) of the Act,
proof that an appropriate criminal conviction has occurred ends the inquiry
as to whether mandatory
exclusion is called for; the intent or state of mind of the individual committing
the crime is not material.
DeWayne Franzen, DAB 1165 (1990). Also, these administrative proceedings cannot
be used to attack the
substantive decision arrived at by the court. In sum, the law does not permit
HHS to look behind the fact
of conviction. When an individual has been convicted of a crime encompassed
by section 1128(a)(1),
exclusion is mandatory; such individual's subsequent claim of innocence will
not be considered. Peter J.
Edmonson, DAB 1330 (1992).
Next, although it is not entirely clear, Petitioner may be suggesting that
permissive exclusion, rather than
mandatory exclusion is applicable in his case. This argument, however, is not
supported by precedent. An
appellate panel of the DAB has considered the relationship between sections
1128(a) (mandatory
exclusions) and 1128(b) (permissive exclusions). It concluded that where a criminal
conviction satisfies
the requirement of section 1128(a)(1) that such conviction relate to the delivery
of an item or service under
Medicare or Medicaid, then section 1128(a)(1) is controlling and the I.G. must
impose the mandatory
exclusion which the statute provides. The fact that the criminal conviction
may appear also to fall within
the broader criteria for permissive exclusion found in section 1128(b)(1) is
irrelevant. Boris Lipovsky,
M.D., DAB 1363 (1992).
Lastly, Petitioner's reliance upon Melashenko is misplaced in that the exclusion
in that case was
permissive, not mandatory, as in the present case. Specifically, the exclusion
of Dr. Melashenko
apparently was based on a competence-related charges and the subsequent recommendation
of the
California Peer Review Organization, and not a criminal conviction, as is the
case here. In proceedings
such as Dr. Melashenko's, the I.G. had to determine whether to impose an exclusion
and, if so, for how
long. The administrative law judges weighed the mitigating and aggravating factors
and determined
whether the period of exclusion imposed and directed by the I.G. was reasonable.
There was no mandatory
minimum dictated by Congress in such actions. In the case at hand, however,
the statute does not allow the
I.G. or the judge to impose less than the five-year minimum penalty, once the
factual basis for the
exclusion is proved.
CONCLUSION
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act require that Petitioner be
excluded from the Medicare
and Medicaid programs for a period of at least five years because of his conviction
of program-related
criminal offenses. Neither the I.G. nor the judge is authorized to reduce the
five-year minimum mandatory
period of exclusion. Jack W. Greene, DAB CR19, at 12 - 14 (1989).
The I.G.'s five-year exclusion is, therefore, sustained.
______________________________
Joseph K. Riotto
Administrative Law Judge
1. Petitioner and the I.G. each submitted written argument supported by exhibit
evidence. I admit all of
the exhibits and cite them herein as P. Ex. (number) or I.G. Ex. (number).