Scott Gladstone, M.D., CR No. 331 (1994)

$05:Exclusion Case

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: Scott Gladstone, M.D., Petitioner,
- v. -
The Inspector General.

DATE: September 6, 1994

Docket No. C-93-071
Decision No. CR331

DECISION

Background

By letter (Notice) dated March 23, 1993, the Inspector General
(I.G.) notified Petitioner that he was being excluded from
participation in the Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social Services
programs for a period of 10 years. 1/ The I.G. informed Petitioner
that he was being excluded due to his conviction in the Las Vegas
Justice Court, Clark County, Nevada, of a criminal offense related
to the delivery of an item or service under the Medicaid program.
The I.G. further advised Petitioner that an exclusion after such a
conviction is mandated by section 1128(a)(1) of the Social Security
Act (Act), and that section 1128(c)(3)(B) of the Act provides that
the minimum period of exclusion for such an offense is five years.
The I.G. stated further that the following circumstances were also
taken into consideration in arriving at Petitioner's period of
exclusion: (1) the statutory fines and penalties imposed by the
court amounted to more than $500,000; (2) the commission of the
crime evinced planning and premeditation; (3) Petitioner agreed to
be excluded from the Medicaid program for 10 years. In a letter
dated May 4, 1993, Petitioner challenged his exclusion and
requested a hearing.

I conducted a prehearing conference by telephone on May 28, 1993.
During that conference, I established a schedule for discovery and
prehearing exchanges and scheduled an in-person hearing to begin on
October 12, 1993. These events were memorialized in my Order and
Notice of Hearing dated July 9, 1993. Subsequently, Petitioner
changed attorneys and I held another prehearing conference on
August 26, 1993, at which time Petitioner's new attorney entered
his appearance. At the conference, I informed Petitioner's counsel
of the status of the case and granted his request for a continuance
of the document exchange dates. I rescheduled the hearing date to
accommodate the schedule of Petitioner's counsel. Following this
conference, I issued an Order Amending Hearing and Exchange Dates
dated August 30, 1993. On September 3, 1993, in response to an
August 30, 1993 letter sent to me by Petitioner's counsel, I issued
an Order to Show Cause and Stay of Exchange Dates (Order to Show
Cause). In the Order to Show Cause, I requested Petitioner's
counsel to state whether his August 30, 1993 letter was intended as
a withdrawal of Petitioner's request for hearing or whether it was
intended, instead, as a request for a continuance. In a letter
dated September 20, 1993, Petitioner's counsel responded to my
Order to Show Cause. In my Order and Schedule for Submission of
Briefs and Exhibits, dated October 4, 1993, I stated that I
construed Petitioner's September 20, 1993 letter as a waiver of
Petitioner's request for an in-person hearing and a request for a
hearing on the record. Accordingly, I established a briefing
schedule.
With her brief, the I.G. submitted nine proposed exhibits (three
were declarations). I have given exhibit numbers to the
declarations since the I.G. did not do so. I cite the I.G.'s
exhibits as "I.G. Ex. (number) at (page)." The Declaration of
Jeanette Supera is I.G. Ex. 7, the Supplemental Declaration of
Jeanette Supera is I.G. Ex. 8, and the Declaration of Beth Salvador
is I.G. Ex. 9. I admit I.G. Ex. 1 - 8 into evidence. I reject
I.G. Ex. 9. With his response, Petitioner submitted one proposed
exhibit, which I cite as P. Ex. 1. I reject P. Ex. 1.

I have rejected P. Ex. 1, a newspaper article dated November 13,
1993, on the basis of irrelevancy. FFCL 30. 2/ Petitioner argued
that he cooperated "with the investigation and indictment of his
former accountant," and that this is a mitigating factor that I
should take into consideration in deciding the length of his
exclusion. P. Br. at 2. Petitioner appears to be arguing that his
alleged cooperation should be regarded as mitigating pursuant to 42
C.F.R. 1001.102(c)(3)(i). In support of this argument,
Petitioner submitted the aforementioned newspaper article, which
stated that a Las Vegas accountant had been indicted. Rejected P.
Ex. 1. While the article does mention Petitioner's name, it merely
relates that the indictment of the accountant involved the apparent
theft of two checks from Petitioner. Id. The I.G. contends that
"[t]his has no relevance to Petitioner's, or anyone else's,
participation in the Medicare or Medicaid programs." I.G. R. Br.
at 8 - 9; see I.G. Ex. 7. I concur.

Under the regulations, an excluded individual's cooperation with
officials can be a mitigating factor if it "resulted in [o]thers
being convicted or excluded from Medicare or any of the State
health care programs." 42 C.F.R. 1001.102(c)(3)(i). In
Petitioner's case, there exists no proof that the indictment of the
Las Vegas accountant resulted from Petitioner's cooperation with
the authorities. I find that the accountant's indictment has no
connection to Petitioner's Medicaid conviction or to Medicare or
any State health care program and is wholly irrelevant to these
proceedings. FFCL 28. Finally, the newspaper article states that
the accountant was only indicted, not convicted. I conclude that
the indictment of the accountant is not a mitigating factor under
42 C.F.R. 1001.102(c)(3)(i), and has no bearing on my
adjudication of Petitioner's case. FFCL 29. In view of the
foregoing, I have thus rejected P. Ex. 1.

After the record in this case had closed on March 8, 1994,
Petitioner himself untimely submitted additional materials directly
to me, rather than submitting them through counsel. In a letter
dated May 2, 1994, I informed counsel for Petitioner and counsel
for the I.G. that I was treating Petitioner's submissions as a
motion to reopen the record. I directed counsel for both parties
that they had the opportunity to respond as to their respective
positions on this matter. In response, counsel for the I.G.
submitted a brief opposing Petitioner's motion to reopen the record
and objecting to Petitioner's new evidence.

On May 25, 1994, I held a telephone conference call with
Petitioner, his counsel, and the I.G.'s counsel. In a letter dated
May 27, 1994, in which I summarized the events of the conference
call, I stated that I had informed Petitioner that I had no
authority to reduce his exclusion below the five-year minimum
mandatory exclusion. I emphasized to Petitioner also that his
request for a waiver of his exclusion to provide care to medically
indigent individuals was outside the purview of my authority. I
informed Petitioner that I would give him a final opportunity to
challenge his exclusion through an in-person hearing or by an
on-the-record submission of documentary evidence. On May 31, 1994,
I held another telephone conference call with the same
participants. Following this call, I issued an Order dated June 2,
1994 which reflected that Petitioner stated that 1) he did not want
an in-person hearing; 2) he was withdrawing his previously
submitted documents and 3) he wanted another opportunity to
supplement the record with additional documentation. I gave
Petitioner one last opportunity to offer evidence for my
consideration and set a schedule to enable him to make this final
submission.

Pursuant to my June 2, 1994 Order, counsel for Petitioner submitted
additional documents as proposed exhibits for my consideration.
The documents consisted of a polygraph examination report dated May
27, 1993, accompanied by a curriculum vitae of the examiner, and
two letters written to me by Petitioner, dated April 26, and April
27, 1994. 3/ In a letter dated June 9, 1994, I directed that
counsel for the I.G. had the opportunity to respond to Petitioner's
submission. Counsel for the I.G. thereupon submitted a brief in
opposition to Petitioner's June 3, 1994 submissions. By letter
dated June 24, 1994, I directed that counsel for Petitioner had the
opportunity to respond to the I.G.'s brief. By letter dated June
28, 1994, counsel for Petitioner indicated that he was declining to
respond to the I.G.'s position and would await my decision. By
letter dated July 8, 1994, I informed the parties that I was
rejecting Petitioner's proposed exhibits and closing the record.


I find that Petitioner's proposed exhibits, P. Ex. 2-4, are
irrelevant as they do not relate to the aggravating or mitigating
factors set forth in the regulations which govern the length of
Petitioner's exclusion. In his letters, Petitioner stated that he
was pursuing employment with county mental health departments in
California and was also considering a psychiatry fellowship at a
university training facility. Petitioner expressed also his
interest in providing care to the medically indigent and his
bilingual ability, and asserted that psychiatrists were in need in
northern California. Rejected P. Ex. 3, 4.

I find that Petitioner's letters do not address the merits of the
length of his exclusion. Nothing in Petitioner's letters relates
to the aggravating or mitigating factors set forth in 42 C.F.R.
1001.102(b) and (c). At best he seeks a waiver of his exclusion --
an issue beyond the purview of my authority. Under 42 C.F.R.
1001.1801(f), my jurisdiction does not extend to review of the
disposition of a waiver request. 4/ Petitioner's assertion that
there is an insufficient number of bilingual psychiatrists to treat
indigent patients in northern California, even if true, is
irrelevant, since the lack of alternative sources of medical items
or services is not a mitigating factor under the applicable
regulations pertaining to program- related exclusions. 42 C.F.R.
1001.102(c); FFCL 26. I have therefore rejected P. Ex. 3, 4. FFCL
27. Similarly, I.G. Ex. 9, which was offered to rebut Petitioner's
claim of a lack of alternative sources, is also irrelevant, and
thus, rejected. FFCL 27.

Similarly, I find the polygraph examination report, dated May 27,
1993, and the accompanying curriculum vitae, to be irrelevant as
they address neither the aggravating nor mitigating factors.
Petitioner has apparently offered these polygraph documents in an
attempt to prove his innocence and good character. While general
character evidence is not relevant in this case, I have allowed
evidence of a petitioner's state of mind and rehabilitation to
rebut the implications of untrustworthiness arising from a
specified aggravating factor. Joseph Weintraub, M.D., DAB CR303
(1994) at 44. Such evidence must relate directly to an aggravating
factor. Here, Petitioner offered polygraph evidence indicating
that 1) he did not devise a plan or scheme to knowingly bill
Medicaid fraudulently and 2) he never cashed any Medicaid checks
for amounts beyond which he was entitled. Rejected P. Ex. 2. Such
general denials, without further supporting evidence, do not
directly relate to the aggravating factors pertaining to financial
harm to the program. 42 C.F.R. 1001.102(b)(1) and (6). The
record reflects that I gave Petitioner repeated opportunities to
provide specific information to rebut the aggravating factors
either with documentary or testimonial evidence. Letter Closing
the Record, dated March 16, 1994; Letter, dated May 27, 1994;
Order, dated June 2, 1994; Letter, dated June 24, 1994. No such
evidence was ever submitted.

To the extent that Petitioner is offering the polygraph documents
to collaterally attack his conviction, such an effort is
impermissible. Petitioner may have recourse in the State courts to
rectify such matters, but not in this forum. Peter J. Edmonson,
DAB 1330, at 4 - 5 (1992); Richard G. Philips, D.P.M., DAB CR133,
aff'd, DAB 1279 (1991). Moreover, even assuming such documents are
demonstrative of his general good character, such evidence, without
a more detailed explanation of his conduct, lacks the requisite
specificity to rebut the lack of trustworthiness arising from the
aggravating factors alleged by the I.G. to justify the lengthy
exclusion of Petitioner. In short, Petitioner has failed to make
the threshold showing needed for me even to consider such evidence
as rebuttal to the aggravating factors alleged by the I.G.
Further, the polygraph evidence offered by Petitioner is not
competent or reliable evidence due to Petitioner's failure to
provide an adequate foundation to establish the validity of the
polygraph examination and to justify the receipt of such evidence.
U.S. v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989); U.S. v. One
Parcel of Real Estate, 804 F. Supp. 319, 322 (S.D. Fla. 1992). For
the foregoing reasons, I rejected P. Ex. 2. FFCL 31.

I have considered the evidence of record, the parties' arguments,
5/ and the applicable law and regulations. I find that, pursuant
to sections 1128(a)(1) and 1128(c)(3)(B) of the Act, the I.G. has
the authority to exclude Petitioner and that the 10-year exclusion
is reasonable. Therefore, I sustain the 10-year exclusion imposed
and directed against Petitioner.

ISSUES

The issues in this case are:

1. Whether Petitioner was convicted of a criminal offense related
to the delivery of an item or service under Medicaid, within the
meaning of section 1128(a)(1) of the Act.

2. Whether the 10-year exclusion imposed and directed against
Petitioner by the I.G. is reasonable.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Findings of Fact and Conclusions of Law by Agreement of the Parties
6/

1. On March 16, 1992, Petitioner entered into a Memorandum of Plea
Negotiations [also referred to in this section as "plea agreement"
and "plea negotiation"] with the Medicaid Fraud Control Unit of the
State of Nevada Office of the Attorney General, whereby Petitioner
agreed to plead guilty to Count I of the Criminal Complaint
appended to the Memorandum. I.G. Ex. 1.

2. At the time of his execution of the Memorandum of Plea
Negotiations with the State of Nevada, Petitioner was a
psychiatrist practicing in Las Vegas, Nevada.

3. Count I of the Criminal Complaint to which Petitioner agreed to
plead guilty charged him with willfully, unlawfully, knowingly and
designedly, with the intent to cheat and defraud, obtaining money
from the Nevada Medicaid program by means of false pretenses, by
falsely claiming that he rendered professional services to certain
patients, when, in fact, he did not render such services. I.G. Ex.
1.

4. Petitioner, through the execution of his plea agreement with
the State of Nevada, specifically stipulated that the State of
Nevada could prove beyond a reasonable doubt that he did knowingly
and designedly obtain money from Nevada Medicaid by making false
statements on claims for professional services, which he knew were
false, and that he acted with the intent to defraud the Medicaid
program. I.G. Ex. 1.

5. Petitioner further stipulated that, if he were to breach the
terms of the plea negotiation, he understood and agreed that the
Criminal Complaint attached as Exhibit B to the Memorandum of Plea
Negotiations with the State of Nevada may be filed against him.
I.G. Ex. 1.
6. The Criminal Complaint attached as Exhibit B to the Memorandum
of Plea Negotiations, which Petitioner consented could be filed
against him if he breached his plea agreement, charged Petitioner
with eight felony counts and one misdemeanor count of obtaining
money by false pretenses from the Nevada Medicaid program by
falsely claiming that he rendered professional services to
patients, when in fact, he did not. I.G. Ex. 1.

7. Petitioner agreed through his executed plea agreement that (1)
he would pay to the State of Nevada $300,000 in restitution, to be
assessed on the following basis: $35,624.36 for restitution;
$38,192.06 for costs of investigation and enforcement; and,
$226,183.58 for statutory penalties; (2) all of these payments
would be made by negotiable instruments made payable to the "State
of Nevada" and delivered to the Medicaid Fraud Control Unit of the
Office of the Nevada Attorney General; (3) he would perform 500
hours of community service; (4) he would voluntarily agree to be
excluded from the Nevada Medicaid program in any and all capacities
for a period of ten years, with permission afforded to petition for
reinstatement if, after the lapse of five years, Nevada Medicaid
considers his services to [have] be[en] exemplary. I.G. Ex. 1.

8. The Justice Court of Las Vegas Township, Clark County, Nevada,
accepted Petitioner's plea of guilty to the charge of obtaining
money from the Nevada Medicaid program by means of false pretenses,
by claiming that he had rendered professional services to patients
when, in fact, he had not rendered such services. I.G. Ex. 2.

9. On March 31, 1992, the Justice Court of Las Vegas Township
sentenced Petitioner to perform 500 hours of community service, and
to pay restitution of $300,000 to the State of Nevada in the
following manner: $35,624.36 for restitution; $38,192.06 for the
cost of investigation and enforcement; and $226,183.58 for
statutory penalties. I.G. Ex. 2. 7/

10. By letter dated April 7, 1992, the Nevada Medicaid Office of
the Nevada Department of Human Resources notified Petitioner that,
based upon his agreement to be excluded as a Medicaid provider for
a period of ten years, Nevada Medicaid was terminating his provider
agreement effective April 1, 1992, and that he would not be
reimbursed by the Medicaid program for services provided on or
after that date. 8/ I.G. Ex. 3.

11. The Secretary [of the Department of Health and Human Services]
has delegated to the I.G. the authority to determine, impose, and
direct exclusions pursuant to section 1128 of the Act. 48 Fed.
Reg. 21,662 (1983).
12. By letter dated March 23, 1993, the I.G. excluded Petitioner
pursuant to section 1128(a)(1) of the Act for a period of 10 years.
I.G. Ex. 4.

13. Petitioner stipulated during a prehearing conference on May
28, 1993 that he did not contest the fact of his conviction, or
that his conviction was related to his delivery of services under
the Nevada Medicaid program, thereby subjecting him to the
mandatory minimum exclusion of five years under section 1128(a)(1)
and section 1128(c)(3)(B) of the Act. 9/ Order and Notice of
Hearing, dated July 9, 1993.

14. The I.G. has authority to impose and direct an exclusion
pursuant to section 1128(a)(1) of the Act based upon Petitioner's
conviction of an offense related to his delivery of services under
the Medicaid program.

15. The I.G. has authority to impose and direct an exclusion for
at least five years, pursuant to section 1128(c)(3)(B) of the Act.

16. Regulations published on January 29, 1992 establish criteria
to be employed by the I.G. in determining to impose and direct
exclusions pursuant to sections 1128(a) and (b) of the Act. 42
C.F.R. Part 1001 (1992).

17. The regulations published on January 29, 1992 include criteria
to be employed by the I.G. in determining to impose and direct
exclusions pursuant to section 1128(a)(1) of the Act. 42 C.F.R.
1001.101 and 1001.102.

18. On January 22, 1993, the Secretary published a regulation
which directs that the criteria to be employed by the I.G. in
determining to impose and direct exclusions pursuant to sections
1128(a) and (b) of the Act are binding also upon Administrative Law
Judges, appellate panels of the Departmental Appeals Board, and
federal courts in reviewing the imposition of exclusions by the
I.G. 42 C.F.R. 1001.1(b); 58 Fed. Reg. 5617-18 [(1993)].

19. The Administrative Law Judge's adjudication of the length of
exclusion in this case is governed by the criteria set out in
section 1128(a)(1) of the Act, section 1128(c)(3)(B) of the Act,
and 42 C.F.R. 1001.102. FFCL 14-18.

20. An exclusion imposed pursuant to section 1128(a)(1) of the Act
must be for a period of at least five years. Section 1128(c)(3)(B)
of the Act; 42 C.F.R. 1001.102(a).

21. An exclusion imposed pursuant to section 1128(a)(1) of the Act
may be in excess of the five-year mandatory minimum period if any
of the six aggravating factors set out in 42 C.F.R. 1001.102(b)
are found to be present. See FFCL 37.

22. If any of the six factors in [42 C.F.R.] 1001.102(b) are
found to be present, thereby justifying an exclusion longer than
five years, the three factors (and only those three factors)
specified in [42 C.F.R.] 1001.102(c) may be considered
mitigating, and a basis for reducing the duration of exclusion that
is in excess of five years. See FFCL 38.

23. The I.G. has the burden of proving that aggravating factors
specified in the regulations are present in this case. 42 C.F.R.
1005.15(c).

24. The I.G. has proved that the acts that resulted in
Petitioner's conviction, or similar acts, had a significant adverse
physical, mental, or financial impact on one or more program
beneficiaries. 42 C.F.R. 1001.102(b)(3).

25. Petitioner has the burden of proving that mitigating factors
exist which justify reducing his exclusion. 42 C.F.R.
1001.102(c)(1)-(3); 42 C.F.R. 1005.15(c).

Other Findings of Fact and Conclusions of Law

26. A lack of alternative sources of medical items or services is
not a mitigating factor under the applicable regulations pertaining
to program-related exclusions. 42 C.F.R. 1001.102(c).

27. P. Ex. 3 and 4, which were offered to establish the existence
of a lack of alternative sources, are irrelevant, and thus,
rejected. Similarly, I.G. Ex. 9, which was offered to rebut
Petitioner's claim of a lack of alternative sources, is also
irrelevant, and thus, rejected.

28. The indictment of the Las Vegas accountant, related in the
newspaper article offered by Petitioner, has no connection to
Petitioner's Medicaid conviction or to Medicare or any State health
care program. Rejected P. Ex. 1; see I.G. Ex. 7.

29. The indictment of the Las Vegas accountant, related in the
newspaper article offered by Petitioner, is not a mitigating factor
under 42 C.F.R. 1001.102(c)(3)(i), and has no bearing on my
adjudication of Petitioner's case. Rejected P. Ex. 1.

30. P. Ex. 1 is irrelevant, and thus rejected.

31. P. Ex. 2 is irrelevant. The polygraph evidence offered by
Petitioner is not competent or reliable evidence due to
Petitioner's failure to provide an adequate foundation to establish
the validity of the polygraph examination and to justify the
receipt of such evidence. P. Ex. 2 is thus rejected.

32. At all times relevant to this case, Petitioner was a physician
specializing in psychiatry practicing in Las Vegas, Nevada. I.G.
Br. at 1, 15; P. Br. at 2.

33. The conduct underlying the eight felony counts and one
misdemeanor count with which Petitioner was charged in the Criminal
Complaint attached as Exhibit B to the Memorandum of Plea
Negotiations occurred between November 2, 1990 and May 17, 1991.

34. The Nevada Medicaid program is a State health care program as
defined by section 1128(h) of the Act.

35. Petitioner's guilty plea, and the actions taken by the court
indicating acceptance of his plea, constitute a "conviction" of a
criminal offense, within the meaning of section 1128(i)(3) of the
Act. FFCL 1, 8, 9, 13.

36. 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. FFCL 1, 3, 4, 8, 9,
13, 35.

37. Aggravating factors which may form a basis for imposing an
exclusion in excess of five years against a party pursuant to
section 1128(a)(1) of the Act may consist of any of the following:

a. The acts resulting in a party's conviction, orsimilar
acts, resulted in financial loss to Medicareor Medicaid of $1500 or
more.

b. The acts that resulted in a party's conviction,or similar
acts, were committed over a period of oneyear or more.

c. The acts that resulted in a party's conviction,or similar
acts, had a significant adverse physical,mental, or financial
impact on one or more programbeneficiaries or other individuals.

d. The sentence which a court imposed on a partyfor the
above-mentioned conviction included a periodof incarceration.

e. The convicted party has a prior criminal, civil,or
administrative sanction record.

f. The convicted party was overpaid a total of$1500 or more
by Medicare or Medicaid as a result ofimproper billings.

42 C.F.R. 1001.102(b)(1)-(6) (paraphrase).

38. Mitigating factors which may offset the presence of
aggravating factors may consist of only the following:

a. A party has been convicted of three or fewermisdemeanor
offenses, and the entire amount offinancial loss to Medicare and
Medicaid due to theacts which resulted in the party's conviction
andsimilar acts, is less than $1500.

b. The record in the criminal proceedings,including
sentencing documents, demonstrates thatthe court determined that,
before or during thecommission of the offense, the party had a
mental,emotional, or physical condition that reduced thatparty's
culpability.

c. The party's cooperation with federal or Stateofficials
resulted in others being convicted ofcrimes, or in others being
excluded from Medicare orMedicaid, or in others having imposed
against them acivil money penalty or assessment.

42 C.F.R. 1001.102(c)(1)-(3) (paraphrase).

39. The fact that Petitioner agreed to repay $35,624.36 as
restitution to the State of Nevada is evidence that the acts which
resulted in his conviction resulted in financial loss to Medicaid
of $1500 or more, which is an aggravating factor that justifies
excluding Petitioner for more than five years. 42 C.F.R.
1001.102(b)(1);
FFCL 7, 9.

40. In a letter to the Nevada Medicaid program dated November 18,
1992, the Quality Review Committee (QRC) of the Nevada Peer Review
organization (PRO) stated that it had reviewed the cases of five
Medicaid patients in which Petitioner was the attending physician.
I.G. Ex. 5.

41. The five Medicaid patients who were the subjects of the QRC
review had all been admitted to the adolescent or adult psychiatric
units of Lake Mead Hospital with the diagnosis of major depression
associated with suicidal ideation. I.G. Ex. 5.

42. The QRC identified serious quality of care problems in
Petitioner's care and treatment of these five patients. The QRC
concluded that the quality of care with respect to these five
patients "was compromised and presented significant risk to the
patients." I.G. Ex. 5.
43. The QRC of the Nevada PRO made the following specific
findings, which were common to all of the five Medicaid patients,
and which were stated in its November 18, 1992 letter to Nevada
Medicaid:

a. there was no substantiation for the diagnoses ofmajor
depression;

b. there was an inadequate and delayed diagnosticworkup with
an inadequate differential diagnosis;

c. the cases lacked direction, discharge criteria,and clear
goals;

d. detoxification was done without physicianmonitoring;

e. telephone orders were documented, but there
were only minimal psychiatric assessments noted in

the progress notes;

f. medications were prescribed without a thoroughevaluation
of the patient being done, and withoutappropriate psychiatric
rationale documented for itsuse; and monitoring while on medication
wasinadequate.

g. there was repeated mention of stressful anddisruptive life
circumstances, but these wentunaddressed and unchanged at
discharge.

I.G. Ex. 5.

44. Investigator Jeanette Supera of the Medicaid Fraud Control
Unit of the Nevada Attorney General's Office found that the five
Medicaid patients who were the subjects of the QRC review were also
Medicaid recipients for whom Petitioner had submitted claims and
received reimbursement for services he had not provided. Four of
the five patients were included in the false claim counts set forth
in the Criminal Complaint attached as Exhibit B to the Memorandum
of Plea Negotiations. I.G. Ex. 8.

45. Petitioner's neglect of patients, his failure to provide the
psychiatric services for which he billed and received Medicaid
payments, and his inadequate patient assessments and monitoring had
"a significant adverse physical, mental, or financial impact on one
or more program beneficiaries or other individuals," and thus is an
aggravating factor that justifies excluding Petitioner for more
than five years. 42 C.F.R. 1001.102(b)(3). FFCL 40 - 44.

46. The record contains copies of three Medicaid reimbursement
checks paid to Petitioner, the sum of which is $24,842.34. I.G.
Ex. 6; see I.G. Ex. 8.

47. For the same reasons upon which I determined that the
aggravating factor at 42 C.F.R. 1001.102(b)(1) exists in this
case, I conclude also that the acts which led to Petitioner's
conviction resulted in overpayments by Medicaid of $1500 or more,
and thus, is an aggravating factor that justifies excluding
Petitioner for more than five years. 42 C.F.R. 1001.102(b)(6);
FFCL 7, 9, 39.
48. Petitioner has not directly responded to any of the
aggravating factors set forth by the I.G. P. Br. at 1 - 3.

49. Petitioner has not proved the presence of any mitigating
factors which may be used as a basis for offsetting aggravating
factors. 42 C.F.R. 1001.102(c)(1) - (3).

50. 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 to treat
beneficiaries and recipients.

51. The aggravating factors specified at 42 C.F.R.
1001.102(b)(1), 1001.102(b)(3), and 1001.102(b)(6) are present in
Petitioner's case, and warrant imposition of a period of exclusion
of 10 years. FFCL 24, 39, 45, 47.

52. The multiple and significant aggravating factors present in
this case, with no offsetting mitigating factors present, justify
excluding Petitioner for 10 years. 42 C.F.R. 1001.102(b); FFCL
49, 51.

53. Petitioner has failed to show that he is no longer a threat to
the Medicare and State health care programs.

54. A lengthy exclusion is needed in this case to satisfy the
remedial purposes of the Act and to protect the Medicare and
Medicaid programs and its beneficiaries and recipients from future
misconduct by Petitioner.

55. I conclude that the 10-year exclusion imposed and directed
against Petitioner by the I.G. is not extreme or excessive.

56. The 10-year exclusion imposed and directed against Petitioner
by the I.G. is reasonable. FFCL 1 - 55.

PETITIONER'S ARGUMENT

Petitioner does not dispute that he was "convicted" of a criminal
offense related to his delivery of services under the Nevada
Medicaid program and that the I.G. has authority to exclude him for
at least the mandatory minimum period of five years, under sections
1128(a)(1) and 1128(c)(3)(B) of the Act. FFCL 13. Petitioner
contends, however, that his 10-year exclusion is unreasonable and
unwarranted. Petitioner argues that he pled guilty to a single
misdemeanor count, is "one of only a few psychiatrists who can
truly address indigent patients' needs," and cooperated with the
investigation of his former accountant. P. Br. at 2. The I.G.
contends that a 10-year exclusion is justified because of the
presence of significant aggravating factors. The I.G. asserts that
no mitigating factors are present in this case.


RATIONALE

I. Petitioner was "convicted" within the meaning of section
1128(i) of the Act and is subject to a minimum mandatory exclusion
of five years pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of
the Act.

Section 1128(i)(3) of the Act provides:

For purposes of subsections (a) and (b) (of section 1128 of
the Act), an individual or entity is considered to have been
"convicted" of a criminal offense . . . when a plea of guilty or
nolo contendere by the individual or entity has been accepted by a
Federal, State, or local court.

Petitioner does not dispute that he was convicted of a criminal
offense related to his delivery of services under the Nevada
Medicaid program and is thus subject to at least the five-year
minimum mandatory exclusion under sections 1128(a)(1) and
1128(c)(3)(B) of the Act. FFCL 1 - 9 , 12 - 14, 33 - 36. 10/

II. The aggravating factors present in this case are a basis for
lengthening the period of exclusion beyond the minimum period of
five years.

The I.G. excluded Petitioner from participating in the Medicare and
Medicaid programs for 10 years. Petitioner argues that "[t]he
reasonable length of exclusion should be five years." P. Br. at 2,
3. The issue in this case is whether the I.G. is justified in
excluding Petitioner for 10 years.

Regulations published on January 29, 1992 establish criteria to be
employed by the I.G. in determining to impose and direct exclusions
pursuant to sections 1128(a) and (b) of the Act. 42 C.F.R. Part
1001 (1992). FFCL 16. These regulations include criteria to be
employed by the I.G. in determining to impose and direct exclusions
pursuant to section 1128(a)(1) of the Act. 42 C.F.R. 1001.101
and 1001.102; FFCL 17.

On January 22, 1993, the Secretary published a regulation which
directs that the criteria to be employed by the I.G. in determining
to impose and direct exclusions pursuant to sections 1128(a) and
(b) of the Act are binding also upon Administrative Law Judges,
appellate panels of the Departmental Appeals Board, and federal
courts in reviewing the imposition of exclusions by the I.G. 42
C.F.R. 1001.1(b); 58 Fed. Reg. 5617 - 18 (1993); FFCL 18. This
regulation was made applicable to cases which were pending on
January 22, 1993, the clarification's publication date. It is
undisputed that the present case was pending after January 22,
1993. 11/ I must now apply to this case the criteria for
determining the length of exclusions set forth in sections
1128(a)(1) and 1128(c)(3)(B) of the Act and 42 C.F.R. 1001.102.
FFCL 19.

The standard for adjudication contained in 42 C.F.R. 1001.102
provides that, in appropriate cases, an exclusion imposed pursuant
to section 1128(a)(1) of the Act may be in excess of the five-year
mandatory minimum period if any of the six aggravating factors set
out in 42 C.F.R. 1001.102(b) are found to be present. FFCL 21,
37.

The six factors mentioned at 42 C.F.R. 1001.102(b)(1) -(6) are
the only ones classified by the regulations as aggravating factors.
12/ The I.G. has the burden of proving that aggravating factors
exist which justify increasing an exclusion imposed pursuant to
section 1128(a)(1) beyond the minimum mandatory five-year period.
FFCL 23. In this case, the I.G. contends that the aggravating
factors identified at 42 C.F.R. 1001.102(b)(1),
1001.102(b)(3), and 1001.102(b)(6) are present.

A. The evidence establishes that the aggravating factor identified
at 42 C.F.R. 1001.102(b)(1) is present.

Petitioner contended that he pled guilty to a single misdemeanor
count, and that the large amount of restitution which he was
required to pay "should not be used against him now." P. Br. at 2.
The regulations place no such prohibition on the scope of my
inquiry. On the contrary, the language of 42 C.F.R.
1001.102(b)(1) specifically states that "[t]he entire amount of
financial loss to [Medicare and State health care] programs will be
considered, including any amounts resulting from similar acts not
adjudicated, regardless of whether full or partial restitution has
been made to the programs." Thus, in assessing the financial
damage caused by Petitioner to the Nevada Medicaid program, I am
permitted to look beyond the single misdemeanor count to which
Petitioner pled guilty and consider, additionally, the counts
contained in the Criminal Complaint attached as Exhibit B to the
Memorandum of Plea Negotiations (Plea Memorandum) executed by
Petitioner with the State of Nevada.

The misdemeanor count to which Petitioner pled charged him with
unlawfully obtaining money from the Nevada Medicaid program in an
amount less than $250. However, the Criminal Complaint attached as
Exhibit B to the Plea Memorandum charged Petitioner with eight
felony counts and one misdemeanor count of obtaining money by false
pretenses from the Nevada Medicaid program. Each felony count in
the Criminal Complaint attached as Exhibit B to the Plea Memorandum
charged Petitioner with unlawfully obtaining money from Nevada
Medicaid "in an amount in excess of $250." I.G. Ex. 1. The amount
of financial loss evidenced by these unadjudicated felony counts,
which all allege Medicaid fraud, indicate that the financial damage
to the Nevada Medicaid program resulting from Petitioner's criminal
activities was at least $1500 and, in all probability,
substantially more.

Moreover, the I.G. offered additional evidence of financial damage
to the Medicaid program. I.G. Ex. 6 consists of copies of three
Medicaid reimbursement checks paid to Petitioner and also,
corresponding recipient account information for each check which
shows the names of the four patients who were the subjects of the
Nevada PRO's review and who were included in the Criminal Complaint
attached as Exhibit B to the Plea Memorandum. See I.G. Ex. 8. The
checks are in the amounts of $9,356.40, $8,756.12, and $6,729.82 (a
total of $24,842.34), and form the basis of counts 4, 7, and 8,
respectively, in the Criminal Complaint attached as Exhibit B to
the Plea Memorandum. FFCL 46. The language contained in counts 4,
7, and 8 stated that Petitioner had "willfully, unlawfully,
knowingly and designedly, with the intent to cheat and defraud,
obtain[ed] money from the Nevada Medicaid program, . . . by falsely
claiming that he rendered professional services to . . . patients
. . . when in fact, he did not." I.G. Ex. 1. Petitioner's receipt
of these Medicaid monies as payment for professional services which
he allegedly did not render constitutes further evidence that the
Nevada Medicaid program suffered substantial financial damage at
the hands of Petitioner.

In addition, the uncontroverted evidence of record shows that, in
executing the Plea Memorandum with the State of Nevada, Petitioner
agreed to pay the sum of $300,000 to the State of Nevada as
restitution, to be assessed on the following basis: $35,624.36 as
restitution; $38,192.06 for costs of investigation and enforcement;
and $226,183.58 as statutory penalties. FFCL 7. As part of the
executed Plea Memorandum, Petitioner agreed that all of the
aforementioned payments would be made by negotiable instruments
made payable to the "State of Nevada" and delivered to the Medicaid
Fraud Control Unit of the Office of the Nevada Attorney General.
FFCL 7. The Justice Court of Las Vegas Township (Las Vegas court)
accepted Petitioner's plea of guilty, and, on March 31, 1992,
sentenced him to pay restitution of $300,000 to the State of Nevada
according to the above terms. FFCL 8, 9. The fact that the Las
Vegas court sentenced Petitioner to pay $35,624.36 specifically as
restitution to the State of Nevada establishes further that the
acts which resulted in his conviction, or similar acts, cost the
Medicaid program an enormous amount of money, far in excess of
$1500.

Based on the aforementioned evidence, the aggravating factor
identified at 42 C.F.R. 1001.102(b)(1) is thus present in
Petitioner's case.

B. The evidence establishes that the aggravating factor identified
at 42 C.F.R. 1001.102(b)(3) is present.

The misdemeanor count to which Petitioner pled charged him with
falsely claiming to have "rendered professional services to certain
patients, when in fact, [he] [had] not." I.G. Ex. 1. I find that
Petitioner's failure to render the services for which he sought,
and received, payment from the Nevada Medicaid program did cause "a
significant adverse physical, mental, or financial impact on one or
more program beneficiaries" which is the aggravating factor
identified at 42 C.F.R. 1001.102(b)(3). FFCL 24.

In a letter to the Nevada Medicaid program dated November 18, 1992,
the QRC of the Nevada PRO stated that it had identified serious
quality of care problems in its review of the cases of five
Medicaid patients in which Petitioner was the attending physician.
FFCL 40, 42. The five Medicaid patients who were the subjects of
the QRC review had all been admitted to the adolescent or adult
psychiatric units of Lake Mead Hospital with the diagnosis of major
depression associated with suicidal ideation. FFCL 41.

The QRC concluded that the quality of care with respect to these
five patients "was compromised and presented significant risk to
the patients." FFCL 42. The QRC of the Nevada PRO made the
following specific findings, which were common to all of the five
Medicaid patients, and which were stated in its November 18, 1992
letter:

a. there was no substantiation for the diagnoses ofmajor
depression;

b. there was an inadequate and delayed diagnosticworkup with
an inadequate differential diagnosis;

c. the cases lacked direction, discharge criteria,and clear
goals;

d. detoxification was done without physicianmonitoring;

e. telephone orders were documented, but there wereonly
minimal psychiatric assessments noted intheprogress notes;

f. medications were prescribed without a thoroughevaluation
of the patient being done, and withoutappropriate psychiatric
rationale documented for itsuse; and monitoring while on medication
wasinadequate.

g. there was repeated mention of stressful anddisruptive life
circumstances, but these wentunaddressed and unchanged at
discharge.

FFCL 43.

Moreover, Investigator Jeanette Supera of the Medicaid Fraud
Control Unit of the Nevada Attorney General's Office, found that
the five Medicaid patients who were the subjects of the QRC review
were also Medicaid recipients for whom Petitioner had submitted
claims and received reimbursement for services he had not provided.
Ms. Supera stated that four of these five Medicaid patients were
included in the false claim counts set forth in the Criminal
Complaint attached as Exhibit B to the Plea Memorandum. FFCL 44.


Under 42 C.F.R. 1001.102(b)(3), I am not limited to considering
the acts that resulted in Petitioner's conviction (i.e., the
misdemeanor count), but can consider "similar acts" as well. I
note that each of the eight felony counts in the Criminal Complaint
attached as Exhibit B to the Plea Memorandum charged Petitioner
with unlawfully obtaining money from the Nevada Medicaid program
"by falsely claiming that he rendered professional services" to
patients, when in fact, he had not. 13/ I.G. Ex. 1.

Based on the aforementioned evidence, I find that Petitioner has
engaged in a pattern of harmful conduct toward Medicaid recipients.
The I.G. contended that the individuals who were dependent on
Petitioner for psychiatric care were deprived of services to which
they were entitled, and which may have been critical to their
well-being. I.G. Br. at 11; I.G. Rep. at 4 - 5. I concur.
Petitioner neglected patients, failed to provide the psychiatric
services for which he billed and received Medicaid payments, and
gave inadequate patient assessments and monitoring. Among its
findings, the QRC of the Nevada PRO stated that detoxification was
done without physician monitoring, and medications were prescribed
without a thorough evaluation of the patient, and without
appropriate psychiatric rationale documented for its use.
Additionally, the QRC found that Petitioner's monitoring of
patients while they were on medication was inadequate. By his
irresponsible and inappropriate conduct, Petitioner subjected his
patients to significant risks and jeopardized their physical and
mental health. As a result, Petitioner's conduct had "a
significant adverse physical, mental, or financial impact on one or
more program beneficiaries or other individuals". Thus, the
aggravating factor enunciated at 42 C.F.R. 1001.102(b)(3) is met
in this case. FFCL 45.
C. The evidence establishes that the aggravating factor identified
at 42 C.F.R. 1001.102(b)(6) is present.

Under 42 C.F.R. 1001.102(b)(6), if "an individual or entity has
at any time been overpaid a total of $1500 or more by Medicare or
State health care programs as a result of improper billings," the
period of exclusion may be lengthened. Because the aggravating
factors set forth at 42 C.F.R. 1001.102(b)(1) and (b)(6) are
essentially the same, any analysis of whether these factors exist
in any given case would most likely be based on the identical
factual predicate. As I discussed earlier, I found that the
aggravating factor enunciated at 42 C.F.R. 1001.102(b)(1) was
present, based on the amount of financial loss to the Medicaid
program evidenced by the unadjudicated felony counts, the copies of
the Medicaid reimbursement checks paid to Petitioner, and the
amount of restitution Petitioner was ordered to pay the State of
Nevada ($35,624.36). Supra, at 19 - 21. I find that this factual
predicate also proves the existence of the aggravating factor set
forth at 42 C.F.R. 1001.102(b)(6). FFCL 47. Accordingly, I
conclude that the total amount of overpayments received by
Petitioner from Medicaid as a result of Petitioner's improper
billings was in excess of $1500. Thus, I find that the aggravating
factor identified at 42 C.F.R. 1001.102(b)(6) is met in this
case. FFCL 47.

III. There are no mitigating factors present in this case.

Petitioner has not offered any credible evidence to rebut the
I.G.'s arguments. In fact, other than stating that "the large
amount of restitution paid [by Petitioner] should not be used
against him now" (P. Br. at 2), Petitioner has not directly
responded to any of the aggravating factors set forth in the
documents submitted by the I.G. FFCL 48.

The only evidence Petitioner offered as an attempt to show
mitigation in this case was P. Ex. 1-4. As previously discussed in
the Background, supra p. 2-6, I determined that P. Ex. 1-4 are
irrelevant and thus, I rejected P. Ex. 1-4.

Petitioner's argument that he did not commit any fraud on the
Medicaid program despite his guilty plea is similarly without merit
here. Order and Notice of Hearing, dated July 9, 1993. In his
brief, Petitioner admitted to the I.G.'s proposed findings relating
to his conviction for fraudulently obtaining money from the Nevada
Medicaid program. P. Br. at 3. The Nevada Medicaid program is a
State health care program within the meaning of section 1128(h) of
the Act. FFCL 34. Thus, Petitioner's criminal acts were directed
against the Medicaid program, and any attempt to argue the contrary
is specious.
IV. A 10-year exclusion is reasonable.

The multiple aggravating factors present in Petitioner's case lead
to the conclusion that Petitioner has been and remains an unfit
health care provider and a highly untrustworthy individual.
Petitioner has offered nothing to rebut the aggravating factors.
He has not proved the existence of even one mitigating factor under
the regulations. FFCL 49.

The fact that Petitioner was ordered to pay $35,624.36 as
restitution to the State of Nevada alone warrants an exclusion of
beyond five years. This amount is indicative of the substantial
program-related harm caused by Petitioner. Although the I.G. did
not submit any information as to the basis of this restitution
amount, an inference can be made that the $24,842.34 total of the
three Medicaid reimbursement checks paid to Petitioner (discussed
supra) accounts for a portion of the $35,624.36 restitution amount.


In addition to causing financial damage to the Medicaid program,
Petitioner, in pleading guilty, admitted that he had falsely
claimed to have provided professional services to patients, when in
fact, he had not provided such services. Thus, with respect to
certain patients, Petitioner jeopardized their health and
completely breached his duty of care to them. Supra, at 21 - 23.
The five Medicaid patients for whom Petitioner was the attending
physician and who were the subjects of the Nevada PRO's review were
dependent on Petitioner for appropriate psychiatric care and
treatment. (Four of these five Medicaid patients were included in
the false claim counts set forth in the Criminal Complaint attached
as Exhibit B to the Plea Memorandum). Petitioner neglected his
patients, failed to provide the psychiatric services for which he
billed and received Medicaid payments, and gave inadequate patient
assessments and monitoring. By failing to provide these patients
with adequate and responsible psychiatric care, Petitioner
displayed a callous disregard for their mental health and
well-being. By neglecting his patients, who were Medicaid
recipients, Petitioner subjected them to risks of both physical and
psychological harm. See FFCL 43.
Petitioner has expressed no remorse for the consequences of his
egregious lack of care to his patients. He has simply
characterized this case as one involving improper billing. Order
and Notice of Hearing, dated July 9, 1993; P. Br. at 3. While
fraudulent billing is an issue in this case, another, more serious,
issue which is also before me is the lack of proper care and
treatment provided by Petitioner to his patients. At no time has
Petitioner acknowledged the serious quality of care problems
identified by the QRC of the Nevada PRO. Petitioner, instead, has
merely asserted that he should only be subject to an exclusion of
five years and that he wishes to work with indigent patients. P.
Br. at 2 - 3; Letter, dated May 27, 1994. Petitioner apparently
fails to appreciate or comprehend the serious risks to which he
subjected his patients.

Petitioner has demonstrated that he is an individual who is capable
of engaging in false and fraudulent actions. He has failed to show
that he is no longer a threat to the Medicare and State health care
programs. FFCL 53. Petitioner has attempted to minimize the
overall impact of the financial harm he caused the Medicaid program
by focusing on the single misdemeanor count to which he pled
guilty. However, the serious nature of his criminal conviction is
evidenced by the severe terms of the Las Vegas court's sentence.
The Las Vegas court ordered Petitioner to pay $226,183.58 in
statutory penalties, over six times the amount of restitution.
Furthermore, Petitioner agreed to be excluded from Nevada Medicaid
for 10 years.

As I stated earlier (supra at 6), during the course of this case,
I gave Petitioner several opportunities to respond to the
aggravating factors alleged by the I.G. and to further explain his
conduct. Letter Closing the Record, dated March 16, 1994; Letter,
dated May 27, 1994; Order, dated June 2, 1994; Letter, dated June
24, 1994. However, Petitioner submitted no evidence to rebut the
aggravating factors.

In view of the foregoing, I conclude that, absent any mitigating
evidence, the minimum five-year exclusion is not sufficient to
protect the federally-financed health care programs in this case.
In other cases, I have concluded that criminal conduct similar to
that of Petitioner in this case warranted an exclusion of 10 years.
See Arthur V. Brown, M.D., DAB CR226 (1992); Domingos R. Freitas,
DAB CR272 (1993). In Freitas, Petitioner violated his duties as a
pharmacist by dispensing prescription medications without
authorization. In doing so, he subjected his customers to serious
risks and jeopardized their health and safety. Id. The present
case is analogous to Freitas, for Petitioner here has violated his
duties as a psychiatrist and jeopardized the mental and physical
health of his patients.

I find that the presence in this case of the aggravating factors
specified at 42 C.F.R. 1001.102(b)(1), 1001.102(b)(3), and
1001.102(b)(6) warrant imposition of a 10-year exclusion of
Petitioner from Medicare and State health care programs. FFCL 51.
The amount of financial damage to the Medicaid program, combined
with the physical and mental harm to Medicaid recipients caused by
Petitioner, warrant a 10-year exclusion.

The Medicare and Medicaid programs are vulnerable to unscrupulous
providers. The remedial purpose of section 1128 of the Act is to
protect the integrity of 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 to treat beneficiaries and recipients. FFCL 50.
Petitioner's unlawful conduct is the type of misconduct Congress
sought to prevent when it enacted section 1128 of the Act. There
is nothing in the record to suggest that Petitioner has recognized
the nature of the harm he caused the Medicaid program and its
recipients. He has demonstrated a lack of understanding of the
significance of the unlawfulness of his conduct. I find that a
lengthy exclusion is needed in this case to satisfy the remedial
purposes of the Act and to protect the Medicare and Medicaid
programs and its beneficiaries and recipients from future
misconduct by Petitioner. FFCL 54.

By any standard, the criminal conduct for which Petitioner was
convicted is serious. The multiple and significant aggravating
factors present in this case, with no offsetting mitigating factors
present, justify excluding Petitioner for 10 years. FFCL 52. I
conclude that the 10-year exclusion imposed and directed against
Petitioner by the I.G. is not extreme or excessive, and therefore,
must stand. FFCL 55.


CONCLUSION

Based on the law and the evidence, I conclude that the 10-year
exclusion imposed and directed against Petitioner by the I.G. is
reasonable and must stand. FFCL 56.


__________________________
Edward D. Steinman
Administrative Law Judge

1. The State health care programs from which Petitioner was
excluded are defined in section 1128(h) of the Social Security Act
and include the Medicaid program under Title XIX of the Act.
Unless the context indicates otherwise, I use the term "Medicaid"
hereafter to refer to all State health care programs listed in
section 1128(h).

2. The parties' submissions and my Findings of Fact and
Conclusions of Law will be cited as follows:

I.G.'s Brief I.G. Br. at (page)

I.G.'s Proposed Findings of I.G. Prop. Finding (number)
Fact and Conclusions of
Law

Petitioner's Findings of P. Br. at (page)
Fact and Conclusions of
Law

I.G.'s Reply Brief I.G. R. Br. at (page)

My Findings of Fact and FFCL (number)
Conclusions of Law

3. Because Petitioner's counsel did not identify these proposed
exhibits, I have identified them in the following manner: the
polygraph examination report, with the accompanying curriculum
vitae, is P. Ex. 2, the letter dated April 26, 1994, is P. Ex. 3,
and the letter dated April 27, 1994, is P. Ex. 4.

4. The record contains no evidence that the State of Nevada has
requested a waiver of Petitioner's exclusion.

5. The I.G. incorrectly characterized her first submission as
a "Memorandum in Support of a Motion for Summary Disposition."
Although I am disposing of the issues in this case without holding
an in-person hearing, this is not a summary disposition. Because
Petitioner waived his right to an in-person hearing, I am deciding
all disputed factual and legal issues based on the documentary
evidence of record.

6. In this section, I have adopted I.G. Prop. Findings 1-6,
8-10, 12-25, 28, and 30. Petitioner did not contest these specific
findings of fact and conclusions of law. P. Br. at 2-3.
Therefore, I have adopted these findings of fact and conclusions of
law, with only minor editorial changes. Where necessary for
purposes of clarity, I have added additional wording in brackets.
I have independently reviewed the record and determined that the
findings have a basis in the record. Accordingly, I have supplied
the citations to the record that support the findings. Although
Petitioner did not contest I.G. Prop. Finding 26, I did not include
this finding among these uncontested findings because I assume that
Petitioner agreed to this finding in error, since adopting this
finding would have rendered Petitioner's appeal moot.

7. In her proposed findings, the I.G. mistakenly states the
date of Petitioner's sentencing as March 21, 1992. I.G. Prop.
Finding 10.

8. In her proposed findings, the I.G. incorrectly referred to
the State agency as the Nevada Department of Health Services. I.G.
Prop. Finding 12.

9. The I.G.'s proposed findings contained two errors, which I
have corrected here. The I.G. incorrectly stated the date of the
prehearing conference to be July 9, 1993, instead of May 28, 1993.
The I.G. also referred to section 1128(c)(3)(B) as 1138(c)(3)(B).
I.G. Prop. Finding 15.


10. Although Petitioner did not admit to the I.G.'s Prop.
Finding 11 which pertained to the existence of a program related
offense, Petitioner has admitted to all of the I.G.'s proposed
findings relating to his conviction for fraudulently obtaining
money from the Nevada Medicaid program. P. Findings at 3.
Moreover, Petitioner did not dispute that he was subject to a
five-year exclusion. Id. at 2, 3. Therefore, a reasonable reading
of Petitioner's position is that he acknowledges that the I.G. has
authority to exclude him for at least five years under sections
1128(a)(1) and 1128(c)(3)(B) of the Act.

11. The I.G.'s Notice to Petitioner, informing him of his
10-year exclusion, is dated March 23, 1993. I.G. Ex. 4.

12. In the Notice sent to Petitioner informing him of his
exclusion, the I.G. stated that the following circumstances were
taken into consideration in arriving at Petitioner's period of
exclusion: (1) the statutory fines and penalties imposed by the
court amounted to more than $500,000; (2) the commission of the
crime evinced planning and premeditation; and (3) Petitioner agreed
to be excluded from the Medicaid program for 10 years. I have
accepted evidence concerning the aggravating factors found at 42
C.F.R. 1001.102(b), even though they were not mentioned in the
Notice because the I.G. provided Petitioner adequate notice that at
least some of the aggravating factors set forth in the regulations
were applicable at the May 28, 1993 telephone prehearing
conference. Order and Notice of Hearing, dated July 9, 1993.
Moreover, in her motion for summary disposition, the I.G. argued
that several aggravating factors were applicable to this case.
Petitioner was given ample opportunity to rebut the evidence and
arguments made by the I.G.

13. Each count listed in the Criminal Complaint attached as
Exhibit B to the Plea Memorandum referred to a corresponding
exhibit attached to the complaint. (E.g., Count 1 of the complaint
referred to an "Exhibit 1 attached hereto;" Count 2 referred to an
"Exhibit 2 attached hereto;" and so on). These exhibits contained
the names of patients, the purported dates of service, and the
amount Medicaid paid, as well as other information. The I.G. did
not submit these specific exhibits; thus, they are not part of this
record.