$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Sudarshan K. Singla, M.D., Petitioner,
- v. -
The Inspector General.
DATE: September 6, 1994
Docket No. C-94-296
Decision No. CR332
DECISION
By letter dated December 14, 1993, Sudarshan K. Singla, M.D.,
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, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social Services
programs. (I use the term "Medicaid" in this Decision when
referring to programs other than Medicare.) The I.G. explained
that the five-year exclusion was mandatory under sections
1128(a)(1) and 1128(c)(3)(B) of the Social Security Act (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 a hearing. The I.G. moved
for the case to be decided on the basis of written submissions
without an in-person hearing. 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. I conclude
that the I.G. correctly determined 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. During the period relevant to this case, Petitioner was a
physician practicing in the State of New York.
2. Petitioner was a member of a group practice incorporated as M.
M. Management Services, Inc. (MM), which operated under the name
Midwood Medical Clinic, in Brooklyn, New York. I.G. Ex. 3 at p. 4;
I.G. Brief (I.G. Br.) at 2; Petitioner's Brief (P. Br.) at 4. 1/
3. On September 27, 1991, Petitioner was indicted by a grand jury
in Brooklyn. He was charged under New York Penal Law with one
count of grand larceny and five counts of offering a false
instrument for filing. I.G. Ex. 2.
4. On or about February 5, 1993, Petitioner was convicted in the
New York Supreme Court, Kings County, on his plea of guilty to
offering a false instrument for filing, second degree, a lesser
included misdemeanor offense under the second count of the
indictment. I.G. Ex. 3, 4.
5. Petitioner admitted to the court that, although he was not
qualified to read an echocardiogram and had not read
echocardiograms for MM, he signed forms MM used to bill Medicaid,
knowing that his signature conveyed the impression that he had read
echocardiograms and that Medicaid would thus be induced to pay the
claims, which included compensation to him for signing the forms.
I.G. Ex. 3 at 8.
6. The court required Petitioner to pay a fine and gave him a
conditional discharge. I.G. Ex. 4.
7. 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 (May 13, 1983).
8. Filing false Medicaid claims constitutes clear program-related
misconduct, sufficient to mandate exclusion.
9. Petitioner's alleged lack of criminal intent is not relevant.
10. It is not unlawful for the same exclusionary period to be
imposed upon individuals who commit crimes of varying degrees of
severity.
PETITIONER'S ARGUMENT
Petitioner alleged that he never received any money for signing the
echocardiogram reports on which the false billing was based which
led to his conviction. Request for Hearing. He alleged that he
entered a plea of guilty without knowledge of the consequences it
would have on his practice of medicine. Id. Petitioner contended
that the offense to which he pled guilty was not related to the
delivery of an item or service under Medicare or Medicaid and thus
should have been subject only to a permissive, not a mandatory,
exclusion. P. Br. He contended that, inasmuch as he was convicted
of only a misdemeanor and not convicted of having acted with
fraudulent intent, his exclusion should be less than five years.
Id.
DISCUSSION
The first statutory requirement for mandatory exclusion pursuant to
section 1128(a)(1) of the Act is that the individual in question
was convicted of a criminal offense under federal or State law.
Section 1128(i) of the Act states that there are essentially four
possible dispositions of a criminal case which will be treated as
convictions. These are: entry by the court of a judgment of
conviction (it is immaterial whether there is an appeal pending or
whether the judgment is ultimately expunged); a formal finding of
guilt by the court; acceptance by the court of a plea of guilty or
nolo contendere; and deferral of judgment by the court, wherein a
guilty defendant who complies with certain court-imposed conditions
is enabled to preserve a clean record.
In the case at hand, Petitioner appeared in court and pled guilty,
and the court accepted his plea. Furthermore, Petitioner
acknowledges that he was
convicted.
The other requirement of section 1128(a)(1) of the Act is that the
conviction must be related to the delivery of an item or service
under Medicare or Medicaid.
It is well-established in numerous, consistent, and longstanding
DAB decisions (some of which have been appealed to federal court
and been upheld) that a criminal conviction based on filing false
claims for reimbursement from Medicaid or Medicare mandates
exclusion under 1128(a)(1), even if such conviction did not itself
involve the physical delivery of items or services. Jack W.
Greene, DAB CR19, aff'd, DAB 1078 (1989), aff'd sub nom. Greene v.
Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990). I find that
Petitioner's criminal activity which gave rise to the present case
-- i.e., his part in MM's willfully submitting documents to
Medicaid in support of claims for reimbursement for nonexistent
services -- similarly constitutes financial misconduct related to
the delivery of Medicaid services and also mandates exclusion.
To be sure, Petitioner's analysis of the statutory history of
exclusion law reaches a different conclusion (i.e., that financial
crimes, such as fraud, are to be punished only through the
permissive exclusion process) but I find nothing in his reasoning
that casts serious doubt on DAB precedent. In light of the
extensive and consistent nature of the DAB precedent, and noting
that the principles involved have been adopted by appellate panels
of the DAB, whose decisions are binding on me, I feel constrained
to follow such precedent.
As to Petitioner's alleged lack of intent to defraud, the law does
not require proof of Petitioner's intent. Rather, proof that a
criminal conviction has occurred, and that the offense is
program-related, ends the inquiry as to whether mandatory exclusion
is justified. DeWayne Franzen, DAB 1165 (1990). When the minimum
mandatory period is at issue, the ALJ cannot look behind the fact
of conviction or consider evidence intended to mitigate the
exclusion. Peter J. Edmonson, DAB 1330 (1992).
However, I note that Petitioner admitted to the State court that he
intentionally caused to be submitted to Medicaid at least one
report which falsely represented that he had provided
echocardiographic services to a particular Medicaid recipient. In
his plea colloquy, Petitioner stated that he signed the report
knowing that it would give the impression that he had read the
echocardiogram for MM. He said also that he was aware that such
document would be relied upon by Medicaid to pay the submitted
claims and that the claim included an amount for his compensation
for having signed the report. Based on the above, I conclude that,
regardless of whether Petitioner's intent satisfied some provision
of State law, the undisputed facts show that he committed a
financial crime against the Medicaid program.
Petitioner argues also that excluding him for five years would
unconstitutionally subject him to exactly the same penalty as is
imposed upon persons who committed far more serious offenses.
However, I find that Petitioner's argument is without merit.
Although government imposition of fines or forfeitures arising out
of civil or criminal charges can, indeed, be deemed
unconstitutional if the fines are excessive 2/, Petitioner has
not established that this principle is applicable to the facts of
his case. First, he has not shown that his exclusion -- which
amounts to nothing more than the government's refusal to do
business with him -- is the equivalent of a fine or forfeiture
(since, among other things, his existing property was not taken
from him). Second, given that Congress has deemed it to be of
special significance to society, I see no reason why the
establishment by Congress of a minimum sanction as a consequence of
having been convicted of a particular crime would be barred by the
Constitution.
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 for a
program-related criminal offense. The I.G.'s five-year exclusion
is, therefore, sustained.
__________________________
Joseph K. Riotto
Administrative Law Judge
1. Petitioner offered one exhibit, which he designated "A." The
I.G. offered four exhibits. I admit all of the exhibits. I
re-marked Petitioner's exhibit simply as "P. Ex.," although I do
not refer to it in the Decision. I refer to the I.G.'s exhibits as
"I.G. Ex. (number) at (page)."
2. See Austin v. U.S., 113 S.Ct. 2801, 2806 (1994) (excessive
fines clause of the Eighth Amendment to the Constitution, which
limits the government's power to extract payments, applies to civil
proceedings as well as criminal prosecutions).