$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Charles Addo Yobo, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: March 9, 1995
Docket No. C-94-423
Decision No. CR361
DECISION
By letter dated June 27, 1994, Charles Addo Yobo, M.D., Petitioner
herein, was notified by the Inspector General (I.G.), United States
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 for a period of five years. 1/ The I.G. asserted that an
exclusion of at least five years is mandated by sections 1128(a)(1)
and 1128(c)(3)(B) of the Social Security Act (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.
The I.G. moved for summary disposition.
Because I have determined that there are no material factual issues
in dispute, and that the only matters to be decided are the legal
significance of the undisputed facts, I have decided the case on
the basis of the parties' written submissions. 2/
I conclude that Petitioner is subject to the minimum mandatory
exclusion provisions of sections 1128(a)(1) and 1128(c)(3)(B) of
the Act, and affirm the I.G.'s determination to exclude Petitioner
from participation in Medicare and Medicaid 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. The I.G. has the authority to
extend the length of a mandatory exclusion if any of the
aggravating factors listed at 42 C.F.R. 1001.102(b) (1992) are
present. Only if the aggravating factors are found to be present,
and an exclusion for longer than five years is justified, may the
I.G. also consider the mitigating factors at 42 C.F.R.
1001.102(c) to reduce the exclusion. The mandatory exclusion may
not be reduced to less than five years. 42 C.F.R. 1001.102(c).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. During the period relevant to this case, Petitioner was a
physician, licensed by the State of New York. I.G. Ex. 1 at 5.
2. Petitioner was indicted by a grand jury of the United States
District Court, Southern District of New York (the court), for
conspiracy, mail fraud, racketeering, and money laundering. I.G.
Ex. 1
3. The indictment charged that Petitioner participated in an
unlawful plan in which he billed Medicaid for unwarranted
diagnostic tests and examinations performed on Medicaid patients.
The indictment charged also that Petitioner authorized physicians'
assistants to write prescriptions for drugs which were medically
unnecessary and billed the cost of the drugs to Medicaid. IG. Ex.
1.
4. Petitioner was charged by Superseding Information with
conspiracy to commit Medicaid fraud and mail fraud. I.G. Ex. 3.
5. On May 14, 1993, pursuant to a plea agreement, Petitioner pled
guilty to the charges of mail fraud (i.e., using the mails to
receive Medicaid checks obtained through fraud), conspiracy to
commit mail fraud and Medicaid fraud. I.G. Ex. 3 at 1; I.G. Ex. 5
at 2.
6. The court dismissed the remaining counts of the indictment.
Ex. 4.
7. The court entered judgment against Petitioner for mail fraud
and conspiracy to commit mail fraud and Medicaid fraud. I.G. Ex.
3; Ex. 4.
8. The court sentenced Petitioner to imprisonment for a period of
one year and one day, and required him to make restitution to New
York State in the amount of $1,500,000. I.G. Ex. 4.
9. Petitioner cooperated with the government in its investigation
into abuse of the Medicaid program. I.G. Ex. 3; I.G. Ex. 5 at 2.
10. Petitioner's guilty plea, and the court's acceptance of that
plea, constitutes a conviction, within the meaning of sections
1128(a)(1) and 1128(i)(3) of the Act. FFCL 4-7.
11. Petitioner was convicted of a criminal offense related to the
delivery of a health care item or service under Medicaid, within
the meaning of section 1128(a)(1) of the Act. FFCL 4, 6, 9.
12. Even if mitigating factors are present, the law requires that
an exclusion imposed pursuant to section 1128(a)(1) and
1128(c)(3)(B) must be for at least five years. 42 C.F.R.
1001.102.
13. The I.G. properly excluded Petitioner, pursuant to section
1128(a)(1) of the Act, for a period of five years as required by
the minimum mandatory exclusion provision of section 1128(c)(3)(B)
of the Act.
14. Neither the I.G. nor an administrative law judge (ALJ) has the
authority to reduce a five-year minimum exclusion mandated by
sections 1128(a)(1) and 1128(c)(3)(B) of the Act.
PETITIONER'S ARGUMENT
Petitioner asserts that, in light of his cooperation with the
government, a five-year exclusion is excessive.
DISCUSSION
Petitioner's mandatory exclusion may not be reduced to less than
five years.
An individual or entity must be excluded from participation in
Medicare and Medicaid pursuant to section 1128(a)(1) when two
elements are present: (1) the individual or entity has been
"convicted" of a criminal offense, within the meaning of section
1128(i) of the Act; (2) the criminal offense leading to the
conviction is related to the delivery of an item or service under
Medicare or Medicaid. In the present case, Petitioner admits that
he was "convicted" of a criminal offense, within the meaning of
section 1128(i)(3) of the Act. Section 1128(i)(3) states that "an
individual 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 pled guilty to mail fraud, and conspiracy to
commit mail fraud and Medicaid fraud, and the court accepted his
guilty plea. 3/ I.G. Ex. 3; I.G. Ex. 4.
Petitioner also does not contest the I.G.'s determination that he
was convicted of a criminal offense related to the delivery of a
health care item or service. It is well-established in
Departmental Appeals Board (DAB) decisions that filing false
Medicare or Medicaid claims relates to the delivery of items or
services under such programs and constitutes clear 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). Here,
Petitioner conspired to commit Medicaid fraud, and his mail fraud
and conspiracy to commit mail fraud offenses were related to the
delivery of an item or service under Medicaid, because his
conviction was for "billing the cost of . . . unnecessary drugs to
the Medicaid program." I.G. Ex. 1. I find, therefore, that the
offenses underlying Petitioner's conviction constitute criminal
fraud related to the delivery of Medicaid services.
Petitioner's only argument is that his cooperation with the
government was substantial, and, therefore, his five-year exclusion
is excessive and unjust. The I.G. does not dispute that Petitioner
cooperated with federal officials in the prosecution of his
co-defendants. Nor does the I.G. dispute that, under applicable
regulations, such cooperation would be considered a mitigating
factor, if the exclusion was for more than five years. In fact,
the I.G. did consider Petitioner's cooperation as mitigating, to
the extent that a five-year exclusion was imposed, even though
Petitioner's offense involved several aggravating factors. June
27, 1994 Notice of Exclusion.
As stated above, however, mandatory exclusions may not be for less
than five years. 42 C.F.R. 1001.102. An ALJ may not consider
mitigating factors such as cooperation when only the mandatory
minimum period of exclusion has been imposed. Doina M. Buzea,
M.D., DAB CR310 (1994). Neither the I.G. nor the ALJ is authorized
to reduce the five-year mandatory minimum exclusion. Stanley H.
Guberman, D.C., DAB CR111 (1990); Samuel W. Chang, M.D., DAB 1198
(1990). Thus, Petitioner's exclusion may not be reduced.
CONCLUSION
Sections 1128(a)(2) 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, due to his conviction of a
criminal offense related to the delivery of an item or service
under Medicaid.
Neither the I.G. nor the judge is authorized to reduce the
five-year minimum mandatory period of exclusion. Accordingly, the
five-year exclusion is sustained.
Joseph K. Riotto
Administrative Law Judge
1. In this decision, unless the context indicates otherwise, I
refer to all programs from which Petitioner has been excluded,
other than Medicare, as "Medicaid."
2. The I.G. submitted a brief which I cite as "I.G. Br. at
(page)," and five exhibits which I cite as "I.G. Ex. (number) at
(page)." Petitioner did not file a response to the I.G.'s brief.
Since Petitioner did not object to the exhibits offered by the
I.G., I admit into evidence I.G. Ex. 1-5. Petitioner stated his
position in his Request for a Hearing which I cite as "P. Hear.
Req."
3. The I.G. submitted a judgment of conviction to prove that
Petitioner's guilty plea for mail fraud had been accepted by the
court. See I.G. Ex. 4. The I.G. did not, however, submit any
court documents to demonstrate that the court accepted Petitioner's
guilty plea for conspiracy to commit mail fraud and conspiracy to
commit Medicaid fraud. In any event, since Petitioner did not
contest the I.G.'s assertion that the court accepted Petitioner's
guilty plea for the two conspiracy charges, I accept this assertion
as true. Thus, I find on the basis of the I.G.'s uncontested
assertion that Petitioner was convicted of conspiracy to commit
Medicaid fraud and mail fraud, within the meaning of section
1128(i)(3) of the Act.