$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Gary E. Wolfe, D.O.,
Petitioner,
- v. -
The Inspector General.
DATE: September 22, 1995
Docket No. C-95-015
Decision No. CR395
DECISION
I conclude that the 15-year exclusion the Inspector General (I.G.)
of the United States Department of Health and Human Services (DHHS)
imposed and directed against Gary E. Wolfe, D.O., Petitioner, from
participating in Medicare and other federally financed health care
programs is reasonable.
I. Procedural History
By letter dated October 19, 1994, the I.G. notified Petitioner
that, as a result of his conviction of a criminal offense related
to Medicare and other health care programs, he was being excluded
for 15 years from participating as a provider in the Medicare,
Medicaid, Maternal and Child Health Services Block Grant and Block
Grants to States for Social Services programs. 1/
The I.G. advised Petitioner that the exclusion of individuals
convicted of offenses such as his is mandated by section 1128(a)(1)
of the Social Security Act (Act). 2/ The I.G. further advised
Petitioner that for exclusions imposed pursuant to section 1128(a)
of the Act, a five-year minimum period of exclusion is required by
section 1128(c)(3)(B), and that Petitioner's 15-year period of
exclusion took into consideration six specific aggravating factors.
Petitioner filed a request for review of the I.G.'s action, and the
case was assigned initially to Administrative Law Judge Steven T.
Kessel. Judge Kessel determined without objection that the
administrative law judge's decision would be based upon written
submissions, there being no need for an in-person hearing. 3/ The
case was reassigned to me on April 14, 1995.
Upon careful consideration of the record before me, I find that
there exist no facts of decisional significance genuinely in
dispute and that the only matters to be decided are the legal
implications of the undisputed material facts.
II. Issue
The only issue is whether the 15-year exclusion which the I.G.
imposed and directed against Petitioner is reasonable.
III. Findings of Fact and Conclusions of Law
1. At all relevant times, Petitioner was a physician practicing
medicine in Pennsylvania. P. Br. at 5 - 6.
2. On May 24, 1993, Petitioner entered guilty pleas to eight
felony offenses charged by Indictment, in Case No. CR 92-318 in the
U.S. District Court for the Middle District of Pennsylvania,
specifically pleading guilty to Counts 1, 2, 15, 16, 23, 25, 27,
and 29 of the Indictment. I.G. Exs. 1 - 4.
3. Two of the counts to which Petitioner entered his guilty pleas,
Counts 1 and 15, charged Petitioner with knowingly submitting false
Medicare claims to a department or agency of the United States (in
violation of 18 U.S.C. 287). These two counts relate directly
to the delivery of services under Medicare. The other six counts
to which Petitioner entered guilty pleas charged Petitioner with
mail fraud offenses, and relate to claims submitted to Pennsylvania
Blue Shield (in violation of 18 U.S.C. 1341). I.G. Exs. 1 - 4.
4. The Secretary of DHHS (Secretary) has delegated to the I.G. the
authority to exclude individuals from participation in Medicare and
to direct their exclusion from participation in Medicaid. 53 Fed.
Reg. 12,993 (1988).
5. The I.G. is required to exclude Petitioner from participation
in Medicare and to direct his exclusion from participation in
Medicaid. Act, sections 1128(a)(1), 1128(c)(3)(B).
6. The minimum period of exclusion pursuant to section 1128(a)(1)
is five years. Act, section 1128(c)(3)(B).
7. Neither the I.G. nor an administrative law judge has the
authority to reduce the five-year minimum exclusion period mandated
by sections 1128(a)(1) and 1128(c)(3)(B) of the Act.
8. The I.G. proved five aggravating factors which can support an
exclusion longer than five years. 42 C.F.R. 1001.102(b)(1),
(2), (4), (5), (6).
9. The I.G. did not prove by a preponderance of the evidence that
Petitioner's offense had a significant adverse physical, mental, or
financial impact on program beneficiaries or other individuals. 42
C.F.R. 1001.102(b)(3).
10. Petitioner did not prove that there exist any mitigating
factors. 42 C.F.R. 1001.102(c)(1) - (3).
11. The evidence relevant to the aggravating factors proves
Petitioner to be untrustworthy to the extent that a 15-year
exclusion is reasonably necessary to protect the integrity of
federally financed health care programs and to protect program
beneficiaries and recipients. I.G. Exs. 1 - 18.
12. The 15-year exclusion imposed and directed against Petitioner
by the I.G. is reasonable. Findings 1 - 11.
IV. Discussion
A. An exclusion of at least five years is
mandatory.
Section 1128(a)(1) of the Act mandates the exclusion of individuals
who are convicted under federal or State law of a criminal offense
related to the delivery of an item or service under Medicare or
Medicaid.
Once it is shown that a program-related criminal conviction has
occurred, exclusion for at least five years is mandatory under
sections 1128(a)(1) and 1128(c)(3)(B). Petitioner admits that he
was convicted of a criminal offense related to the delivery of an
item or service under the Medicare program. Petitioner admits also
that the I.G. was required to exclude him for at least five years.
P. Br. at 27. Thus, the only issue is
whether the 15-year exclusion the I.G. imposed and directed against
Petitioner is reasonable.
B. The 15-year exclusion imposed and directed
against Petitioner is necessary to safeguard
Medicare and Medicaid, and program beneficiaries
and recipients, and, thus, comports with the
remedial purposes of the Act.
1. The Governing Law
Section 1128 of the Act is a remedial statute. Congress intended
that the Act, including section 1128(a)(1), be applied to protect
the integrity of federally funded health care programs, and the
welfare of program beneficiaries and recipients, from individuals
and entities who have been shown to be untrustworthy. Exclusions
imposed pursuant to section 1128 (including exclusions of more than
five years imposed under section 1128(a)(1)) have been found
reasonable only insofar as they are consistent with the Act's
remedial purpose. Robert Matesic, R.Ph., d/b/a Northway Pharmacy,
DAB 1327, at 7 - 8 (1992); Rosaly Saba Khalil, M.D., DAB CR353, at
9 (1995); Dr. Abdul Abassi, DAB CR390, at 3 (1995).
Prior to the promulgation of regulations governing exclusions
imposed pursuant to section 1128, the criteria used to evaluate the
trustworthiness of excluded parties, and the reasonableness of
exclusions, were derived from the Act itself. These criteria
encompassed any evidence relevant to an excluded party's
trustworthiness to provide care. Matesic, DAB 1327, at 7 - 8;
Abassi, DAB CR390, at 3.
Regulations published originally in January 1992 (42 C.F.R. Part
1001) establish the criteria by which the length of exclusions
imposed pursuant to section 1128 are now to be evaluated. These
regulations provide that, in cases involving exclusions imposed
pursuant to section 1128(a) of the Act, the reasonableness of the
length of any exclusion imposed for a period of more than five
years will be decided based on the presence of, and the weight
assigned to, certain aggravating and mitigating factors which the
regulations identify. 42 C.F.R. 1001.102(b)(1) - (6), (c)(1) -
(3); Abassi, DAB CR390, at 3 - 4.
Under the regulations, in any case in which the reasonableness of
an exclusion is at issue, an administrative law judge is obligated
to decide, using the factors contained in the regulations, whether
an exclusion of a particular length is reasonably necessary to
protect the integrity of federally financed health care programs
and the welfare of the programs' beneficiaries and recipients.
Abassi, DAB CR390, at 4;
Khalil, DAB CR353, at 10.
One consequence of the regulations is to limit the factors which an
administrative law judge can consider as relevant to an excluded
party's trustworthiness to provide care. For example, an
administrative law judge may no longer consider evidence relating
to a party's remorse for the party's crimes, nor may an
administrative law judge consider evidence relating to a party's
rehabilitation, as evidence of that party's trustworthiness.
Evidence of remorse or rehabilitation does not fall within the
mitigating factors contained in the regulations. Abassi, DAB
CR390, at 4; See Matesic, DAB 1327, at 7 - 8.
An exclusion imposed pursuant to section 1128(a)(1) of the Act must
not be punitive. Such exclusion must comport with the remedial
purpose of the Act. Moreover, the presence of aggravating factors
in a case is not itself a basis to exclude a party for a particular
length of time. In a case involving an exclusion imposed pursuant
to section 1128(a)(1), the presence of aggravating factors not
offset by the presence of a mitigating factor does not
automatically justify an exclusion of more than five years. The
regulations contain no formula for assigning weight to aggravating
and mitigating factors once the presence of any of these factors is
established. It is the task of the administrative law judge
(following the regulations and cognizant of the Act's remedial
purpose) to explore in detail and assign appropriate weight to, the
aggravating or mitigating factors present in a case. Abassi, DAB
CR390, at 4.
2. Petitioner's Criminal Offenses
Based on his guilty pleas (Finding 2), Petitioner was convicted of
program-related offenses with regard to two patients.
Specifically, while Petitioner was a treating physician, he
provided services to HB 4/ on or about December 29, 1987, and to AE
on or about October 25,
1988, and billed Medicare for services which were not performed.
I.G. Ex. 3 at 15.
Patient HB
Petitioner's treatment notes (P. Ex. 1) indicatethat
examination of HB's ears showed the presence of"dirt/wax." The
notation "[i]rrigate both ears" hasbeen scratched out, and the
notation "FB (foreignbody) removed R (right) ear" is included.
Regardinglab work, the blood tests SGOT and SGPT were orderedand
performed, to find out if there was aninflammation of the liver.
P. Br. at 15 - 17; P.Ex. 1.
Medicare was billed for removal of a foreign body from the ear
and for performance of a hepatitis panel (procedure code 80059),
which procedures were not performed. I.G. Ex. 3 at 15. Procedures
less expensive to Medicare, i.e., ear irrigation and a hepatic
panel (procedure code 80058), were performed, and Petitioner could
have billed for those procedures. I.G. Ex. 3 at 9 - 15; P. Br. at
15 - 17; P. Ex. 1.
Patient AE
Petitioner's treatment notes (P. Ex. 2) indicate that
examination of AE's abdomen revealed fullness in the right upper
quadrant. To Petitioner this indicated possible inflammation of
the liver, because AE's arthritis medication "has the potential to
cause liver dysfunction." P. Br. at 17 - 18. The blood tests SGOT
and SGPT were ordered and performed. P. Br. at 17 - 18; P. Ex. 2.
Medicare was billed for performance of a hepatitis panel
(procedure code 80059), which procedure was not performed. I.G.
Ex. 3 at 15. A procedure less expensive to Medicare, i.e., a
hepatic panel (procedure code 80058) was performed, and Petitioner
could have billed for that procedure. I.G. Ex. 3 at 9 - 15; P. Br.
at 17 - 18; P. Ex. 2.
Petitioner's convictions also encompassed non-program related
offenses. Specifically, Petitioner was convicted of mail fraud for
billing Pennsylvania Blue Shield for reimbursement through the U.S.
mail for a procedure consisting of the removal of a foreign body
from the ears of HB and three other patients, when that procedure
was not performed. I.G. Ex. 3 at 15 - 16. Also, Petitioner
submitted medical records through the mail to cover up the fact
that he had submitted claims to Pennsylvania Blue Shield for the
removal of foreign bodies from the ears of these patients when he
had not done so. I.G. Ex. 3 at 17.
During the proceeding in which the court accepted Petitioner's
guilty plea, the government asserted certain facts which Petitioner
did not contest. Specifically, the government asserted that, had
Petitioner's case gone to trial, Petitioner's patients and the
employees who irrigated those patients' ears would have testified
that, in the case of HB (as well as in the cases of three other
patients insured by Pennsylvania Blue Shield, not Medicare) where
Petitioner billed for removal of a foreign body from an ear, no
foreign body was removed. I.G. Ex. 3 at 13 - 14.
Further, the government asserted that Petitioner's billing
employees would have testified that Petitioner directed his billing
clerk to submit bills in such a way as to maximize Petitioner's
reimbursement. I.G. Ex. 3 at 12. Specifically, the government
asserted that Petitioner directed his billing clerk to bill for a
hepatitis panel (procedure code 80059) whenever the employee saw
"hep" or "SGOT" or "SGPT" on a patient's chart,
instead of billing
for the less expensive procedure codes they should have used (such
as procedure code 80058, a hepatic panel). As a result, the
government asserted that Petitioner was paid approximately three
times more for each claim on a private insurer and a substantial
amount more for each Medicare claim. I.G. Ex. 3 at 10 - 13. The
government asserted that Petitioner directed his employee to do
this in spite of the fact that Petitioner's office was not capable
of doing a hepatitis panel. I.G. Ex. 3 at 12.
Finally, the government asserted that one of Petitioner's billing
employees would have testified that she advised him that his
billing for hepatitis panels when, in fact, he had performed SGOT
and SGPT tests, was wrong. The government asserted Petitioner told
the employee that was the way he did it and the way she would do it
while she was working for him. I.G. Ex. 3 at 12 - 13.
As a result of Petitioner's conviction, he was sentenced to 15
months in prison and ordered to pay restitution of $34,593 to the
DHHS and $55,056 to Pennsylvania Blue Shield. I.G. Ex. 4.
3. Presence of Aggravating Factors
The regulations at 42 C.F.R. 1001.102 provide that, in
appropriate cases, an exclusion imposed under section 1128(a)(1)
may be for a period greater than five years when certain
aggravating factors are present and these factors are not offset by
certain enumerated mitigating factors. 42 C.F.R. 1001.102(b)(1)
- (6), (c)(1) - (3).
The regulations provide six factors only which may be considered
aggravating and a basis for lengthening an exclusion beyond five
years. 42 C.F.R. 1001.102(b)(1) - (6). These aggravating
factors are:
1. The acts resulting in the conviction, or
similar acts, resulted in financial loss to
Medicare or a State health care program of
$1500 or more;
2. The acts that resulted in the conviction,
or similar acts, were committed over a period
of one year or more;
3. The acts that resulted in the conviction, or
similar acts, had a significant adverse physical,
mental or financial impact on one or more program
beneficiaries or other individuals;
4. The sentence imposed by the court included
incarceration;
5. The convicted individual or entity has a prior
criminal, civil, or administrative sanction record;
6. The individual or entity has at any time been
overpaid a total of $1500 or more by Medicare or by
a State health care program as a result of improper
billing.
42 C.F.R. 1001.102(b)(1) - (6).
In this case, the I.G. has proved the presence of five of the six
aggravating factors asserted in her Notice. I agree with
Petitioner that no significant adverse physical or mental impact on
a program beneficiary or other individual has been proved. P. Br.
at 33 - 34. There may have been a significant adverse financial
impact on Medicare beneficiaries, by virtue of their 20 percent
co-pay portion of Petitioner's inflated billings. However, absent
specific proof regarding financial impact, I conclude that the
third aggravating factor has not been proved. 42 C.F.R.
1001.102(b)(3).
Regarding the first aggravating factor, the I.G. has proved that
Petitioner's criminal offenses caused a loss of more than $1500 to
Medicare. Specifically, Petitioner's guilty plea was accompanied
by his admission that he knowingly and wilfully caused false bills
to be submitted, with the result that he received $34,593 in
Medicare reimbursement to which he was not entitled. I.G. Exs. 3,
4 at 4; P. Br. at 33 - 34.
Regarding the second aggravating factor, the I.G. proved and the
Petitioner admits (P. Br. at 33) that Petitioner's criminal conduct
lasted for over a year's duration. The actual length of time is in
dispute. Petitioner pled guilty to eight counts of the Indictment,
but the remaining 21 counts were dismissed. Thus, the indictment
language "[f]rom on or about August 1986 to on or about 1990. . .
." (I.G. Ex. 1 at 4) must be examined more closely. The amount of
restitution that Petitioner agreed to pay (I.G. Ex. 3 at 6)
suggests that Petitioner's criminal conduct extended beyond the
eight counts to which he pled guilty, but no specific dates are
established except by the eight counts to which he pled guilty.
Thus, the admissions accompanying Petitioner's guilty plea
establish criminal conduct by Petitioner which extended from
December 1987 through April 1990 (I.G. Ex. 3 at 15 - 17), a period
of more than two years.
Regarding the fourth aggravating factor, the I.G. has proved that
Petitioner was sentenced to a 15-month term of incarceration. I.G.
Ex. 4 at 2. Petitioner admits that he spent 13 months in prison.
P. Br. at 10, 34.
Regarding the fifth aggravating factor, the I.G. has proved that
Petitioner has both a prior criminal and administrative sanction
record. I.G. Exs. 5 - 18. Petitioner pled guilty to felony drug
distribution charges in November 1990 (distribution of cocaine).
I.G. Exs. 6, 7. Following his plea, Petitioner was sentenced to
two years probation, fined $17,320, ordered to perform 200 hours of
community service, and ordered to participate in any drug abuse
treatment program his probation officer deemed necessary. I.G. Ex.
7.
Based on this drug distribution conviction, on March 17, 1992, the
I.G. imposed and directed a four-year exclusion against Petitioner
under the authority of section 1128(b)(3) of the Act. I.G. Ex. 8.
Also based on Petitioner's guilty plea to the drug distribution
charge, the Pennsylvania State Board of Osteopathic Medicine (State
Board) suspended Petitioner's medical license in December 1990.
I.G. Ex. 15.
On May 12, 1993, the State Board suspended Petitioner's medical
license indefinitely. The State Board restricted Petitioner
further by not permitting him to seek termination of his suspension
for five years. I.G. Ex. 18. On July 2, 1993, the State Board
ordered Petitioner to show cause why the State Board should not
impose further sanctions against Petitioner, based on the criminal
offenses underlying Petitioner's 15-year exclusion here. I.G. Ex.
18.
Regarding the sixth aggravating factor, the I.G. has proved that
Petitioner was overpaid more than $1500. I.G. Exs. 3, 4 at 4; P.
Br. at 33 - 34.
In her reply brief, the I.G. requested that I consider Petitioner's
recent Medicaid fraud convictions as an aggravating factor in this
case. I.G. Exs. 19, 20. The I.G. suggested also that I consider
increasing Petitioner's exclusion based on these additional
program-related convictions. I.G. R. Br. at 1. These Medicaid
fraud convictions would impact somewhat the first, second, and
sixth aggravating factors. They would not impact the fourth
aggravating factor and, because they do not constitute a prior
criminal record, they would not impact the fifth aggravating
factor. I have decided not to consider Petitioner's recent
Medicaid fraud convictions here. These convictions constitute an
independent basis upon which the I.G. may exclude Petitioner.
4. Absence of Mitigating Factors
The regulations provide that, if aggravating factors are present
and justify an exclusion of more than five years, then mitigating
factors may be considered as a basis for reducing the exclusion to
a period of not less than five years. 42 C.F.R. 1001.102(c).
The regulations provide that only the following three factors may
be considered as mitigating:
1. The individual or entity was convicted of 3 orfewer
misdemeanor offenses, and the entire
amount of financial loss to Medicare and State
health care programs due to the acts that resulted
in the conviction, and similar acts, is less than
$1500;
2. The record in the criminal proceedings,including
sentencing documents, demonstrates
that the court determined that the individual had
a mental, emotional, or physical condition before
or during the commission of the offense that
reduced the individual's culpability; or
3. The individual's or entity's cooperation with
federal or State officials resulted in -
(i) Others being convicted or excluded from
Medicare or any of the State health care
programs, or
(ii) The imposition against anyone of a civil
monetary penalty or assessment under part 1003
of this chapter.
42 C.F.R. 1001.102(c)(1) - (3).
It is Petitioner's burden to prove that mitigating factors exist.
Abassi, DAB CR390, at 7. Petitioner has not introduced evidence to
prove any of the mitigating factors allowed by the regulations.
With regard to the first mitigating factor, Petitioner's conviction
was for a felony and the amount of loss to Medicare was well in
excess of $1500. I.G. Exs. 1 - 4.
Regarding the second mitigating factor, while Petitioner asserts
that his drug dependency affected all his actions during the time
in which he committed his criminal offenses, the record of the
criminal proceedings upon which his 15-year exclusion is based (his
program-related crimes), including his sentencing documents,
demonstrates that the court did not determine that his mental,
emotional, or physical condition before or during the time that he
committed his offenses reduced his culpability. I.G. Exs. 1 - 4.
Finally, while Petitioner asserted that he cooperated with
government officials in drug investigations, there is no evidence
that Petitioner's cooperation with government officials resulted in
the conviction, exclusion, or imposition of a civil money penalty
against anyone with regard to the criminal proceedings upon which
his 15-year exclusion is based (his program-related crimes).
5. Reasonableness of the Exclusion
Petitioner's arguments are eloquent and demonstrate an
understanding of the law. Nevertheless, upon careful consideration
of the evidence as a whole, I am convinced that Petitioner's
15-year exclusion is reasonable. The five aggravating factors
proved by the I.G. convince me that Petitioner is a manifestly
untrustworthy individual and that the 15 year period of exclusion
imposed against Petitioner is necessary to protect Medicare and
Medicaid and the programs' beneficiaries and recipients. Below, I
discuss these factors in terms of the weight I have assigned to
each factor and the reasonableness of Petitioner's exclusion.
a. Weight of Aggravating Factors
i. Petitioner's prior conviction and
administrative sanction record
Petitioner argues that the criminal offenses which led to his
felony drug distribution conviction occurred during the same time
period as the criminal offenses which led to his program-related
convictions. In an attempt to mitigate the severity of his
offenses, Petitioner distinguishes between the repeat offenses of
an individual who has been held accountable and thereafter commits
additional crimes, and his own convictions.
It is true that Petitioner's criminal convictions all stem from
criminal offenses committed prior to his first sentencing.
Petitioner's felony drug dealing occurred "from on or about
December 1985 to on or about January 1990" (I.G. Ex. 5). He was
sentenced in March 1991 (I.G. Ex. 7), and he was notified of his
exclusion in March 1992 (I.G. Ex. 8). So far as we know, the only
offenses Petitioner has committed since his first sentencing
involve his continuing drug use in 1992. 5/ Petitioner's
program-related crimes occurred in December 1987 (Count I, I.G. Ex.
1) and October 1988 (Count XV, I.G. Ex. 1), prior to his first
sentencing. 6/
I agree with Petitioner that his prior record is not as egregious
as if he had committed his program-related crimes after having once
been brought to justice. Nevertheless, Petitioner's prior record
is, in my opinion, the most weighty aggravating factor in his case.
42 C.F.R. 1001.102(b)(5).
I do not agree with Petitioner's characterization of his felony
drug dealing and his program-related crimes as "a single set of
facts." P. Br. at 2. Even though these crimes occurred during
roughly the same time period, they reflect entirely different
criminal activity and give rise to additional reasons for concern
regarding Petitioner's trustworthiness to participate in the
programs.
Furthermore, in suspending Petitioner's license to practice for at
least five years, beginning May 1993 (I.G. Ex. 17 at 15), the State
Board included in its Conclusions of Law the following:
2. Respondent is unable to practice osteopathic medicine and
surgery with reasonable skill and safety to patient by reason of
drunkenness and excessive use of drugs in violation of Section
15(a)(5) of the Act. (Findings of Fact Nos. 6-28).
I.G. Ex. 17 at 10.
Petitioner admits "active addiction" to both alcohol and cocaine
(P. Br. at 4) during the period of his criminal activity (from the
late 1980s into 1990). Furthermore, his drug dealing conviction
for distribution of cocaine goes beyond addiction. Petitioner's
drug dealing conviction demonstrates clearly his disregard for the
law, his disregard for the health and safety of others, as well as
of himself, and his poor judgment.
Petitioner's cocaine distribution conviction and the attendant
circumstances, including Petitioner's positive urine specimens for
cocaine after sentencing (I.G. Exs. 9 - 13), and including the
State Board's conclusion that Petitioner is unable to practice
medicine and surgery with reasonable skill and safety to his
patients, is entitled to great weight. Thus, Petitioner's prior
conviction and sanction record demonstrates that a very lengthy
exclusion is necessary for the I.G. to be able to determine whether
Petitioner is again trustworthy to provide program services.
ii. Financial loss to Medicare
The next most weighty aggravating factor in Petitioner's case is
the $34,593 financial loss to the Medicare program (42 C.F.R.
1001.102(b)(1)), which is admitted by Petitioner. I categorize
this together with the aggravating factor of overpayment to
Petitioner in the same amount (42 C.F.R. 1001.102(b)(6)). The
large financial loss to Medicare, and the illegal gain to
Petitioner, again demonstrate the seriousness of Petitioner's
offenses and support a very lengthy period of exclusion.
Petitioner pled guilty to defrauding Medicare by billing for
services that he did not perform. Petitioner's admission of guilt
in open court in the presence of his attorney (I.G. Ex. 3) is more
persuasive than his detailed explanation of his reasons for
choosing the code for removal of a foreign body from the ear and
the code for performance of a hepatitis panel (P. Br. at 20 - 22)
in place of using codes for less expensive services he may have
performed. Petitioner's explanation that he decided to plead
guilty because his prior conviction prevented him from being
regarded as credible, and because he could not afford to defend
himself, is not persuasive.
Petitioner distinguishes his wrongdoing from that of providers who
submit fraudulent claims without providing any treatment,
explaining: "[w]hat I did do, was engage in aggressive billing
practices. . . ." P. Br. at 6. While Petitioner may wish to
characterize his criminal conduct as "aggressive billing
practices," he nevertheless committed fraud or theft. As stated by
an appellate panel of the Departmental Appeals Board in the case of
Timothy L. Stern, M.D., DAB 1396, at 17 (1993):
[p]resenting an "inflated" claim can be potentially just as
damaging to the Medicare program as presenting a claim where no
reimbursable service was provided at all. Both instances equally
involve program deception and both instances place program funds at
risk.
iii. Other aggravating factors
The remaining aggravating factors, i.e., Petitioner's crimes being
committed over longer than a one-year period (42 C.F.R.
1001.102(b)(2)), and Petitioner's sentence including incarceration
(42 C.F.R. 1001.102(b)(4)), are additional indicators of the
extent of Petitioner's
untrustworthiness and support a lengthy period of exclusion.
b. Consistency with other exclusions
In determining the reasonableness of a period of exclusion, I
consider the period of exclusion imposed by the I.G. in other cases
and whether that period of exclusion was upheld by administrative
law judges and appellate panels of the DAB. However, each case
must be decided on the totality of its own circumstances, and there
are so many variables in each case that comparison is difficult.
Petitioner asserts that in comparison to other exclusions, his is
unreasonable. Petitioner argues that the term of his exclusion
should be consistent with the exclusions "imposed on other
practitioners who have been involved in like violations." P. R.
Br. at 8; see also P. Br. at 35 - 36.
For example, Petitioner distinguishes his case from that of the
petitioner in Khalil, DAB CR353. P. Br. at 35. Dr. Khalil's
program-related convictions involved:
fraudulent claims [which] resulted in a financial loss of
almost $2 million. Khalil, DAB CR353 at 11 - 12.
[Dr. Khalil] was almost never present at the clinics and, but
for one or two instances, never personally examined or treated
Medicaid recipients. Khalil, DAB CR353 at 15.
[Dr. Khalil] knew that the physician assistants were seeing
patients on her behalf without supervision, and that they were
generating reimbursement claims for services which she had not
provided and which were not medically necessary. Khalil, DAB
CR353, at 16.
While I agree with Petitioner that his program-related crimes are
less egregious than those of Dr. Khalil, Petitioner's cocaine
distribution conviction and the attendant circumstances
nevertheless add a dimension to Petitioner's case that is not
present in Dr. Khalil's case. Based on the totality of the
aggravating factors in Petitioner's case, I am persuaded that a
15-year exclusion is warranted and reasonable. 7/
Recently, an administrative law judge modified a 15-year exclusion
from Medicare and Medicaid down to eight years. Two aggravating
factors and no mitigating factors were proved:
First, the I.G. proved that [Abassi] engaged in crimes
resulting in financial loss to the New York Medicaid program in
excess of $1500.00. 42 C.F.R. 1001.102(b)(1). . . .[Abassi]
committed fraud against the New York Medicaid program in the amount
of $75,000 . . .
Second, [Abassi] was sentenced to incarceration. 42 C.F.R.
1002.102(b)(4). . . . [Abassi] was sentenced to a term of one
year in prison . . .
Abassi, DAB CR390, at 6.
In Abassi, the judge noted that the record was practically silent
as to the nature of Petitioner's involvement in the crimes for
which he was convicted. However, the aggravating factors present
in Petitioner's case add a dimension not present in Dr. Abassi's
case, including, but not limited to, Petitioner's cocaine
distribution conviction and the circumstances attendant to that
conviction.
Petitioner has demonstrated by his conduct that he cannot be
trusted to handle program funds or to treat patients. Even if
Petitioner does not consider himself as culpable as some others who
have been excluded for 15 years, this does not mean that the
15-year exclusion imposed against him is unreasonable. The
aggravating factors proved in Petitioner's case suggest that
Petitioner is a manifestly untrustworthy individual and that a very
lengthy period of exclusion is necessary to protect the integrity
of federally financed health care programs and the welfare of the
programs' beneficiaries and recipients. See Abassi, DAB CR390, at
9.
V. Conclusion
The I.G.'s determination to exclude Petitioner for 15 years from
participation in Medicare, and to direct that he be excluded from
participation in Medicaid, comports with the remedial purposes of
the Act and, thus, is reasonable.
Jill S. Clifton
Administrative Law Judge
1. Unless otherwise indicated, hereafter I refer to all
programs from which Petitioner has been excluded, other than
Medicare, as "Medicaid."
2. Those parts of the Act discussed herein are codified in 42
U.S.C. 1320a-7.
3. The I.G. filed a Motion for Disposition on the Documentary
Record with a supporting brief (I.G. Br.), and a statement
enumerating the material facts and conclusions of law the I.G.
considered to be uncontested. The I.G.'s submissions were
accompanied by I.G. Exhibits (I.G. Exs.) 1 through 18.
Petitioner filed Petitioner's Answer and Petitioner's Statement
with Brief in support (P. Br.), accompanied by Petitioner's
Exhibits (P. Exs.) 1 through 20.
The I.G. filed a Reply brief (I.G. R. Br.), accompanied by I.G.
Exs. 19 and 20.
Petitioner filed a Response (P. R. Br.).
Petitioner did not object to any of the I.G.'s exhibits. Therefore,
I admit I.G. Exs. 1 through 20 into evidence.
The I.G. objected to P. Exs. 1 through 9, 12, 14, and 15, asserting
that Petitioner submitted them for the purpose of collaterally
attacking his convictions. The I.G. objected also to P. Ex. 16 as
incomplete. I.G. R. Br. at 7. In his Response, Petitioner
explained that he was merely providing a full explanation of the
circumstances surrounding his convictions and was not collaterally
attacking them. Petitioner explained further that he provided P.
Ex. 16 to emphasize the counts of which he was convicted, as
distinguished from the counts that were dismissed. P. R. Br. at 6
- 7. I admit into evidence P. Exs. 10, 11, 13, and 17 - 20. I am
not admitting P. Ex. 16 into evidence because it is included within
I.G. Ex. 1 and is duplicative. Recognizing that Petitioner may not
collaterally attack his conviction, to allow Petitioner to fully
explain his convictions, I admit P. Exs. 1 through 9, 12, 14, and
15 into evidence over the I.G.'s objections.
4. To protect the privacy of Petitioner's patients, I refer to
them by their initials only.
5. During probation, Petitioner's urine specimens were
positive for cocaine (I.G. Exs. 9 - 13).
6. As indicated, I do not evaluate the impact of Petitioner's
recent Medicaid fraud convictions (I.G. Ex. 20) on his period of
exclusion. I note, however, that the criminal offenses of which he
was convicted took place "on or about February 26, 1988 through
August 31, 1990" (I.G. Ex. 19), again, prior to his first
sentencing.
7. A 15-year exclusion also was upheld recently in the case of
Shahid M. Siddiqui, M.D., DAB CR377 (1995). Dr. Siddiqui was
excluded from Medicare and Medicaid for 15 years, based on the
presence in his case of four aggravating factors and no mitigating
factors. The aggravating factors were those specified at 42 C.F.R.
1001.102(b)(1), 1001.102(b)(2), 1001.102(b)(4), and
1001.102(b)(5).