Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Michael Blake Runyon, D.P.M.,
Petitioner,
- v. -
The Inspector General.
DATE: June 13, 1996
Docket No. C-96-093
Decision No. CR422
DECISION ON REMAND
Background
The procedural history of this case is contained in my prior
decision, DAB CR392 (1995), and in the decision of the
appellate panel of the Departmental Appeals Board (DAB) 1555
(1996), which remanded the case to me for further
proceedings.
In my decision, I determined that Petitioner's conviction for
receiving unlawful remuneration (kickbacks) from Sunmac, a
medical supply business, for referring his podiatric patients
to Sunmac for TENS (transcutaneous electronic nerve
stimulators) units was sufficiently related to the delivery
of an item or service under Medicare to justify exclusion
under section 1128(a)(1) of the Social Security Act (Act).
In his appeal of my decision, Petitioner contended that his
criminal conviction was not related to the delivery of items
or services under Medicare. The appellate panel remanded the
case so that I could clarify whether the remuneration which
the Petitioner was convicted of receiving related to Medicare
patients.
By letter dated January 30, 1996, I gave the parties until
March 6, 1996 to file whatever statements they wished to make
on the remand of this case. The I.G. submitted a
"Supplemental Memorandum in Support of the I.G.'s Motion for
Summary Disposition upon Remand to the Administrative Law
Judge" (supplemental memorandum). Petitioner did not make a
submission or object to the brief and exhibit submitted by
the I.G. 1/
Findings of fact and conclusions of law
1. Adrian Tigmo is a Deputy Attorney General assigned to
the Bureau of Medi-Cal Fraud of the California Attorney
General's Office in Los Angeles, California. I.G. Ex. 20 at
1.
2. The Bureau of Medi-Cal Fraud was created to investigate
and prosecute provider-related offenses involving the
Medicaid (known as Medi-Cal in California) program. I.G. Ex.
20 at 1.
3. Medi-Cal does not prosecute private insurance cases,
unless they are part of a program-related offense on which
Medi-Cal has filed charges. I.G. Ex. 20 at 1.
4. Adrian Tigmo prosecuted the criminal case against
Petitioner and has personal knowledge of the joint
investigation of Petitioner by the Bureau of Medi-Cal Fraud
and the Office of Inspector General. Mr. Tigmo is familiar
with the charges filed against Petitioner and the factors
leading to Petitioner's conviction on February 24, 1994 in
the Municipal Court of Los Angeles County, Van Nuys,
California. I.G. Ex. 20 at 1 - 2.
5. The nature and scope of the investigation against
Petitioner centered on government paid medical services
billed to the Medicare program, along with some Medi-Cal
nexus, i.e., Medicare/Medi-Cal crossover patients. I.G. Ex.
20 at 2.
6. According to Mr. Tigmo, during plea bargain
negotiations, Petitioner was provided with over 45
investigative reports involving the joint Bureau of Medi-Cal
and Office of Inspector General's investigation of Petitioner
and Sunmac, which set forth Petitioner's involvement with
Sunmac in a scheme to defraud the Medicare program. I.G. Ex.
20 at 2.
7. The investigative reports focused on interviews of
Petitioner's patients, all of whom were Medicare
beneficiaries. There were no interviews with privately
insured patients as part of the prosecution against
Petitioner. I.G. Ex. 20 at 2; Finding 6.
8. Petitioner pleaded no contest to receiving unlawful
remuneration for sending business to Sunmac in violation of
California Business and Professions Code Section 650. The
transcript of that no contest plea shows that the only victim
in this case to receive restitution was the government. I.G.
Ex. 20 at 3; I.G. Ex. 17 at 11.
9. The dismissed counts of prescription forgeries (Counts
two through five of the Complaint) involved Petitioner's
Medicare patients and the forgery set forth in Count five of
the Complaint occurred on or about December 20, 1989 and
related to prescriptions for TENS units for a Medicare
beneficiary, J.D. I.G. Ex. 20 at 4; I.G. Exs. 14, 17.
10. Mr. Tigmo stated that Petitioner pled guilty to Count
six which used the date and circumstances of Count five,
which explains the dates of both being identical.
Petitioner, having been advised of the allegations against
him and having been advised and represented by privately
retained counsel, stipulated to a factual basis for the plea
of no contest to count six. I.G. Ex. 20 at 4; I.G. Ex. 17.
11. Mr. Tigmo's declaration explained that the selection of
the date set forth in Count six (December 20, 1989) was an
acquiescence to defense counsel's desire to change the
allegations in Count five (but use the same identified
Medicare beneficiary, J.D., and date of December 20, 1989) to
a mutually agreed upon offense for a no contest plea
involving a violation of the California Business and
Professions Code Section 650. I.G. Ex. 20 at 5; I.G. Ex. 13
at 24 - 26.
12. Mr. Tigmo indicated that "[c]ount 6 was merely a
substitution of Count 5, agreed upon by both parties prior to
coming to court on February 24, 1994." I.G. Ex. 20 at 6.
13. On December 20, 1989, Petitioner completed and signed a
form entitled "Certification of Medical Necessity
Transcutaneous Electrical Nerve Stimulator (Tens)" for his
patient J.D. Petitioner had to also enter his Medicare
number on this form. I.G. Ex. 13 at 24 - 25; see also I.G.
Ex. 13 at 3; I.G. Ex. 2 at 61.
14. On December 20, 1989, Petitioner wrote a prescription
for J.D. for a "Tens unit rental 2 mos Osteoarthritis." I.G.
Ex. 13 at 26.
15. I find that J.D. was a Medicare beneficiary. I.G. Ex.
20; see also I.G. Ex. 13; Findings 6 - 14.
16. Petitioner informed J.D. that there would be no cost to
her for the TENS unit that she was provided, thus waiving co-
payments as a matter of course. I.G. Ex. 20 at 5; I.G. Ex. 2
at 47, 75 - 77.
17. The date of the offense that Petitioner was convicted of
in Count six related to the date of the prescription for a
Sunmac TENS unit for Medicare beneficiary J.D. I.G. Ex. 20
at 5; Findings 13 - 14.
18. The offense of which Petitioner was convicted --
receiving remuneration in exchange for patient referrals --
constitutes a conviction of a criminal offense related to the
delivery of items of services under Medicare within the
meaning of section 1128(a)(1) of the Act and justifies
application of the exclusion provision. Findings 5 - 17.
Discussion
On remand, the I.G. introduced a statement from Adrian Tigmo,
an attorney who had prosecuted Petitioner for fraud. He
noted that Petitioner had initially been charged with five
counts of fraud. He further noted that at least 45 cases
involving Petitioner were investigated and that all involved
false claims against either the Medicare or Medi-Cal programs
-- none involved false claims against private insurers.
I find J.D. to be a Medicare beneficiary based on the
declaration of Mr. Tigmo as well as the evidence of record.
The record reveals that Petitioner completed a form entitled
"Certification of Medical Necessary [CMN] Transcutaneous
Electrical Nerve Stimulator (TENS)" which the treating
physician has to complete in order for a Medicare or Medi-Cal
patient to rent a TENS unit. I.G. Ex. 13 at 2 - 3, 24 - 25;
Runyon, DAB CR392 at 3 - 4. The authorizing prescription and
CMN must be submitted to the fiscal intermediary, along with
a claim form for a TENS rental and subsequent TENS order for
supplies. I.G. Ex. 3. In this case, the evidence of record
shows that Petitioner completed a CMN for J.D. on December
20, 1989. I.G. Ex. 13 at 24 - 25. Right under the place for
the name of the physician are the words "Medicare I.D.#" and
that information was filled in by Petitioner or his office.
Id. Furthermore, on December 20, 1989, Petitioner issued a
prescription to a J.D. that prescribes "Tens unit rental 2
mos osteoarthritis." Id. at 26. I conclude from this that
J.D. was a Medicare beneficiary, and in order to treat her
osteoarthritis, Petitioner prescribed a TENS unit and
completed the necessary paperwork, which included his
Medicare number for reimbursement purposes.
The declaration of Adrian Tigmo explains that the sixth count
against Petitioner filed at the request of his attorney as
part of the plea bargain process in fact exactly matched the
circumstances of J.D., a Medicare beneficiary, who, on or
about the date alleged in the indictment received a Sunmac
TENS unit through Petitioner, and that Petitioner was
compensated by Sunmac with Medicare money very shortly
thereafter. I.G. Ex. 20; I.G. Ex. 13 at 24 - 26. Petitioner
adduced no evidence whatever contradicting this account
offered by the I.G. and I regard it as sufficient to show the
connection between Medicare funds and the criminal charges
brought against this Petitioner.
Conclusion
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that
the Petitioner herein be excluded from the Medicare and
Medicaid programs for a period of at least five years because
of his criminal conviction for accepting unlawful
remuneration. Jack W. Greene, DAB CR19 (1989), aff'd DAB
1075, aff'd sub nom., Green v. Sullivan, 731 F. Supp. 835
(E.D. Tenn. 1990). The five-year exclusion is, therefore,
sustained.
________________________
Joseph K. Riotto
Administrative Law Judge
1. In the I.G.'s supplemental memorandum, the I.G.
includes the declaration of Adrian Tigmo and designates it as
I.G. Ex. 19. However, there is an I.G. Ex. 19 already in the
record. Thus, I designate Adrian Tigmo's declaration as I.G.
Ex. 20. Petitioner has not objected to this exhibit. I
admit I.G. Ex. 20 into evidence.