Sharad Patel, M.D., DAB CR447 (1996)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division


In the Case of:

Sharad Patel, M.D.,

Petitioner,

- v. -

The Inspector General.

DATE: November 26, 1996
Docket No. C-96-085
Decision No. CR447


DECISION

In this case, I uphold the determination made by the Inspector
General (I.G.) to exclude Petitioner from participating in the
Medicare and Medicaid programs 1/ for a period of 10 years.

After Petitioner pled guilty in U.S. District Court to charges of
Medicare billing fraud and related crimes, the I.G. notified
Petitioner by letter dated November 27, 1995 (Notice Letter) that
Petitioner was being excluded for a period of 10 years pursuant
to sections 1128(a)(1) and (c)(3)(B) of the Social Security Act
(Act) and the implementing regulations codified at 42 C.F.R. §
1001.102. Petitioner agrees that he is subject to an exclusion
of five years mandated by sections 1128(a)(1) and (c)(3)(B) of
the Act. Petitioner agrees also that three of the aggravating
factors enumerated in 42 C.F.R. 1001.102(b) are applicable to his
circumstances. However, he asserts that a mitigating factor
listed in 42 C.F.R. § 1001.102(c) is applicable as well, and,
therefore, the 10 year exclusion imposed and directed by the I.G.
is unreasonably long.

An in-person hearing was scheduled and then cancelled by me after
I reviewed the parties' proposed exhibits and the summary of
testimony Petitioner intended to present. 2/ My reasons for
vacating the hearing schedule are contained in my Summary of
Prehearing Conference and Order Scheduling Case for Briefing,
dated May 30, 1996 (May 30, 1996 Order). Based on the parties'
stipulations of facts and agreement to submit the case for
disposition on a written record, I established a briefing
schedule for the parties to follow. Id. However, I informed the
parties also that if Petitioner's written submissions establish
the applicability of the mitigating factor he alleges, then I
would conduct a hearing to take testimony from the two witnesses
identified in Petitioner's witness list as having information
relevant to that factor. Id.

Pursuant to my May 30, 1996 Order, each party has submitted a
brief in chief (I.G. Br. 3/ and P. Br., respectively). The
I.G. submitted also a reply brief (I.G. Reply). Petitioner then
moved to file a sur-reply brief (P. Sur-reply) attached to his
motion,


which I am granting at this time. In addition, I have received
and admitted the following exhibits submitted by the parties:

the I.G.'s exhibits 1 through 5 (I.G.
Exs. 1 - 5); and

Petitioner's exhibits 1 through 5 (P.
Exs. 1 - 5).

I have excluded the eight additional exhibits offered by
Petitioner (P. Exs. 6 - 13) due to their irrelevancy.

Having considered the briefs and documentary evidence submitted
by the parties, I conclude that there is no need to reschedule an
in-person hearing because, for the reasons detailed below,
Petitioner has not established the applicability of the
mitigating factor he alleges. The evidence of record establishes
the reasonableness of the 10-year exclusion imposed and directed
by the I.G. against Petitioner.


STIPULATIONS

As noted in my May 30, 1996 Order, the parties have stipulated as
follows:

A. that Petitioner is subject to a
mandatory exclusion of five years under
sections 1128(a)(1) and (c)(3)(B) of the
Act;

B. that there is no dispute under the facts of this
case concerning the existence of the following three
aggravating factors relied upon by the I.G. in
setting the exclusion period in controversy:

1. the acts that resulted
in Petitioner's conviction,
or similar acts, resulted
in financial loss to the
Medicare and Medicaid
programs of $1,500 or more
(see 42 C.F.R. §
1001.102(b)(1); Notice
Letter);

2. the criminal acts that
resulted in Petitioner's
conviction, or similar
acts, were committed over a
period of one year or more
(see 42 C.F.R. §
1001.102(b)(2); Notice
Letter); and

3. the sentence imposed by
the court included
incarceration (see 42
C.F.R. § 1001.102(b)(4);
Notice Letter).

C. that notwithstanding the information
to the contrary contained in the Notice
Letter, the I.G. does not allege 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 or other individuals (see
42 C.F.R. § 1001.102(b)(3); Notice
Letter).


ISSUE

Given the stipulations of the parties, the only issue before me
is whether the additional five years of exclusion imposed and
directed by the I.G. is reasonable. 42 C.F.R. §
1001.2007(a)(1)(ii). The resolution of this issue requires me to
decide the following in sequence:

A. to what extent, if any, the evidence
relevant to the above-mentioned three
aggravating factors justifies an
exclusion longer than five years (see 57
Fed. Reg. 3314; 42 C.F.R. § 1001.102(c));

B. if an exclusion longer than five
years is justified by the evidence
relevant to the aggravating factors, then
whether, as alleged by Petitioner, there
exists a mitigating factor, in that the
record from Petitioner's criminal
proceedings demonstrates that the court
determined Petitioner to have had a
mental, emotional, or physical condition
before or during his commission of the
offenses and thereby reduced his
culpability (see 42 C.F.R. §
1001.102(c)(2)); and

C. if Petitioner establishes the
existence of the mitigating factor, then
to what extent, if any, the evidence
relevant to the mitigating factor
justifies reducing the lengthened
exclusion period to a period of not less
than five years (42 C.F.R. §
1001.102(c)).


FINDINGS AND CONCLUSIONS ON DISPUTED ISSUE

1. The evidence relevant to the three aggravating factors relied
upon by the I.G. justified the I.G.'s increasing Petitioner's
exclusion to 10 years. See discussion and citations in sections
A and B of Analysis.

2. Petitioner has not proven the existence of the mitigating
factor he relies upon. See discussion and citations in section C
of Analysis.

3. The 10-year exclusion imposed and directed by the I.G.
against Petitioner is reasonable. Findings 1 and 2.


ANALYSIS

A. Evidence relevant to the three aggravating factors

Prior to the imposition of the exclusion in controversy,
Petitioner was a psychiatrist entitled to bill for health care
services rendered to patients insured or covered by the Medicare
program, the State of Kentucky's Medicaid program, and the Civil
Health and Medical Program of the Uniformed Services (CHAMPUS).
I.G. Ex. 2 at 3; I.G. Ex. 3 at 2. As a participating provider in
these programs, Petitioner was obligated to submit bills only for
services that were medically necessary and that were actually
performed. I.G. Ex. 3 at 2. During August of 1992, an
Indictment issued by the Grand Jury was filed in U.S. District
Court for the Western District of Kentucky, charging Petitioner
with 55 counts of criminal wrong-doings relating to the
submission of false, fictitious, and fraudulent claims by
Petitioner and others to the Medicare, Medicaid, and CHAMPUS
programs from about October 1, 1989 to December 31, 1990. I.G.
Ex. 2.

The Indictment issued by the Grand Jury charged Petitioner with
conspiring with others to commit various fraud-related offenses
against the United States. I.G. Ex. 2 at 1 - 2. Many of the
counts charged Petitioner also with submitting, attempting to
submit, or causing to be submitted to the Medicare, Medicaid and
CHAMPUS programs, multiple claims for physician services, even
though the services were not rendered by any person licensed as a
physician ("noncredentialed" services). I.G. Ex. 2 at 5, 9 - 10.
Other counts charged him with having submitted, or caused to be
submitted, claims for services which were different in amounts or
types than those actually rendered ("upcoding"). See I.G. Ex. 2
at 5. Still other charges involved the submission of claims for
"unrendered" physician services. Id. The Indictment charged
Petitioner with having violated numerous federal statutes: i.e.,
18 U.S.C. § 371 ("Conspiracy to File False Medical Claims and to
Commit Maid Fraud"); 18 U.S.C. § 287 and § 2 ("Making False
Medical Claims to Medicare and CHAMPUS. Aiding and Abetting"),
18 U.S.C. § 1341 and § 2 ("Mail Fraud. Aiding and Abetting"); 42
U.S.C. § 1320(a)-7b(a)(1)&(5) and 18 U.S.C. § 2 ("Making False
Medical Claims to State Programs for Payment. Aiding and
Abetting"); and 42 U.S.C. § 1320a-7b(a)(5) and 18 U.S.C. § 2
("Making False Medical Claims to Federal programs for Payment.
Aiding and Abetting."). I.G. Ex. 2; I.G. Ex. 4 at 2.

In December of 1993, Petitioner voluntarily entered a plea of
guilty to all 55 counts in the Indictment, specifically
acknowledging that "he is in fact guilty of the charges." I.G.
Ex. 3 at 1. He acknowledged specifically also that he had
knowingly conspired and engaged in a pattern and practice of
submitting and causing others to submit false and fraudulent
claims to the Medicare, Medicaid, and CHAMPUS programs. Id. at
2. The Plea Agreement contains also Petitioner's admission that
he committed the criminal offenses between at least October 1,
1989 and December 31, 1991. Id. at 2 - 3.

Thereafter, U.S. District Judge Charles Simpson accepted
Petitioner's guilty plea to the 55 counts and entered judgment
against him. I.G. Ex. 4. The sentence imposed by Judge Simpson
included four months of incarceration in a federal prison for
each count, to be served concurrently; four months of home
incarceration for each count, to be served concurrently; and an
additional three-year period of supervised release for each
count, also to be served concurrently. I.G. Ex. 4 at 3 and 4; P.
Br. at 2. 4/ Even though Petitioner was subject to fines in an
amount between $2,000 to $20,000, Judge Simpson waived the
payment of such fines due to Petitioner's inability to pay it.
I.G. Ex. 4 at 5. In addition, Judge Simpson ordered no payment
of restitution by Petitioner because restitution was being
satisfied pursuant to a settlement agreement reached in a related
civil action. Id.; I.G. Ex. 5; P. Ex. 5 at 12.

In a civil action, the United States, on behalf of the various
agencies which administered the health care programs defrauded by
Petitioner, had sued Petitioner under the False Claims Act, 42
U.S.C. § 3729, for the submission of false claims to the
Medicare, Medicaid, and CHAMPUS programs from January 1, 1988
until December 31, 1991. I.G. Ex. 5; P. Ex. 4. The matter was
described as a "parallel civil proceeding" by the Asst. U.S.
Attorney during Petitioner's sentencing proceedings in the
criminal case. P. Ex. 5 at 5. In settlement of the civil fraud
charges against him, Petitioner agreed to pay the United States
$200,000, in addition to any amount he is required to pay in the
criminal action. I.G. Ex. 5. The United States did not seek any
additional amount in restitution because the U.S. Attorney's
Office was persuaded, after reviewing Petitioner's financial
statements, that he could not be reasonably expected to pay more.
P. Ex. 4 at 3.

B. The relationship between the evidence relevant to the three
aggravating factors and the I.G.'s authority to increase the
period of exclusion

The regulation at 42 C.F.R. § 1001.102 permits the I.G. to
lengthen the five-year exclusion required by sections 1128(a)(1)
and (c)(3)(B) of the Act only if certain aggravating factors
exist. Where both aggravating and mitigating factors enumerated
by the regulations exist, increasing the minimum mandatory
exclusion period is appropriate only when the weight of the
evidence relevant to the aggravating factors is not offset
completely by the evidence relevant to any mitigating factor also
in existence. As explained in the agency's commentaries to these
regulations, there is no rigid formula establishing the weight to
be accorded to each aggravating factor. 57 Fed. Reg. 3314 - 15.
Instead, the weight to be assigned these factors depends on the
context of the particular case at issue. Id. As also explained
in these commentaries, "[t]he primary purpose of an exclusionary
sanction is remedial, not punitive." 57 Fed. Reg. 3300. Any
exclusion imposed by the I.G. under section 1128 of the Act
should carry out Congress' intent to protect the integrity of the
Medicare and Medicaid programs and those covered by the programs.
See, 57 Fed. Reg. 3300 - 01. Therefore, the weight to be
assigned the aggravating factors present in a case depends on the
relevant facts as they relate to the remedial purpose of an
exclusion.

As relevant to the aggravating factor listed at 42 C.F.R. §
1001.102(b)(1), the facts relating to Petitioner's settlement of
the civil fraud charges for $200,000 establish that the acts
which resulted in Petitioner's criminal conviction, or similar
acts, have caused great financial losses to the Medicare and
Medicaid programs. Whereas the threshold amount of loss
specified by the regulation is $1,500, Petitioner has caused much
more extensive financial damage to the Medicare and Medicaid
programs. Neither party before me has alleged any precise
amounts or argued the exact extent of financial damage caused by
Petitioner to the two programs. However, according to the
calculations used by the U. S. Attorney's Office, Petitioner's
criminal acts during the period specified in the Indictment
(October 1, 1989 to December 31, 1990) defrauded the Medicaid
program of $20,880, and the Medicare program of $20,007.72. P.
Ex. 4 at 3. 5/ In the Plea Agreement, Petitioner and the
Government stipulated that the aggregate loss to all programs for
federal sentencing guidelines purposes was an amount greater than
$40,000 but less than $70,000. I.G. Ex. 3 at 3.

In addition, for the longer period of violations alleged in the
civil suit brought under the False Claims Act, the same U.S.
Attorney's Office calculated the loss to the Medicare program to
be $20,007.20, and $66,844.85 to the Medicaid program. 6/ No
restitution amount was decided or ordered in the criminal case
only because the court found it unnecessary to address a matter
already disposed of in the civil action. As noted above also,
the U.S. Attorney's office agreed to Petitioner's offer to pay
$200,000 in the civil action because Petitioner was not able to
pay more.

Therefore, even though the evidence of record does not permit me
to determine what precise amount, below the $200,000 settlement
amount, constituted the full extent of financial damages caused
by Petitioner to the Medicare and Medicaid programs for the
periods involved in both the criminal and civil actions, it is
clear that such damages are substantially in excess of the $1,500
minimum specified by 42 C.F.R. § 1001.102(b)(1). Based on the
acts which resulted in Petitioner's conviction and similar acts,
the amount of damages Petitioner caused to the Medicare and
Medicaid programs amounted to at least the approximately $87,000
the U.S. Attorney's Office calculated for the period from October
1988 to December 31, 1990.

With respect to the aggravating factor codified at 42 C.F.R. §
1001.102(b)(2), the relevant evidence shows that Petitioner's
criminal acts that resulted in his conviction, and similar acts,
took place numerous times during a period in excess of the
minimum one-year period specified by said regulation. He was
charged with 55 counts of criminal violations, which took place
during the one year and three month period from October 1, 1989
to December 31, 1990. I.G. Ex. 2. In his Plea Agreement,
Petitioner admitted to having committed all his criminal offenses
for a period which lasted two years and three months (from at
least October 1, 1989 to December 31, 1991), which is one year
longer than the period alleged in the Indictment. I.G. Ex. 3 at
2 - 3.

The relevant evidence establishes also that, for a period longer
than one year, Petitioner violated multiple federal statutes in
perpetration of criminal conspiracy and numerous overt criminal
activities. He specifically admitted in the Plea Agreement that,
for at least two years and three months between October 1, 1989
and December 31, 1991, he had engaged in a pattern of crimes
involving the submission of false or inflated billings for
services allegedly rendered to patients. As noted above also,
the United States sued him under the False Claims Act for the
submission of false and fraudulent claims to the Medicare,
Medicaid, and CHAMPUS programs for a period of nearly four years,
from January 1, 1988 to December 31, 1991. The evidence of
record concerning the civil case shows that the U.S. Attorney's
Office had evidence that, even for the lesser period of October
1, 1988 to December 31, 1990, Petitioner had submitted
approximately 870 false claims to the Medicaid program and
approximately 400 false claims to the Medicare program. P. Ex. 4
at 2.

In sum, the evidence relevant to the aggravating factor codified
at 42 C.F.R. § 1001.102(b)(2) shows that, over a period of time
longer than what is specified by said regulation, Petitioner had
engaged repeatedly in various carefully planned schemes to
defraud the Medicare, Medicaid, and CHAMPUS programs. In the
criminal proceedings, he admitted to having committed his
offenses for a period of at least two years and three months. In
settlement of the civil claims against him, Petitioner did not
contest the Government's allegation that he defrauded the
programs for a period of four years.

With respect to the evidence relevant to the aggravating factor
codified at 42 C.F.R. § 1001.102(b)(4), I have noted above that
the sentence imposed by the court included four months of
imprisonment and four months of home incarceration for each of
the 55 criminal counts, to be served concurrently. This split
sentence of incarceration was imposed in addition to the three
years of supervised release imposed for each of the 55 counts
(also to be served concurrently), as well as the $2,700 in
special assessment Petitioner was required to pay (I.G. Ex. 4 at
1), and the $200,000 Petitioner had agreed to pay in settlement
of the Government's parallel civil suit. Therefore, the sentence
of incarceration imposed by the court is an indication that the
crimes committed by Petitioner were very serious indeed.

The evidence relevant to all three aggravating factors discussed
above establishes a prima facie case for the I.G.'s increasing
Petitioner's exclusion under section 1128(a)(1) of the Act by
adding five years to the minimum period required by section
1128(c)(3)(b) of the Act. The relevant evidence shows that the
fiscal integrity of the Medicare and Medicaid programs need very
considerable protection from Petitioner. Petitioner had
intentionally bilked the Medicare and Medicaid programs of very
substantial sums of money by committing very serious criminal
offenses and civil violations on hundreds of occasions during a
protracted period of time. While a 10-year exclusion may not be
the only period of exclusion that is reasonable under the facts
of this case, a 10-year exclusion is within the continuum of all
that may constitute a reasonable period of exclusion.

Moreover, the I.G. has cited three Departmental Appeals Board
decisions wherein an administrative law judge upheld the I.G.'s
impositions of 10-year exclusions pursuant to section 1128(a)(1)
of the Act. I.G. Br. at 6 (citing Hill v. I.G., DAB CR347
(1994); Middleton v. I.G., DAB CR297 (1993); Weiss v. I.G., DAB
CR421 (1996)). Those cases were decided on facts very similar to
those before me. Therefore, based on the evidence relevant to
the aggravating factors before me and the regulations permitting
the I.G. to increase the minimum five-year period of exclusion on
the basis of those factors (42 C.F.R. § 1001.102(b)), I conclude
that the I.G. has proven that five additional years constitute a
reasonable increase for Petitioner's exclusion period.

C. The potential effect of a mitigating factor and Petitioner's
evidence concerning the alleged existence of a mitigating factor

Because the I.G. has properly increased the statutorily mandated
exclusion period in accordance with 42 C.F.R. § 1001.102(b),
Petitioner is entitled to prove as an affirmative defense that
the increased exclusion period is unreasonable due to the
presence of a mitigating factor also specified by regulation. 42
C.F.R. § 1001.102(c). In this case, Petitioner has endeavored to
prove that "[t]he 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 offence that reduced the
individual's culpability." 42 C.F.R. § 1001.102(c)(2).
Petitioner's arguments concerning the applicability of this
mitigating factor are built upon the following two statements
appearing in the sentencing documents he submitted as evidence:

[by U.S. District Judge Simpson:] I have
reviewed the presentence report in this
case and have determined to accept the
plea agreement and sentence in accordance
with it.

P. Ex. 5 at 5.

[by the U.S. Probation Officer in his
presentencing report:] The defendant has
indicated some inpatient and outpatient
treatment as well as ongoing counseling;
however, this information appears to best
be addressed in the substance abuse
section of the report as it appears that
the majority of the problems have arisen
due to the defendant's use of alcohol.

P. Ex. 1 at 13. Based on these two statements, Petitioner argues
that Judge Simpson adopted the presentencing report in its
entirety (P. Br. at 2); that Judge Simpson therefore concluded,
as did the Probation Officer, that "the majority of the problems
have arisen due to the defendant's use of alcohol" (id. at 5);
that Judge Simpson also discussed during the sentencing hearing
Petitioner's need for treatment of his alcoholism while he is
incarcerated (id. at 6); and therefore, Judge Simpson had made a
determination meeting the requirements of 42 C.F.R. §
1001.102(c)(2) (id.).

I agree with the I.G. that Petitioner failed to prove with the
evidence from his criminal proceedings that the court had made a
determination that Petitioner suffered from any mental,
emotional, or physical condition before or during the commission
of his offenses which reduced his culpability. Unless all these
elements are satisfied, Petitioner cannot avail himself of the
effect of the mitigating factor codified at 42 C.F.R. §
1001.102(c)(2). Here, the evidence before me establishes only
that Judge Simpson reviewed the presentencing report, as he
stated (P. Ex. 5 at 5), and, based on Petitioner's request to
continue his past treatment for substance abuse at the time of
sentencing and the absence of objection from the United States,
Judge Simpson expressed a willingness to order Petitioner's
incarceration at an institution which offered alcohol-abuse
counseling and was located as close as possible to Petitioner's
place of residence. P. Ex. 5 at 4 - 9.

I find that Petitioner has attributed undue significance to Judge
Simpson's statement that he had "reviewed the presentencing
report in this case and have determined to accept the plea
agreement and sentence in accordance with it" (P. Ex. 5 at 5).
First of all, there is no finding by Judge Simpson or by the
Probation Officer who authored the presentencing report
concerning the severity or onset date of Petitioner's alleged
alcoholism or substance abuse problems. Neither determined that
Petitioner had any alcohol or substance abuse problems during the
time he committed those crimes which resulted in his conviction.
Nor does the evidence show that either the judge or the
Probation Officer was in possession of those facts necessary for
making a determination meeting the requirements of 42 C.F.R. §
1001.102(c)(2), even assuming that the judge adopted the
presentencing report in its entirety as argued by Petitioner.

Aside from the fact that the Probation Officer never explained
what he meant by "the problems" which he said were mostly due to
Petitioner's use of alcohol (P. Ex. 1 at 13), 7/ the Probation
Officer's narrative of Petitioner's alleged history of substance
abuse prior to his Indictment was based solely on Petitioner's
own statements. P. Ex. 1 at 14. Virtually every sentence in the
Probation Officer's narrative on the matter makes explicit that
the information is what "the defendant advised" or what "the
defendant indicates." Id. Moreover, nothing in the
presentencing report suggests that Petitioner had ever alleged to
have committed his offenses as a result of his alleged abuse of
alcohol or other substances. Nor does the report suggest that
Petitioner asked for a finding of lesser culpability on the basis
of his alleged substance abuse problems. Nor do Petitioner's
descriptions of his own history of alcohol and substance abuses
indicate the degree of his alleged problems during the time he
committed his criminal offenses. Id.

At the time the presentencing report was prepared in March of
1994, the Probation Officer could not even obtain confirmation of
the history provided by Petitioner from a treatment facility
named by Petitioner. Id. The only treatment notes discussed in
the presentencing report pertained to Petitioner's progress as of
December 2, 1993, after the Indictment against him had been filed
and his trial date had been set. Id. Nothing in these treatment
notes appear to indicate when the alleged disorders began or the
degree, if any, to which Petitioner's alleged disorders have
affected his ability to think and act in accordance with the
dictates of law during any particular period of time. Id. It
simply does not follow that any alleged alcohol or substance
abuse of unproven severity and unproven onset would diminish an
individual's culpability for his criminal conduct.

In addition, Judge Simpson did not say that he was accepting
everything stated in the presentencing report. He said only that
he decided to "accept the plea agreement and sentence in
accordance with" the presentencing report. P. Ex. 5 at 5. The
section of the presentencing report dealing with the plea
agreement and recommended sentence sets out the parties'
stipulations and the requirements of the federal sentencing
guidelines applicable to those stipulations. P. Ex. 5 at 14 -
16. Nothing in said section of the report, or in the Plea
Agreement itself, indicates that a finding had been made by the
Probation Officer or the U.S. Attorney's Office prosecuting the
case that Petitioner suffered from any physical, emotional, or
mental disorder before or during his commission of the crimes
which reduced his culpability.

During the sentencing hearing, Judge Simpson asked Petitioner
whether there were changes, errors, or problems with the
presentencing report. P. Ex. 5 at 4. Even at that time
Petitioner did not allege reduced criminal culpability based on
any disorder. Nor did he allege that he suffered any disorder
before or during the period he committed the offenses. 8/
Instead, Petitioner merely asked the court to order that his
sentence of incarceration be served at a prison where he could
continue to receive alcohol-abuse counseling. P. Ex. 5 at 6 -
11. There was never any allegation or determination made during
the sentencing proceedings concerning an onset date for the
alcoholism to be treated during Petitioner's incarceration.

In sum, the record does not even contain the underlying facts
necessary for Judge Simpson to have reached a determination as to
whether Petitioner suffered from alcoholism or substance abuse
prior to or during his commission of the criminal offenses, much
less whether Petitioner's culpability was reduced by such alleged
abuses. For all of the reasons stated above, I find that Judge
Simpson has not made a determination meeting the requirements of
42 C.F.R. § 1001.102(c)(2) in this case. Because Petitioner has
not proven the mitigating factor he alleges, Petitioner has
failed to rebut the I.G.'s evidence that a 10-year exclusion is
reasonable based on the evidence relevant to three aggravating
factors.


CONCLUSION

Based on the foregoing facts and the reasons explained in my May
30, 1996 Order, I will not schedule any additional proceedings in
this case. I conclude that the 10-year exclusion is reasonable.
Therefore, I uphold the I.G.'s imposition of this exclusion
against Petitioner.


Mimi Hwang Leahy
Administrative Law Judge


* * * Footnotes * * *

1. Unless the context indicates otherwise, I use the
term "Medicaid" as an abbreviation for all the State health care
programs listed in section 1128(h) of the Social Security Act.
2. The I.G. intended to present no witnesses at the
hearing and had requested that I excuse her counsel from
appearing at the hearing.
3. Even though the I.G.'s initial brief is titled
"The Inspector General's Memorandum in Support of Summary
Disposition," I construe the I.G.'s request to be for affirmance
of the 10-year exclusion based on the written record alone. I do
not construe the I.G.'s motion as one for summary judgment, which
is not appropriate for resolving disputed issues of material
facts and which, if denied, would necessitate further on-merits
proceedings such as the receipt of witness testimony at an in-
person hearing.

My construction of the I.G.'s request is based on several
factors. First, in her reply brief, the I.G. asked that the case
be decided based on the documentary evidence and briefs alone.
I.G. Reply at 5. Even when an in-person hearing was scheduled to
take place, the I.G. had exercised her option of waiving the
presentation of witnesses and requested that her counsel be
excused from personally appearing at the hearing. In addition,
the parties' agreement during the last prehearing conference was
that they each submit the case for decision based only on their
briefs and exhibits. May 30, 1996 Order. My briefing order was
to the same effect. Id. The only proviso I made for any
possible future in-person hearing was for the taking of live
testimony from certain of the witnesses appearing on Petitioner's
witness list if Petitioner were able to establish by his written
submissions that the mitigating factor he claims exists. Id. In
her briefs, the I.G. has denied the existence of this alleged
mitigating factor and has asked for affirmance of the 10-year
exclusion based solely on the documentary evidence of record even
though there exist disputed material facts and the regulations do
not specify the weight to be accorded any aggravating or
mitigating factor.

Therefore, notwithstanding the title of the I.G.'s initial brief,
I consider the I.G. to have made a request for me to resolve all
issues of fact before me based solely on the briefs and
documentary evidence of record.
4. As Petitioner noted in his brief, the federal
sentencing guidelines applicable to the plea agreement reached by
the parties required eight to 14 months of imprisonment. What
the court imposed, after accepting Petitioner's guilty plea, is
known as a "split sentence" of imprisonment, with four months
served in a federal prison and four months served as home
incarceration.

The split sentence was agreed to by the parties and ordered by
Judge Simpson, in accordance with the plea agreement. P. Ex. 1
at 18; P. Ex. 5 at 5; P Ex. 2 at 6.
5. However, as discussed below, Petitioner admitted
in his Plea Agreement to having committed the criminal offenses
against these programs for one year longer than the period
alleged in the Indictment. Therefore, the amount of damages
caused by Petitioner to these programs could have been greater
than the amounts calculated by the U.S. Attorney's Office.
6. According to Petitioner's evidence, the civil suit
alleged that Petitioner violated the False Claims Act between
January 1, 1988 and December 31, 1991. P. Ex. 4 at 1. However,
the same evidence from Petitioner shows also that, in deciding
whether to accept Petitioner's settlement offer of $200,000, the
U.S. Attorney's Office used the amount of damages to the Medicare
and Medicaid programs calculated for a partial period alleged in
the complaint (i.e., only from October 1988 until December 31,
1990). P. Ex. 4 at 2.
7. Since the observation was placed under the heading
of "Mental and Emotional Health" under "PART C. OFFENDER
CHARACTERISTICS," the Probation Officer's reference to "the
problems" which mostly arose from Petitioner's use of alcohol
could well mean that Petitioner's mental and emotional health
problems mostly arose from his use of alcohol, and not that his
commission of the crimes mostly arose from his use of alcohol as
implied by Petitioner's arguments.
8. Petitioner's counsel told Judge Simpson that he
had reviewed the presentencing report with Petitioner "in great
detail." He stated further that "[t]here are no changes or
amendments that we could suggest at this time." P. Ex. 5 at 3 -
4.