Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Rafic A. Amro, M.D.,
Petitioner,
- v. -
The Inspector General.
Date: December 13, 1996
Docket No. C-96-314
Decision No. CR449
DECISION
I sustain the 10-year exclusion from participating in Medicare
and State health care programs (including Medicaid) which the
Inspector General (I.G.) imposed against Rafic A. Amro, M.D.
(Petitioner).
I. Background
On June 15, 1996, the I.G. notified Petitioner that he was being
excluded from Medicare and State health care programs, for a
period of 10 years. The I.G. advised Petitioner that he was
being excluded pursuant to section 1128(a)(1) 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 the Pennsylvania Medicaid program. The I.G. advised
Petitioner further that the length of the exclusion, 10 years,
was based on the presence of aggravating factors.
Petitioner requested a hearing, and the case was assigned to me
for a hearing and a decision. I held a prehearing conference, at
which the parties advised me that the case could be heard and
decided based on their written submissions. The I.G. submitted a
brief, along with four proposed exhibits (I.G. Ex. 1 - 4).
Petitioner submitted a brief and no exhibits. Petitioner did not
object to my receiving into evidence the I.G.'s proposed
exhibits. Therefore, I receive into evidence I.G. Ex. 1 - 4. I
base my decision in this case on the law, the exhibits, and on
the parties' arguments.
II. Issue, findings of fact and conclusions of law
A case involving an exclusion of more than five years imposed
pursuant to section 1128(a)(1) of the Act may involve the issues
of whether: (1) the excluded individual has been convicted of a
criminal offense related to the delivery of an item or service
under Medicare or State health care programs, thereby giving the
I.G. authority to exclude that individual pursuant to section
1128(a)(1); and, (2) whether an exclusion of more than five years
is reasonable. Here, Petitioner concedes that he was convicted
of a program-related criminal offense as is described in section
1128(a)(1). Petitioner's brief at 1. Therefore, the only issue
for me to decide is whether the 10-year exclusion that the I.G.
imposed is reasonable.
In deciding that the exclusion is reasonable, I make the
following findings of fact and conclusions of law (Findings),
which I discuss in detail at Part III. of this decision.
1. The Act requires the Secretary, or her delegate, the
I.G., to exclude for at least five years any individual who
is convicted of an offense described in section 1128(a)(1)
of the Act.
2. Regulations provide that an exclusion of more than
five years may be imposed in any case where there exist
factors which the regulations define as aggravating, and
that are not offset by factors which the regulations define
as mitigating.
3. The I.G. proved that there exist two aggravating
factors.
4. Petitioner did not prove that there exist any
mitigating factors.
5. The evidence which is relevant to the aggravating
factors proves that Petitioner is a highly untrustworthy
individual.
6. A 10-year exclusion is reasonable in this case.
III. Discussion
A. Governing Law (Findings 1 - 2)
The I.G. excluded Petitioner pursuant to section 1128(a)(1) of
the Act. This section mandates the exclusion of any individual
who has been convicted of a criminal offense related to the
delivery of an item or service under Medicare or under any State
health care program. An exclusion imposed under section
1128(a)(1) must be for a minimum of five years. Act, section
1128(c)(3)(B).
The Secretary has published a regulation which establishes the
criteria for determining and evaluating whether an exclusion of
more than five years' duration is reasonable in a case involving
an exclusion imposed pursuant to section 1128(a)(1) of the Act.
42 C.F.R. § 1001.102. The regulation provides that, where any of
several defined aggravating factors are present in a case, and
the aggravating factor or factors are not offset by any
mitigating factor or factors, then an exclusion of more than five
years may be reasonable in that case. 42 C.F.R. §
1001.102(b),(c). The regulation makes it plain that, in
determining and deciding whether an exclusion of more than five
years is reasonable in a case involving section 1128(a)(1) of the
Act, the only evidence that may be considered on the issue of
reasonableness is evidence which pertains to one or more of the
defined aggravating and mitigating factors. Id.
The regulation contains no formula for assigning weight to
evidence that is relevant to an aggravating factor or to a
mitigating factor. It is evident that, in any case, the
Secretary intends that this evidence be considered in light of
the Act's remedial purpose. 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 who have
been shown to be untrustworthy. Exclusions imposed pursuant to
section 1128(a)(1) which are for more than five years are
reasonable insofar as they comport with the Act's remedial
purpose. Thus, evidence pertaining to aggravating and mitigating
factors must be considered in light of what the evidence says
about the excluded individual's trustworthiness to provide care.
If such evidence shows the excluded individual to be highly
untrustworthy, then a lengthy exclusion may be reasonable.
B. The relevant evidence (Findings 3 - 4)
The evidence in this case establishes the presence of two
aggravating factors. Petitioner did not prove the presence of
any mitigating factors which might offset the aggravating
factors.
The two aggravating factors which the I.G. alleges, and which I
find to be established, are described in 42 C.F.R. §
1001.102(b)(1) and (2). First, the I.G. asserts that the acts
which resulted in Petitioner's conviction, or similar acts,
caused financial loss to Medicare or State health care programs
of more than $1500. 42 C.F.R. § 1001.102(b)(1). In this case,
the I.G. asserts that Petitioner caused damage to the
Pennsylvania Medicaid program of more than $21,000. Second, the
I.G. asserts that the acts which resulted in Petitioner's
conviction, or similar acts, were committed by Petitioner over a
period of more than one year. 42 C.F.R. § 1001.102(b)(2).
Specifically, the I.G. contends that Petitioner filed fraudulent
claims with the Pennsylvania Medicaid program over a period of
more than three years.
Petitioner does not deny that his unlawful conduct caused damage
to the Pennsylvania Medicaid program in excess of $1500.
However, Petitioner does not admit that his unlawful conduct
occurred over a period of more than one year and challenges the
I.G.'s assertion that the evidence proves that Petitioner's
unlawful conduct occurred over an extended period of time.
The evidence in this case establishes that a six-count criminal
information was filed against Petitioner in a Pennsylvania State
court. I.G. Ex. 2. On January 12, 1996, evidently as part of a
plea bargain, Petitioner entered a nolo contendere plea to the
first count of the information. Id. at 4; I.G. Ex. 4. Counts
two through six of the information were dismissed. Id.
Count one of the information to which Petitioner pleaded nolo
contendere alleges that, between January 2, 1990 and August 17,
1993, Petitioner knowingly and intentionally presented for
allowance or payment false or fraudulent claims for Medicaid
reimbursement. I.G. Ex. 2 at 1. More specifically, this count
charges that, during the period between January 2, 1990 and
August 17, 1993, Petitioner knowingly and intentionally submitted
claims to Medicaid for electrocardiograms that he had not
performed. Id.
On January 12, 1996, a judgment was entered against Petitioner,
based on his plea of nolo contendere to count one of the
information. I.G. Ex. 3, 4. Among other things, Petitioner was
sentenced to pay restitution in the amount of $21,000.
It is true that, in pleading nolo contendere to count one of the
information, Petitioner did not explicitly admit his guilt of the
offense described in that count. However, his agreement to pay
restitution of $21,000 is a tacit admission that he engaged in
unlawful conduct that damaged the Pennsylvania Medicaid program
in at least the amount of the restitution payment. See I.G. Ex.
4 at 7.
Furthermore, the criminal information which was filed against
Petitioner is evidence of Petitioner's unlawful conduct which I
can consider as proof of aggravating factors, even if Petitioner
has not explicitly admitted to any of the charges in the
information. The information is based on a criminal complaint
authored by the special agent of the Pennsylvania Attorney
General who investigated Petitioner. I.G. Ex. 1. The criminal
complaint is supported by an affidavit from the special agent.
I.G. Ex. 1 at 4 - 14.
Although I am not required to accept this evidence on its face, I
must consider it to the extent that it is relevant. And, I must
attach to it the probative value which it is due. The contents
of the criminal information and the complaint have not been
explicitly denied by Petitioner. Petitioner has not offered any
evidence to rebut or contradict the criminal information or
complaint. And, the circumstances under which the complaint was
made - it being issued under oath by a special investigator for
the Attorney General of Pennsylvania - suggest that it should be
afforded a high degree of probative value, in the absence of any
evidence which contradicts it or rebuts it.
The affidavit supporting the criminal complaint establishes that
the special agent reviewed Petitioner's office records to
determine whether Petitioner had maintained records of the items
or services for which he submitted claims to Medicaid. I.G. Ex.
1 at 4. He interviewed Petitioner's patients, as well as a
former employee of Petitioner. Id. The investigator determined
that 82 of Petitioner's patients denied having had tests
performed by Petitioner, for which Petitioner had claimed
reimbursement from Medicaid. Id. at 10 - 11. The special agent
determined also that, of over 1700 electrocardiograms for which
Petitioner claimed reimbursement during the period from January
2, 1990 to August 17, 1993, there were records of only two test
results present in Petitioner's files. Id. at 13. Of over 1100
spirometric w/bronchodilator tests for which Petitioner claimed
reimbursement during the period between March 3, 1992 through
April 19, 1993, there were records of only 14 test results
present in Petitioner's files. Id.
I am persuaded from the affidavit of the special investigator,
and from the unrebutted allegations of the criminal complaint and
information, that the I.G. established both of the aggravating
circumstances alleged. Petitioner committed his crimes against
Medicaid over a period of more than three years. His crimes
caused damages to Medicaid of at least $21,000.
C. Application of the law to the evidence (Findings 5 -
6)
The evidence as to aggravating factors establishes Petitioner to
be a highly untrustworthy individual. A 10-year exclusion is
reasonable in light of the evidence which proves that Petitioner
is not trustworthy.
The evidence proves a persistent pattern of false claims by
Petitioner. I am satisfied that, during the period between
January 2, 1990 and August 17, 1993, Petitioner submitted
hundreds of claims for Medicaid reimbursement for items or
services that he did not provide. This extended pattern of false
claims demonstrates that Petitioner's crimes were not random or
spur-of-the-moment events. Rather, the evidence shows that
Petitioner's crimes were calculated to extract systematically
funds from Medicaid to which Petitioner was not entitled.
The gravity of Petitioner's crimes is made evident by the amount
of restitution that Petitioner was sentenced to pay. The sum of
$21,000 is significant, and it demonstrates that Petitioner's
crimes were extensive.
I find that Petitioner's pattern of unlawful conduct, coupled
with proof of the gravity of his crimes, is ample evidence of a
high degree of untrustworthiness. Given that degree of
untrustworthiness, a 10-year exclusion is reasonable.
Petitioner did not argue that the length of the exclusion imposed
against him by the I.G. should be limited by any agreement he
made in his criminal case. I note, however, that, as an aspect
of Petitioner's plea arrangement, he agreed to a five-year
exclusion from the Pennsylvania Medicaid program. I.G. Ex. 3 at
2. That a State health care program may be willing to accept an
exclusion of a shorter duration than the I.G. determines to be
reasonable is not a factor that I may consider in deciding
whether an exclusion imposed pursuant to section 1128(a)(1) is
reasonable. Here, the reasonableness of the exclusion is
measured solely by evidence pertaining to aggravating factors,
which establishes Petitioner to be untrustworthy.
IV. Conclusion
I conclude that the 10-year exclusion the I.G. imposed against
Petitioner is reasonable. Therefore, I sustain the exclusion.
________________________
Steven T. Kessel
Administrative Law Judge