Tito B. Trinidad, M.D., DAB CR468 (1997)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: Tito B. Trinidad, M.D., Petitioner,
- v. -
The Inspector General.

Date: March 24, 1997

Docket No. C-97-059
Decision No. CR468

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Tito
B. Trinidad, M.D., for ten years, pursuant to section 1128(a)(1) of the Social Security
Act (Act).

I. Background

On October 21, 1996, the I.G. notified Petitioner that he was being excluded from
participation in Medicare and State health care programs, including Medicaid, for a
period of ten years. The I.G. advised Petitioner that she was excluding him pursuant
to section 1128(a)(1) of the Act, based on Petitioner's conviction of a criminal
offense related to the delivery of an item or service under the Pennsylvania Medical
Assistance Program, the Medicaid program for the State of Pennsylvania.

Petitioner requested a hearing and the case was assigned to me for a hearing and a
decision. The parties agreed that the case could be heard and decided based on
written submissions, including the submission of briefs, reply briefs, and proposed
exhibits.

The I.G. submitted a brief, a reply brief, and eight proposed exhibits (I.G. Ex. 1 - 8).
Petitioner submitted a brief, a reply brief, and three proposed exhibits, which
Petitioner designated as exhibits "A", "B", and "C". For the purposes of maintaining
a uniform record in this case, I have redesignated Petitioner's Exhibit "A" as P. Ex. 1,
Petitioner's Exhibit "B" as P. Ex. 2, and Petitioner's Exhibit "C" as P. Ex. 3. I hereby
receive into evidence I.G. Ex. 1 - 8 and P. Ex. 1 - 3. I base my decision in this case
on the relevant law, the parties' exhibits, and their briefs.

II. Issues, findings of fact and conclusions of law

The issues in this case are whether: (1) the I.G. is authorized to exclude Petitioner
pursuant to section 1128(a)(1) of the Act; and (2) the ten-year exclusion that the I.G.
imposed against Petitioner is reasonable. I make the following findings of fact and
conclusions of law (Findings) to support my decision that the exclusion that the I.G.
imposed against Petitioner is authorized and reasonable. I discuss my Findings at Part
III. of this decision.

1. Petitioner is a physician.

2. On November 29, 1995, a criminal information was filed against Petitioner
in the United States District Court for the Western District of Pennsylvania.

3. The information charged Petitioner, in Count 1, with devising and carrying
out a scheme and artifice, beginning in around June 1993, and continuing until
around February 1994, to defraud the Pennsylvania Medicaid program.

4. The information charged Petitioner additionally, in Count 2, with
intentionally and unlawfully distributing oxycodone, in the form of Percocet
tablets, a Schedule II narcotic controlled substance.

5. On April 17, 1996, Petitioner pleaded guilty to Count 1 and Count 2 of the
information.

6. Petitioner was sentenced to pay restitution in the amount of $27,500.

7. Petitioner was sentenced to a term of incarceration of 18 months.

8. During the period beginning in and around June 1993, and continuing until
around February 1994, Petitioner unlawfully prescribed quantities of Percocet,
a narcotic, to several individuals without evidence that the Percocet was
medically necessary.

9. Petitioner has provided substantial cooperation to prosecuting authorities,
in connections with investigations of other individuals or entities. Petitioner
did not prove that the cooperation he provided resulted in the conviction of
other individuals or entities.

10. The I.G. is required to exclude an individual pursuant to section
1128(a)(1) of the Act for a period of at least five years where that individual is
convicted of a criminal offense related to the delivery of an item or service
under a State Medicaid program.

11. The I.G. may exclude an individual pursuant to section 1128(a)(1) of the
Act for more than five years where there exists an aggravating factor or
factors which is not offset by a mitigating factor or factors.

12. Petitioner was convicted of a criminal offense related to the delivery of an
item or service under the Pennsylvania Medicaid program, and consequently,
the I.G. is required to exclude Petitioner, pursuant to section 1128(a)(1) of
the Act, for a period of at least five years.

13. The I.G. proved the presence of an aggravating factor in that Petitioner's
criminal acts caused damages to the Pennsylvania Medicaid program in an
amount greater than $1,500.

14. The I.G. proved the presence of a second aggravating factor in that
Petitioner was sentenced to a period of incarceration for his crimes.

15. The I.G. proved the presence of a third aggravating factor in that the acts
which resulted in Petitioner's conviction had an adverse physical or mental
impact on one or more program beneficiaries or other individuals.

16. Petitioner did not prove the presence of any mitigating factor.

17. The presence of aggravating factors, not offset by mitigating factors,
establishes Petitioner to be a highly untrustworthy individual. Based on this
evidence, a ten-year exclusion is reasonable.

III. Discussion

A. The relevant facts (Findings 1 - 9)

Petitioner is a physician. I.G. Ex. 6, at 1. On November 29, 1995, a criminal
information was filed against Petitioner in the United States District Court for the
Western District of Pennsylvania. I.G. Ex. 6. The information charged Petitioner
with two counts of criminal misconduct. Id.

The information charged that, from in or around June 1993 until in or around
February 1994, Petitioner devised and intended to devise a scheme and artifice to
defraud the Pennsylvania Medicaid program by means of false and fraudulent
pretenses, representations, and promises. I.G. Ex. 6, at 3. Petitioner was charged
with having conducted 13 office visits with Medicaid patients during which Petitioner
failed to conduct any physical examination of the patients, failed to provide any
medical service to them, and failed to engage in any discussion concerning the health
of the patients. Id. Petitioner was charged with furthering the scheme and artifice by
falsifying Medicaid claim forms for the 13 office visits, in which he fraudulently
represented that he had provided medically necessary procedures to the patients,
when in fact, he had not. Id. at 3 - 4. Petitioner was charged additionally with using
the United States mails to further his scheme or artifice by mailing false Medicaid
claim forms for services that Petitioner allegedly had provided to the 13 patients in
which he fraudulently claimed reimbursement for services, when in fact, Petitioner had
not provided any medically necessary services to any of the 13 patients. Id.

The information charged additionally that Petitioner had furthered his scheme and
artifice by prescribing to Medicaid patients Percocet, a Schedule II narcotic drug
controlled substance, for no legitimate purpose. I.G. Ex. 6, at 3. The information
asserted that Petitioner had prescribed Percocet in the absence of any physical
examination, medical service, or medical discussion concerning patients' physical
health. Id. In a second count, the information specifically asserted that Petitioner
knowingly, intentionally, and unlawfully, distributed Percocet. I.G. Ex. 6, at 6.

The information was based on investigative interviews conducted with a number of
witnesses. I.G. Ex. 1 - 5. Statements given to prosecuting authorities included
statements by several individuals who admitted that Petitioner had supplied them with
quantities of Percocet. I.G. Ex. 1; I.G. Ex. 3; I.G. Ex. 4. One witness averred that
Petitioner admitted to her that he knew that the patient was taking Percocet for
recreational use, but that, notwithstanding, Petitioner continued to prescribe Percocet
to the patient. I.G. Ex. 3, at 2. This witness asserted that Petitioner seldom actually
examined her. Id. Another witness stated that he had visited Petitioner on
approximately 100 occasions to obtain Percocet. I.G. Ex. 4.

The investigative reports included an interview with another physician who averred
that, over the years, he had seen numerous patients who were addicted to Percocet.
I.G. Ex. 2. According to this physician, these patients were receiving their
prescriptions for Percocet from Petitioner. Id.

Petitioner did not deny the truth of the contents of any of these investigative reports.
In the absence of any credible denial, I find these reports to be credible and to
establish the conduct which Petitioner engaged in that is the basis for the criminal
charges that were filed against Petitioner.

On April 29, 1996, Petitioner pled guilty to both counts of the information. I.G. Ex.
8. He was sentenced to pay restitution in the amount of $27,500. Id. at 4. Petitioner
was sentenced to a term of 18 months' imprisonment on each count of the
information, with the two sentences to be served concurrently. Id. at 2.

The sentence of incarceration represented a downward departure from what would
normally be imposed, based on federal sentencing guidelines. I.G. Ex. 8, at 6. The
downward departure in Petitioner's prison sentence was based on a motion filed by
the United States Attorney. P. Ex. 2. In that motion, the United States Attorney
requested that Petitioner's sentence be reduced, due to substantial cooperation that
Petitioner had provided. According to the United States Attorney, Petitioner had
contributed substantially to the continued investigation of narcotics laws violators.
Id. at 2. He recited that Petitioner had agreed to provide, if called upon, truthful
testimony in grand jury, pretrial, trial, sentencing and post-conviction proceedings.

The evidence offered by Petitioner concerning his cooperation with prosecuting
authorities proves that he has cooperated with these authorities, and that they
consider the information which Petitioner supplied to them to be valuable. However,
there is no evidence that Petitioner's cooperation has resulted in the conviction of
other individuals or entities. See P. Ex. 2.

B. The governing law (Findings 10 - 11)

The I.G. excluded Petitioner based on her determination that Petitioner was convicted
of a criminal offense under section 1128(a)(1) of the Act. Section 1128(a)(1)
mandates exclusion of any individual who is convicted of a criminal offense related to
the delivery of an item or service under Medicare or a State health care program,
including any State Medicaid program. The minimum exclusion period for an
individual excluded pursuant to section 1128(a)(1) is five years. Act, section
1128(c)(3)(B).

Section 1128 is a remedial statute. Its purpose is not to punish offenders, but to
ensure that federally-funded health care programs, and the beneficiaries and recipients
of these programs, are protected from untrustworthy individuals and entities. An
exclusion must comport with the Act's remedial purpose in order to be reasonable.

The Secretary of the United States Department of Health and Human Services
(Secretary) has published regulations which contain criteria for determining the length
of exclusions imposed under section 1128 of the Act. These regulations are set forth
at 42 C.F.R. Part 1001. The regulation which establishes criteria for determining the
length of an exclusion imposed under section 1128(a)(1) of the Act is at 42 C.F.R. §
1001.102.

The regulation provides that an exclusion imposed under section 1128(a)(1) may be
for more than five years if there exists a factor or factors in a case which the
regulation defines to be aggravating, which are not offset by a factor or factors which
the regulation defines to be mitigating. 42 C.F.R. § 1001.102(b), (c). The regulation
makes it plain that only evidence which relates to specified aggravating or mitigating
factors may be considered in determining what may be a reasonable exclusion under
section 1128(a)(1). Id. Evidence which does not relate to one of the specified
aggravating or mitigating factors may not be considered.

The presence in a case of an aggravating factor or factors, even if not offset by the
presence of a mitigating factor or factors, does not mean that an exclusion of more
than five years must be imposed in that case. While an exclusion of more than five
years may be authorized, the evidence pertaining to aggravating and mitigating factors
must be examined to see what it shows about the individual's or entity's
trustworthiness to provide care.

C. Application of the law to the relevant facts (Findings 12 - 17)

Petitioner has not denied that he was convicted of a criminal offense within the
meaning of section 1128(a)(1) of the Act. I find from the evidence that it is manifest
that he was convicted of such an offense. Petitioner pled guilty to a scheme and an
artifice to defraud the Pennsylvania Medicaid program, a federally-funded health care
program. Fraud directed against a federally-funded health care program is a criminal
offense related to the delivery of an item or service under that program. It would not
have been possible for Petitioner to have perpetrated his fraud, but for his false
reimbursement claims for services that he allegedly delivered to Medicaid recipients.

The I.G. must exclude Petitioner, inasmuch as Petitioner has been convicted of a
criminal offense within the meaning of section 1128(a)(1) of the Act. The minimum
exclusion that I may sustain in this case is for five years.

There remains the issue of whether the ten-year exclusion that the I.G. imposed is
reasonable. I find that it is reasonable, based on the presence in this case of
aggravating factors that are not offset by mitigating factors. I am convinced that
Petitioner is a highly untrustworthy individual, particularly by evidence that he
engaged in conduct that damaged the health of his patients.

The I.G. alleged and proved the presence of three aggravating factors. These are as
follows.

Petitioner's criminal acts damaged the Pennsylvania Medicaid program in an
amount in excess of $1500. 42 C.F.R. § 1001.102(b)(1). I make this conclusion
based on Petitioner's sentence that he pay restitution for his crimes in the amount of
$27,500. I.G. Ex. 8, at 4. I infer that the amount of restitution is at least an
approximation of the damages that Petitioner caused by his fraud to the Pennsylvania
Medicaid program.

Petitioner was sentenced to incarceration for his fraud. 42 C.F.R. §
1001.102(b)(4). The record of Petitioner's sentencing establishes that he was
sentenced to serve two 18-month terms of imprisonment, to be served concurrently.
I.G. Ex. 8, at 2.

Petitioner's criminal acts caused physical harm to Medicaid recipients or
other individuals. 42 C.F.R. § 1001.102(b)(3). The unrebutted evidence offered by
the I.G. proves that Petitioner prescribed Percocet, a Schedule II controlled narcotic
substance, to Medicaid recipients, without there being a medical necessity for the
prescriptions. I.G. Ex. 1, 3, 4. Petitioner knew that at least one of his patients was
using Percocet for recreational, and not for medical, purposes. I.G. Ex. 3, at 2. Yet,
Petitioner continued to supply Percocet to this patient. Id. Petitioner was, in fact,
serving as a source of supply of Percocet for numerous addicted individuals. I.G. Ex.
2.

I do not find that Petitioner proved the presence of any mitigating factors. Petitioner
proved that he cooperated with prosecuting authorities, and that these authorities
consider Petitioner's cooperation to have been valuable. Petitioner's cooperation was
a principal reason that the United States Attorney moved to have Petitioner's
sentence of incarceration set at a level below that which is normally required for the
crimes of which Petitioner was convicted.

However, this evidence does not prove the presence of a mitigating factor. Under the
regulation which governs the length of exclusions imposed pursuant to section
1128(a)(1) of the Act, cooperation with prosecuting officials is not a mitigating factor
unless it results in the conviction of other individuals. 42 C.F.R. § 1001.102(c)(3(i).
Here, there is no evidence that others were convicted as a result of Petitioner's
cooperation. See P. Ex. 2.

Petitioner did not prove the presence of any other mitigating factors. Petitioner has
offered statements by patients and other individuals attesting to his skill as a physician
and his dedication to the welfare of his patients. Assuming these statements to be
true, they do not comprise proof of any mitigating factor stated in the regulations.
See 42 C.F.R. § 1001.102(c)(1) - (3).

The amount of Petitioner's fraud is substantial, and is strong evidence that Petitioner
is not trustworthy. I would be inclined to sustain an exclusion of more than five years
based on that evidence alone.

However, I find the evidence of the quantity of Petitioner's fraud to be not nearly so
serious evidence of a lack of trustworthiness as is the evidence which proves that
Petitioner engaged in conduct that was harmful to his patients. It is apparent, from
evidence proving that Petitioner prescribed narcotics to patients whom Petitioner
knew were addicts who had no medical need for narcotics, that Petitioner was
manifestly indifferent to the health and safety of his patients.

I find a ten-year exclusion to be reasonable in this case because of the high degree of
untrustworthiness displayed by Petitioner. A lengthy exclusion is necessary, both to
protect the integrity of federally-funded health care programs, and to protect the
health and safety of beneficiaries and recipients of those programs.

Although Petitioner did not prove that his cooperation with prosecuting authorities is
a mitigating factor, I would be inclined to sustain a ten-year exclusion in this case
even had Petitioner proved that his cooperation resulted in the conviction of others.
That is because I find that the evidence of Petitioner's unlawful prescription of
narcotics shows Petitioner to be so manifestly untrustworthy, that I would not find
such evidence to be offset by proof of subsequent cooperation by Petitioner with
prosecutors.

IV. Conclusion

I conclude that the I.G. is required to exclude Petitioner for at least five years
pursuant to section 1128(a)(1) of the Act, because Petitioner was convicted of a
criminal offense related to the delivery of an item or service under the Pennsylvania
Medicaid program. I conclude also that a ten-year exclusion is reasonable.

______________________
Steven T. Kessel
Administrative Law Judge