Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Buford Gibson, Jr., M.D., Petitioner,
- v. -
The Inspector General.
Date: October 10, 1997
Docket No. C-97-127
Decision No. CR499
DECISION
I conclude that the 10-year exclusion imposed and directed
against Petitioner, Buford Gibson, Jr., M.D., from participating
as a provider in Medicare and other federally financed health
care programs is reasonable.
PROCEDURAL HISTORY
By letter dated November 19, 1996, the Inspector General (I.G.)
of the United States Department of Health and Human Services
(DHHS) notified Petitioner that, as a result of his conviction of
a criminal offense related to the delivery of an item or service
under the Medicaid (Medi-Cal) program, he was being excluded for
10 years from participation in the Medicare, Medicaid, Maternal
and Child Health Services Block Grant and Block Grants to States
for Social Services programs. 1/ The I.G. further advised
Petitioner that exclusion is mandated by section 1128(a)(1) of
the Social Security Act (Act), 2/ that a five-year minimum
period of exclusion is required by section 1128(c)(3)(B) of the
Act, and that Petitioner's 10-year period of exclusion took into
consideration certain specified aggravating factors.
By letter dated December 20, 1996, Petitioner filed a request for
hearing. Petitioner asserts that his conviction was not related
to the delivery of an item or service under Medicare and
indicates that he did not bill Medicare for any services during
this time. Petitioner also challenges the length of his
exclusion, stating that if he must be excluded, a five-year
exclusion should suffice to accomplish the remedial purposes of
the Act.
The I.G. filed her Brief in Support of Exclusion, with 10
exhibits (I.G. Ex. 1-10). Petitioner filed his Brief in Support
of Non-Exclusion or Limited Exclusion, with four exhibits (P. Ex.
1-4). The I.G. filed her Reply Brief, with three additional
exhibits (I.G. Ex. 11-13). Petitioner filed his Reply Brief.
3/
Petitioner does not object to the admission into evidence of the
exhibits submitted by the I.G., and I admit into evidence I.G.
Ex. 1 through 13. The I.G. objects to the admission into
evidence of the exhibits submitted by Petitioner. I.G. R. Br. at
4. Over the I.G.'s objection, I admit into evidence P. Ex. 1
through 4. No facts of decisional significance are in dispute
and, consequently, there is no need for an in-person hearing.
Based on the law, the evidence before me, and the parties'
written arguments, I conclude that Petitioner's 10-year period of
exclusion comports with the remedial purposes of the Act and is
reasonable. Accordingly, I affirm the 10-year exclusion.
ISSUES
The first issue is whether Petitioner's conviction is related to
the delivery of an item or service under Medicare or Medicaid.
The second issue is whether the 10-year exclusion which the I.G.
imposed and directed against Petitioner is unreasonable. 42
C.F.R. § 1001.2007(a)(1)(ii).
FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCL)
1. Petitioner, a physician trained in adult and child
psychiatry, was licensed to practice medicine in the State of
California. I.G. Ex. 10, 11.
2. Petitioner pled guilty to Grand Theft "(f)rom on or about
May 18, 1991, to on or about January 31, 1992," in Count 3 of an
Information filed in Superior Court, State of California, County
of Los Angeles (Superior Court). I.G. Ex. 1, 4, 5, 6, 7, 8.
3. As enhancements to Count 3, Petitioner admitted to Special
Allegations of Excessive Taking, in an amount in excess of
$150,000, plus an additional amount in excess of $100,000,
totalling an amount in excess of $250,000. I.G. Ex. 1, 4, 5, 6,
7.
4. In November 1995, the Superior Court sentenced Petitioner to
five years' probation, requiring, among other things, that he pay
restitution to Medi-Cal (California's Medicaid program) in the
amount of $500,000, either jointly with his two co-defendants or
severally. I.G. Ex. 6, 7.
5. Petitioner was convicted of a criminal offense, within the
meaning of section 1128(i) of the Act. FFCL 2-4. 42 U.S.C. §
1320a-7(i).
6. Petitioner's conviction is based on his participation in the
submission of false claims to Medi-Cal for psychiatric services
which were, in fact, provided by non-physicians. I.G. Ex. 8.
7. Petitioner's conviction is related to the delivery of an
item or service under Medi-Cal, which is a State health care
program within the meaning of section 1128(a)(1) of the Act. 42
U.S.C. §§ 1320a-7(a)(1), 1320a-7(h); FFCL 4-6.
8. 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. 48 Fed. Reg. 21,662 (1983); 53 Fed. Reg. 12,993
(1988).
9. The I.G. was required to exclude Petitioner from
participating in Medicare and to direct his exclusion from
participating in Medicaid for at least five years. Act, sections
1128(a)(1), 1128(c)(3)(B); 42 U.S.C. §§ 1320a-7(a)(1), 1320a-
7(c)(3)(B).
10. The evidence proves two aggravating factors, either of which
may be considered as a basis for lengthening the period of
exclusion beyond the mandatory five years. 42 C.F.R. §
1001.102(b)(1), (6); FFCL 3, 4.
11. The evidence is insufficient to prove two other aggravating
factors alleged by the I.G. 42 C.F.R. § 1001.102(b)(2), (3).
12. None of the mitigating factors applies. 42 C.F.R. §
1001.102(c)(1)-(3).
13. The evidence relevant to the two aggravating factors proves
Petitioner to be untrustworthy to the extent that a 10-year
exclusion is reasonably necessary to protect the integrity of
federally financed health care programs, and to protect program
beneficiaries and recipients.
14. The 10-year exclusion imposed and directed against
Petitioner by the I.G. comports with the remedial purposes of the
Act and, consequently, is reasonable. FFCL 1-13.
DISCUSSION
The I.G. excluded Petitioner from participating in Medicare and
directed that he be excluded from participating in Medicaid,
pursuant to section 1128(a)(1) of the Act. 4/ The evidence
proves that Petitioner was convicted under California law of a
criminal offense, Grand Theft. The Grand Theft charge was
predicated on Petitioner's involvement in a scheme to defraud the
Medi-Cal program by generating false claims to Medi-Cal for
psychiatric services which were, in fact, provided by non-
physicians. FFCL 6. Further, Petitioner was ordered to pay
restitution to Medi-Cal, which is a State Medicaid program. FFCL
4. Thus, Petitioner's Grand Theft conviction is related to the
delivery of an item or service under Medi-Cal. 42 U.S.C. §
1320a-7(a)(1), 42 U.S.C. § 1320a-7(h). See Tito B. Trinidad,
M.D., DAB CR468, at 6 (1997), and Niranjana B. Parikh, M.D., DAB
No. 1334, at 5-6 (1992).
Consequently, a five-year exclusion is required as a matter of
law as a result of Petitioner's Grand Theft conviction. It is
not necessary that Petitioner's conviction involve Medicare, as
Petitioner seems to argue; a conviction related to a State health
care program, such as Medi-Cal, also triggers exclusion.
Petitioner never asserted that his conviction was not related to
Medi-Cal. 42 U.S.C. §§ 1320a-7(a)(1), 1320a-7(h); I.G. R. Br. at
2-4.
Aggravating factors specified in the regulations may be
considered to be a basis for lengthening the period of exclusion.
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
offsetting mitigating factors, if any, which the regulations
identify. 42 C.F.R. § 1001.102(b)(1)-(6), (c)(1)-(3).
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. Rosaly
Saba Khalil, M.D., DAB CR353, at 10 (1995); Dr. Abdul Abassi, DAB
CR390, at 3-4 (1995). Evidence that does not fall within any of
the aggravating or mitigating factors contained in the
regulations will not be considered as evidence of a party's
trustworthiness. Abassi, DAB CR390, at 3-4.
Petitioner asserts that his motivation was and is to serve the
poor and the underserved, that his patients loved him, that the
quality of his care was great, and that he gave to the community
and actively participated in his church. P. Br. at 4-6.
Petitioner's assertions may be true, but they do not affect my
evaluation of the reasonableness of Petitioner's exclusion. The
regulations limit the factors which an administrative law judge
can consider as relevant to an excluded party's trustworthiness
to provide care.
Although the I.G. alleges four aggravating factors (42 C.F.R. §
1001.102(b)(1), (2), (3), (6)), I find that only two aggravating
factors apply in Petitioner's case (42 C.F.R. § 1001.102(b)(1)
and (6)). No mitigating factors apply in Petitioner's case.
I. Aggravating factors
Below, I discuss the four aggravating factors asserted by the
I.G., 42 C.F.R. § 1001.102(b)(1), (2), (3), (6). I discuss also
the weight I have assigned to the two aggravating factors that
have been proved, taking the most weighty first. 42 C.F.R. §
1001.102(b)(1) and (6).
A. Financial loss to Medicaid
The most weighty aggravating factor in Petitioner's case is the
financial loss to Medicaid. 42 C.F.R. § 1001.102(b)(1).
The threshold that triggers this aggravating factor is $1,500.
California's Medicaid program, Medi-Cal, lost at least $500,000,
5/ as confirmed by the $500,000 in restitution to Medi-Cal
required under the plea agreement to be paid by Petitioner and
his two co-defendants, either jointly or severally. I.G. Ex. 6
at 1.
The more-than-$500,000 loss to Medi-Cal is far greater than the
$1,500 threshold that triggers this aggravating factor (42 C.F.R.
§ 1001.102(b)(1)) and demonstrates the magnitude of Petitioner's
untrustworthiness. The more-than-$500,000 loss to Medi-Cal
persuades me that Petitioner's period of exclusion must be
lengthened significantly beyond the mandatory five years.
B. Overpayment to Petitioner
The next most weighty aggravating factor is the overpayment to
Petitioner by Medi-Cal as a result of the improper billings. 42
C.F.R. § 1001.102(b)(6).
The threshold that triggers this aggravating factor is $1,500.
The amount of Petitioner's illegal gain is evidenced by his
admission during his guilty plea to two enhancements to Count 3,
Special Allegations of Excessive Taking, in excess of the amounts
of $150,000 (the first Special Allegation) and $100,000 (the
second Special Allegation). I.G. Ex. 1 at 6-7; I.G. Ex. 4, 5, 6,
7. Thus, Petitioner illegally gained in excess of $250,000.
Petitioner's illegal gain is further confirmed by the $500,000
6/ in restitution to Medi-Cal that Petitioner is required to pay
under the plea agreement, either jointly with his two co-
defendants or severally. I.G. Ex. 6 at 1.
The $250,000 or more of illegal gain to Petitioner goes far
beyond the $1,500 threshold that triggers this aggravating factor
and underscores his untrustworthiness. Again I am persuaded that
Petitioner's period of exclusion must be lengthened significantly
beyond the mandatory five years.
C. Insufficient proof that Petitioner's acts were
committed over a period of one year or more
The I.G. asserts that the acts resulting in Petitioner's
conviction, or similar acts, were committed over a period of one
year or more. 42 C.F.R. § 1001.102(b)(2). While that may be
true, it has not been proved to my satisfaction in the record
before me.
The Grand Theft count to which Petitioner pled guilty specifies a
period of more-than-eight months, "(f)rom on or about May 18,
1991, to on or about January 31, 1992." I.G. Ex. 1 at 6; I.G.
Ex. 4, 5, 6, 7; FFCL 3.
Petitioner may have committed similar acts in addition to those
specified in the Grand Theft count to which he pled guilty. If
one considers the similar acts charged in the indictment, alleged
to have been committed at various times from May 18, 1991 through
December 1992, Petitioner's acts took place over approximately a
19-month period. I.G. Ex. 1. In addition, there was also the
warning letter to Petitioner from California's Attorney General,
dated January 14, 1991, advising Petitioner that only services
provided by licensed physicians may be billed to Medi-Cal under
procedure code 90844, and that "(u)sing this procedure code to
bill the Medi-Cal program for services rendered by non-physicians
constitutes fraud." I.G. Ex. 2. This letter leads me to believe
that Petitioner may have committed similar acts before, as well
as after, the more-than-eight month period covered by the Grand
Theft count to which he pled guilty.
Nevertheless, I am unable to glean reliable specifics of similar
acts from the evidence to substantiate the allegation that
Petitioner's pattern of repeated similar acts occurred over a
period of one year or more. When Petitioner pled guilty, he
admitted to committing acts that constitute Grand Theft during a
period of more-than-eight months. I make no finding beyond the
more-than-eight months that he admitted.
D. Insufficient proof that Petitioner's acts had
significant adverse impact on program
beneficiaries or others
The I.G. asserts that the acts which 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. 42 C.F.R. § 1001.102(b)(3).
The evidence of record is insufficient to show "that I.A.T.'s
Medi-Cal patients paid substantial amounts in inflated co-
insurance and deductibles," as argued by the I.G. I.G. Br. at
16. I do not know whether Medi-Cal patients pay any portion of
covered services. No evidence was presented to me regarding what
portion, if any, Medi-Cal patients pay of covered services.
The evidence is also insufficient to show that beneficiaries or
others were harmed by psychotherapy treatments by non-physicians.
I.G. Ex. 9 at 2.
Absent specific evidence of significant adverse physical, mental,
or financial impact, I conclude that this aggravating factor has
not been proved.
II. Mitigating factors
I can only consider the mitigating factors identified by the
regulations. 42 C.F R. § 1001.102(c)(1)-(3). None of the
mitigating factors applies in Petitioner's case.
III. Collateral attack on Petitioner's conviction
Petitioner argues that he did not "handle any money" and did not
do the billing at I.A.T. P. Br. at 2-3. Petitioner's arguments
are unavailing, however, because he may not argue the merits of
his criminal case in this administrative proceeding. His
arguments amount to a collateral attack on his conviction. The
correct forum for the Petitioner to have dealt with the
circumstances of his criminal case was the State court in which
he was charged criminally. Francis Shaenboen, R.Ph., DAB No.
1249, at 9 (1991). Paul R. Scollo, D.P.M., DAB No. 1498, at 14
(1994).
The regulations which apply in this case provide that --
When the exclusion is based on the existence of a
conviction, . . . the basis for the underlying determination
is not reviewable and the individual or entity may not
collaterally attack the underlying determination, either on
substantive or procedural grounds. . .
42 C.F.R. § 1001.2007(d).
An appellate panel of the Departmental Appeals Board discussed
the reasoning behind this rule, with regard to a mandatory
exclusion taken under section 1128(a)(2) of the Act, in the case
of Peter J. Edmonson, DAB No. 1330 (1992). In Edmonson, the
appellate panel held:
It is the fact of the conviction which causes the exclusion.
The law does not permit the Secretary to look behind the
conviction. Instead, Congress intended the Secretary to
exclude potentially untrustworthy individuals or entities
based on criminal convictions. This provides protection for
federally funded programs and their beneficiaries and
recipients, without expending program resources to duplicate
existing criminal processes.
Id. at 4. See also Anthony Accaputo, Jr., DAB No. 1416 (1993).
As for Petitioner's argument that he was unaware that his guilty
plea could serve as the basis for the I.G.'s exclusion, a similar
argument was rejected in the case of Douglas Schram, R.Ph., DAB
CR215 (1992), aff'd, DAB No. 1372 (1992). In rejecting
Petitioner's argument, the Administrative Law Judge cited U.S. v.
Suter, 755 F.2d 523, 525 (7th Cir. 1985), and noted that the
court had held that a defendant in a criminal proceeding does not
have to be advised of all the possible consequences which may
flow from his plea. These consequences may include, as is the
case here, temporarily being barred from the receipt of
government reimbursement for professional services. See Paul
Karsch, DAB CR454 (1997), and Thomas Malik, DAB CR357 (1995).
IV. Reasonableness of the 10-year exclusion
Petitioner deliberately and systematically defrauded Medi-Cal,
California's Medicaid program, to obtain illegal payments for the
company co-owned by Petitioner and his two co-defendants, I.A.T.
FFCL 6; I.G. Ex. 3. The theft by I.A.T. from Medi-Cal may have
exceeded the $500,000 in restitution they were ordered to repay
to Medi-Cal.
I.A.T. billed Medi-Cal for psychotherapy provided by a licensed
physician [Petitioner] when the "services" had instead been
provided by licensed psychologists or even unlicensed personnel.
FFCL 6. Even after having been warned by California's Attorney
General to stop submitting these false claims to Medi-Cal,
Petitioner persisted in the illegal scheme. I.G. Ex. 2.
Petitioner's guilty plea acknowledges his responsibility.
Petitioner maintains that because Medicare was not involved, but
only California's Medi-Cal program, the State of California's
judgment should suffice, because it is reasonable and designed to
accomplish the remedial purpose of the judgment. Alternatively,
Petitioner argues that if the exclusion must be upheld, a five-
year exclusion is reasonable to accomplish the remedial purpose.
I disagree with Petitioner and, instead, agree with his Probation
Officer, who wrote: "The incidents in question are interpreted
as being a sophisticated assault on the system which aids in the
weakening of the fabric of society." I.G. Ex. 10 at 17.
Petitioner's Probation Officer assessed the "Circumstances in
Aggravation" as follows:
1. THE PLANNING, SOPHISTICATION OR PROFESSIONALISM
WITH WHICH THE CRIME WAS CARRIED OUT, OR OTHER FACTS,
INDICATE PREMEDITATION.
2. THE DEFENDANT [PETITIONER] TOOK ADVANTAGE OF A
POSITION OF PUBLIC TRUST OR CONFIDENCE TO COMMIT THE
CRIME.
I.G. Ex. 10 at 17-18.
Mandatory exclusions pursuant to section 1128(a)(1) of the Act
are not punitive actions, but administrative remedies designed to
protect federally funded health care programs. Larry White,
R.Ph., DAB No. 1346, at 3 (1992), cited in Paul R. Scollo,
D.P.M., DAB No. 1498, at 15 (1994). Not only did Petitioner take
hundreds of thousands of dollars from Medi-Cal illegally, but he
did so after having been warned by California's Attorney General
that if he persisted he would be prosecuted criminally:
On receipt of this letter, you have been formally
advised that any continued practice by you and/or your
associates to bill the Medi-Cal program, for services
rendered by non-physicians under procedure code 90844
(billing as though the services were actually rendered
by a physician), will result in a criminal prosecution
for submission of false claims to the Medi-Cal program
. . .
I.G. Ex. 2 (dated January 14, 1991).
Petitioner's high degree of culpability and the magnitude of the
two aggravating factors convince me that the 10-year period of
exclusion imposed and directed against Petitioner is necessary to
protect Medicare and Medicaid and the programs' beneficiaries and
recipients. The 10-year period of exclusion should allow the
I.G. adequate time to assess Petitioner's performance and to
determine whether Petitioner is trustworthy to provide services
to beneficiaries and recipients of the Medicare and Medicaid
programs.
CONCLUSION
The I.G.'s determination to exclude Petitioner for 10 years from
participating in Medicare, and to direct that he be excluded for
10 years from participating in Medicaid, comports with the
remedial purposes of the Act and is, thus, reasonable.
Accordingly, I affirm the 10-year exclusion.
Jill S. Clifton
Administrative Law Judge
* * * Footnotes * * *
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. In this Decision, I refer to the parties'
submissions as follows:
Petitioner's
I.G. Submissions Submissions
Brief in Support of Brief in Support of
Exclusion [I.G. Br.] Non-Exclusion or
Limited Exclusion
Reply Brief [P. Br.]
[I.G. R. Br.]
Reply Brief
[P. R. Br.]
4. Section 1128(a)(1) of the Act states:
Sec. 1128 (a) Mandatory Exclusion.-The Secretary shall
exclude the following individuals and entities from
participation in any program under title XVIII and shall
direct that the following individuals and entities be
excluded from participation in any State health care program
(as defined in subsection (h)): (1) CONVICTION OF PROGRAM-
RELATED CRIMES-Any individual or entity that has been
convicted of a criminal offense related to the delivery of
an item or service under title XVIII or under any State
health care program.
5. Evidence from outside the Court proceedings
indicates the loss to Medi-Cal caused by Petitioner and his two
co-defendants was actually in excess of 1.2 million dollars.
I.G. Ex. 3 at 1.
6. Further, the company co-owned by Petitioner and
his two co-defendants, the Institute of Advanced Therapy
(I.A.T.), was the vehicle that Petitioner and his two co-
defendants used to bill Medi-Cal illegally. The illegal gain to
I.A.T. actually exceeded 1.2 million dollars, according to an
auditor from the Financial Crimes Unit of the California State
Attorney General's Office. This evidence was from outside the
Court proceedings. I.G. Ex. 3 at 1.