DATE: January 4, 1999

In the Case of:

Mark Zweig, M.D.,
Petitioner,

- v. -

The Inspector General.

Docket No. C-98-106
Decision No. CR563

By letter dated November 28, 1997, Mark Zweig, M.D., the Petitioner herein, was notified by the Inspector General (I.G.), U.S. Department of Health and Human Services, that he would be excluded for five 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. explained that the exclusion was mandatory under 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 Medicaid program.

Petitioner filed a request for review of the I.G.'s action. The I.G. moved for summary disposition. Petitioner also moved for summary disposition. Because I have determined that there are no material and relevant factual issues in dispute (the only matter to be decided is the legal significance of the undisputed facts), I have decided the case on the basis of the parties' written submissions in lieu of an in-person hearing.

Both parties submitted briefs in this matter. Petitioner has filed a motion to deny the I.G. leave to file a reply brief. I deny Petitioner's motion and accept the I.G.'s reply brief.

The I.G. submitted three proposed exhibits, which I have remarked as I.G. Exhibits 1-3 (I.G. Ex. 1-3). Petitioner objects to these exhibits, claiming that they are not relevant as he was not convicted of a criminal offense. Because I find that they are relevant both to the determination of whether he was in fact convicted of a criminal offense and to the nature of the offense, I deny his motion and accept into evidence I.G. Ex. 1-3.

Petitioner submitted six proposed exhibits which I have designated Petitioner Exhibits 1-6 (P. Ex. 1-6). The I.G. did not object to these exhibits and I accept P. Ex. 1-6 into evidence.

I grant the I.G.'s motion for summary disposition and I deny Petitioner's motion for summary disposition. I affirm the I.G.'s determination to exclude Petitioner from participation in the Medicare and Medicaid programs for a period of five years.

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act make it mandatory for any individual who has been convicted of a criminal offense related to the delivery of an item or service under Medicare or Medicaid to be excluded from participation in such programs for a period of at least five years.

Petitioner contends that he was not convicted within the meaning of section 1128(i) of the Act. He also contends that the procedure under which he was tried pursuant to Article 893 of the Louisiana Code of Criminal Procedure (La. Code Crim. Proc. Ann.) did not result in a conviction, but rather resulted in his acquittal.

Petitioner also asserts that he was not guilty of the criminal conduct for which he was charged. Rather, he maintains that the conduct involved innocent billing errors of which he was unaware.

Petitioner further asserts that he had an agreement with the I.G., whereby the I.G. agreed to reinstate Petitioner, once he was discharged in the criminal matter upon successful completion of his probation.

Finally, Petitioner maintains that it is a violation of his rights under the Unites States Constitution to exclude him. Petitioner claims such action subjects him to double jeopardy, as he has already been tried for the same conduct in a criminal proceeding.

1. During the period relevant to this case, Petitioner was a physician practicing in the State of Louisiana. I.G. Ex. 3.

2. On August 19, 1997, the District Attorney for the Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana, filed a superseding Bill of Information against Petitioner alleging that he engaged in five felony counts of Medicaid fraud, in violation of Louisiana Revised Statutes Annotated (La. Rev. Stat. Ann.) § 14:7.1. I.G. Ex. 1 and 2.

3. On August 19, 1997, in the Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana (Louisiana District Court), Petitioner entered a plea of guilty (pursuant to North Carolina v. Alford, 400 U.S. 25 (1970)) to five counts of felony Medicaid fraud, in violation of La. Rev. Stat. Ann.

§ 14:7.1. I.G. Ex. 1 and 2; P. Ex. 3, at 3.

4. Following entry of Petitioner's plea of guilty and the Louisiana District Court's acceptance of his plea, the Court, pursuant to La. Code Crim. Proc. Ann. art. 893, deferred imposition of sentence upon Petitioner for a period of three years, placed him on probation for three years, and ordered him to pay restitution in the amount of $50,900 to the State of Louisiana. I.G. Ex. 2.

5. On November 28, 1997, the I.G. notified Petitioner that he was being excluded from participation in the Medicare and Medicaid programs for a period of five years, pursuant to section 1128(a)(1) of the Act.

6. Petitioner's entry of a guilty plea, and the acceptance of such plea by the Louisiana District Court pursuant to La. Code Crim. Proc. Ann. art. 893, constitutes a conviction within the meaning of section 1128(i)(3) of the Act.

7. Petitioner's arrangement with the Louisiana District Court, whereby the Court deferred imposition of sentence, ordered Petitioner to serve three years probation and make restitution, constitutes a conviction within the meaning of section 1128(i)(4) of the Act.

8. Petitioner's conviction for Medicaid fraud is related to the delivery of a health care item or service under the Medicare and Medicaid programs within the meaning of section 1128(a)(1) of the Act.

9. Once an individual has been convicted of a program-related criminal offense under section 1128(a)(1) of the Act, exclusion is mandatory under section 1128(c)(3)(B) of the Act.

10. The I.G. properly excluded Petitioner, pursuant to section 1128(a)(1) of the Act, for a period of five years, as required by the minimum mandatory exclusion provision of section 1128(c)(3)(B) of the Act.

The first statutory requirement for the imposition of mandatory exclusion pursuant to section 1128(a)(1) of the Act is that the individual or entity in question be convicted of a criminal offense under federal or State law. I find that this requirement is met in Petitioner's case. The term "convicted" is defined in section 1128(i) of the Act. This section provides that an individual or entity will be convicted of a criminal offense:

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court;

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Section 1128(i) of the Act establishes four alternative definitions of the term "convicted." An individual or entity need satisfy only one of the four definitions under section 1128(i) to establish that the individual or entity has been convicted of a criminal offense within the meaning of the Act.

Initially, I note that the record reflects that Petitioner entered an "Alford plea" on August 19, 1997. P. Ex. 3, at 3. In prior decisions of administrative law judges (ALJs) at the Departmental Appeals Board (DAB), the ALJs have held unequivocally that an "Alford plea" to a criminal charge satisfies the requirement that an individual has been convicted within the meaning of section 1128(i)(3) of the Act. Russell E. Baisley, DAB CR128 (1991); Raymond R. Veloso, DAB CR124 (1991); Magdi Z. Fahmy, DAB CR176 (1992). Under such arrangement, an individual is deemed to have pled guilty. In the instant case, the record shows that Petitioner entered such a plea, and the Court accepted it. Therefore, Petitioner was convicted within the meaning of section 1128(i)(3).

I further find that Petitioner was convicted within the scope of section 1128(i)(4) of the Act. The provisions of La. Code Crim. Proc. Ann. art. 893 state in part:

A. When it appears that the best interests of the public and the defendant will be served, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole . . . . The period of probation shall be specified and shall not be less than one year nor more than five years . . . .

D. (1)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole . . . .

(b)(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this paragraph shall occur only once with respect to any person.

From this language it is clear that La. Code Crim. Proc. Ann. art. 893 establishes a deferred adjudication procedure. In prior decisions addressing deferred adjudications, the ALJs have held that such procedures constitute convictions within the scope of section 1128(i)(4) of the Act. Benjamin P. Council, M.D., DAB CR391 (1995); see also, Carlos E. Zamora, M.D., DAB CR22 (1989). The petitioner in Council entered a guilty plea and was not adjudicated guilty or sentenced but was instead placed on probation as part of a deferred sentencing option. Based on those facts, the ALJ held that the petitioner had entered into a deferred sentencing arrangement within the scope of section 1128(i)(4) of the Act.

In the present case, it is clear that judgment of conviction has been withheld or set aside as Petitioner satisfactorily completed his probation term. On August 20, 1998, the Louisiana District Court entered an order setting aside Petitioner's conviction and dismissing the prosecution against him in accordance with La. Code Crim. Proc. Ann. art. 893. P. Ex. 1. As the DAB decisions cited above indicate, such an arrangement or procedure is within the scope of section 1128(i)(4) of the Act. The fact that the court set aside Petitioner's conviction and dismmissed the charge does not affect Petitioner's conviction for purposes of the Act. There is nothing in the Act that prohibits the I.G. from excluding a Petitioner after a case has been dismissed following a deferred adjudication. Aida Cantu, DAB CR462 (1997). For the purposes of the Act, the I.G. has authority to exclude based upon the fact of the conviction. Id. Here, the record shows that Petitioner has been convicted within the meaning of sections 1128(i)(3) and (4) of the Act.

Next, it is required under section 1128(a)(1) of the Act that the crime at issue be related to the delivery of an item or service under the Medicare or Medicaid programs. The record establishes that Petitioner, by being found guilty of the offenses charged in the Information, was found to have filed, or caused to be filed, fraudulent claims against Medicaid. The filing of fraudulent Medicare or Medicaid claims consistently has been held to constitute clear program-related misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996) (I.G.'s five-year mandatory exclusion of dentist who was convicted in State court of filing false claims upheld); see also, Barbara Johnson, D.D.S., DAB CR78 (1990) (I.G.'s five-year mandatory exclusion of dentist convicted of filing false claims upheld).

To determine if an offense is program-related, an ALJ must analyze the facts and circumstances underlying the conviction to determine whether a nexus or common sense connection links the offense for which a petitioner has been convicted and the delivery of an item or service under a covered program. Berton Siegel, D.O., DAB No. 1467 (1994). In Petitioner's case, a necessary nexus links the facts underlying his crime with the delivery of items or services under Medicaid because the falsified claims leading to Petitioner's conviction resulted in his receipt of fraudulent Medicaid reimbursement. In Rosaly Saba Khalil, M.D., DAB CR353 (1995), the ALJ found that a criminal offense stemming from the fraudulent receipt of reimbursement checks from Medicaid provided a sufficient nexus between the offense and the delivery of items or services under Medicaid. Additionally, the ALJ in Khalil held that a nexus may exist "despite the fact that Petitioner may not have provided items or services to Medicaid recipients personally or made reimbursement claims for those items or services." Id. In the present case, the nexus between Petitioner's offenses and the delivery of items or services is firmly established by his conviction for the charge of "Medicaid Fraud."

In his defense, Petitioner contends that he should not be subject to an exclusion under section 1128(a)(1) of the Act because he was not guilty in fact of the charges in the criminal Information. In effect, Petitioner seeks to challenge the propriety of his criminal conviction, and his assertion amounts to a collateral attack on his conviction. In numerous decisions, the DAB has held such arguments to be ineffectual in the context of an exclusion appeal, as the I.G. and the ALJ are not permitted to look beyond the fact of conviction. Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter Edmondson, DAB No. 1330 (1992).

In this case, Petitioner also maintains that the I.G.'s attorney agreed to reinstate him for purposes of participation in the Medicare and Medicaid programs when his conviction was set aside by the Louisiana District Court. I find, however, that I have no jurisdiction to consider such reinstatement claim. 42 C.F.R.

§ 1001.3004(c). I further find that I have no jurisdiction to consider such argument under principles of contract law or equity, as my jurisdiction as an ALJ is limited to the statute and regulations.⁽²⁾

Petitioner also argues that to exclude him from the Medicare and Medicaid programs would violate the constitutional protection against double jeopardy, because he has been punished in the course of the Louisiana criminal case. An ALJ, however, has no authority to rule upon the constitutionality of the I.G.'s actions. See, e.g., Roberta E. Miller, DAB CR367 (1995). Moreover, the DAB and federal courts have found that exclusions imposed under section 1128 of the Act are remedial in nature, rather than punitive, and do not violate the double jeopardy provision of the Constitution. Id., at 6-7; Manocchio v. Kusserow, 961 F.2d 1539, 1541 (11th Cir. 1992); Kahn v. Inspector General of the U.S. Department of Health and Human Services, 848 F. Supp. 432 (S.D.N.Y. 1994); Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994). Because the purpose of Petitioner's exclusion is to protect program beneficiaries from future misconduct by a provider who has proven himself to be untrustworthy based on a conviction for a program-related crime, and not to punish that provider, Petitioner's exclusion is remedial in nature. Paul Karsch, DAB CR454 (1997).

Petitioner was properly excluded, and the length of his exclusion is mandated by law. Sections 1128(a)(1) and 1128(c)(3)(B) of the Act require that Petitioner be excluded from Medicare and Medicaid for a minimum period of five years, because he has been convicted of a criminal offense related to the delivery of an item or service under the Medicaid program. Therefore, I sustain the five-year exclusion.

Joseph K. Riotto
Administrative Law Judge

1. In this decision, I use the term "Medicaid" to refer to these State health care programs.

2. Petitioner seeks to depose the I.G.'s attorney concerning the matter of reinstatement. As I find that such matter is not within my authority, I deny his motion.