SUBJECT:

Edgar Cruz-Baez, M.D.,

Petitioner,

The Inspector General

DECISION

I uphold the exclusion of Petitioner, Edgar Cruz-Baez, M.D., from participation in Medicare, Medicaid, and all federal health care programs for five years.

I. Background

By letter dated January 31, 2003, the Inspector General (I.G.) notified Petitioner of her decision to exclude him from program participation, pursuant to section 1128(a) of the Social Security Act (Act), because he was convicted of a criminal offense related to the delivery of an item or service under the Medicare program. Petitioner requested review, and the matter was assigned to me for resolution. The parties agreed that the matter could be decided on the written record. See, Order and Schedule for Filing Briefs and Documentary Evidence (June 6, 2003).

The I.G. has moved to dismiss for failure to file timely, and for abandonment. Petitioner unquestionably filed his hearing request 11 days late, but claims that he did not receive the I.G.'s notice letter. If credible, this would preclude dismissal of his appeal based on timeliness. With respect to the abandonment issue, Petitioner did not file his brief and documentary evidence on or before August 14, 2003, as required by my June 6, 2003 order and briefing schedule. He submitted these documents only following my issuance of an order to show cause. He then did not respond to the show cause order, and has not explained the late filing nor why the case should not be dismissed.

I nevertheless decline to dismiss. Petitioner has at least potentially colorable defenses to dismissal. On the other hand, the I.G.'s position on the merits of this case is unassailable. So, in the interests of administrative economy, I decline to dismiss but instead reach the merits.

Attached to the I.G.'s brief are I.G. Exhibits (I.G. Exs.) 1 - 9. Attached to Petitioner's brief are Petitioner's Exhibits (P. Exs.) 1 and 2 (which include pages labeled 2a through 2k). There being no objection, I.G. Exs. 1 - 9 and P. Exs. 1 - 2 are admitted.

II. Issues

(1) Whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs.

(2) Whether I have the authority to review the length of the period of exclusion.

III. Discussion ⁽¹⁾

1. Petitioner's conviction of conspiracy to defraud the United States through solicitation and receipt of kickbacks in relation to Medicare referrals is an appropriate basis for his exclusion from Medicare, Medicaid, and all other federal health care programs.

Section 1128(a)(1) of the Act requires the Secretary of Health and Human Services to exclude from participation in any federal health care program, as defined in section 1128B(f) of the Act, any individual convicted of a criminal offense relating to the delivery of a health care item or service under Medicare or any state health care program. The statute is unambiguous that this is not a discretionary provision -- the exclusion is mandatory.

The critical fact of this case is not in dispute: on June 21, 2002, Petitioner pled guilty and was convicted on one count of conspiracy to defraud the United States through solicitation and receipt of kickbacks in relation to Medicare referrals, in violation of 18 U.S.C. § 371, a class D felony. P. Ex. 1; I.G. Ex. 8. He therefore falls squarely within the ambit of section 1128(a)(1) and must be excluded.

2. The statute mandates a five-year minimum exclusion.

Section 1128(c)(3)(B) of the Act sets the minimum exclusion period at five years. See also 42 C.F.R. § 1001.102(a). When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. § 1001.2007(a)(2). Thus, although Petitioner complains that he had no opportunity to present mitigating evidence to the I.G., consideration of such information would not decrease his exclusion below the mandatory minimum.

IV. Conclusion

The I.G. therefore properly excluded Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years.

Carolyn Cozad Hughes

Administrative Law Judge

1. I set forth my findings of fact and conclusions of law as separately numbered headings.