Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Christino Enriquez, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: March 11, 1991
Docket No. C-277
DECISION
On June 14, 1990, the Inspector General (I.G.) notified
Petitioner that he was being excluded from participation
in the Medicare and State health care programs. 1/ The
I.G. told Petitioner that he was being excluded as a
result of his conviction in a Florida court of a criminal
offense related to Medicare. Petitioner was advised that
the exclusion of individuals convicted of such an offense
is mandated by section 1128(a)(1) of the Social Security
Act (Act). The I.G. further advised Petitioner that the
law required that the minimum period of such an exclusion
be for not less than five years. The I.G. informed
Petitioner that he was being excluded for a period of
eight years.
Petitioner timely requested a hearing as to the
exclusion, and the case was assigned to me for a hearing
and a decision. I held a hearing in Fort Lauderdale,
Florida on November 14, 1990.
I have considered the evidence introduced by both parties
at the November 14 hearing. Based on the evidence and
applicable law, I conclude that the eight year exclusion
imposed against Petitioner is reasonable. Therefore, I
sustain the exclusion imposed and directed against
Petitioner by the I.G.
ISSUES
The issues in this case are whether:
a. The effective date of the exclusion should be
the date when payments of Medicare reimbursement to
Petitioner were first suspended by the Medicare
program; and
b. The length of the exclusion is reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a physician who has specialized in
cardiology and internal medicine. Tr. at 66. 2/
2. At all times relevant to this case, Petitioner owned
clinics in Fort Lauderdale and Davie, Florida, named
Doctor's Gold Plus Center I and II (Center I and II).
I.G. Ex. 3.
3. In or around June, 1984, Center I affiliated with
International Medical Centers, Inc. (IMC). I.G. Ex. 3.
4. On or about April 1, 1985, Center II affiliated with
IMC. I.G. Ex. 3.
5. IMC is a Health Maintenance Organization (HMO) which
operates in Southern Florida. I.G. Ex. 3.
6. An HMO is an organization which agrees to provide
medical and health services to its members in exchange
for a fixed preset payment, without regard to the actual
amount or cost of services provided to its members. I.G.
Ex. 3.
7. At all times relevant to this action, federal law
allowed Medicare beneficiaries to enroll in HMOs and have
Medicare payments for the cost of their health care made
directly to the HMO. I.G. Ex. 3.
8. HMOs seeking to enroll Medicare beneficiaries are
required to accept for enrollment any Medicare
beneficiary who wishes to enroll, without regard to the
state of his or her health. I.G. Ex. 3.
9. HMOs seeking to enroll Medicare beneficiaries must
qualify for and enter into contracts with the Health Care
Financing Administration (HCFA) of the Department of
Health and Human Services (DHHS) under various
arrangements, one kind being a "risk-based" contract.
I.G. Ex. 3.
10. Under a "risk-based" contract, the HMO receives a
fixed monthly payment, known as a capitation payment, for
each Medicare beneficiary enrolled. I.G. Ex. 3.
11. This method of payment differs from non-HMO Medicare
reimbursement in which the medical provider is paid only
for services actually rendered to a Medicare beneficiary.
I.G. Ex. 3.
12. Under a "risk-based" contract, the HMO may retain a
certain percentage of the capitation payment as profit or
absorb any extra cost as a loss when its actual cost for
a patient differs from the capitation payment. I.G. Ex.
3.
13. The "risk-based" contract is intended to create
incentives for the HMO to control costs and provide
appropriate services in a cost-efficient manner. I.G.
Ex. 3.
14. Since 1982, IMC operated a "risk-based" contract
with HCFA for Medicare beneficiaries called the "IMC Gold
Plus Plan" (Plan). I.G. Ex. 3.
15. The IMC Plan provided care through wholly-owned
subsidiary and independently-owned affiliated provider
clinics located throughout its service areas. I.G. Ex.
3.
16. Petitioner's clinics were independently-owned
affiliated provider clinics under contract to IMC. I.G.
Ex. 3.
17. The contract between affiliates and IMC was based on
"risk-sharing". I.G. Ex. 3.
18. As an incentive to join the Plan, IMC promised to
provide beneficiaries not only with all services they are
entitled to receive under Medicare, but also additional
benefits, such as the elimination of Medicare Part A and
Part B deductible payments, no coinsurance, free
prescription drugs, free eyeglasses, and routine dental
care services that are not covered under Medicare. I.G.
Ex. 3.
19. By letter dated May 9, 1986, Blue Cross and Blue
Shield of Florida, the fiscal intermediary for Medicare,
suspended payments to Petitioner for Part B assigned
Medicare claims. P. Ex. 1; Tr. at 48, 60, and 61.
20. On March 5, 1987, Petitioner was indicted in the
United States District Court for the Southern District of
Florida (District Court) on 16 counts of mail fraud and
one count of conspiracy to defraud and for obtaining
money from the United States Government, through DHHS, in
violation of 18 U.S.C 1341, 1342 and 1371. I.G. Ex. 3.
21. Count 1, paragraphs 1-26, alleged that Petitioner's
affiliated clinics enrolled Medicare beneficiaries as HMO
participants. I.G. Ex. 3.
22. Count 1, paragraphs 1-26, further alleged a scheme
in which Petitioner, and his office manager, discouraged
Medicare beneficiaries with serious health problems from
enrolling in the HMO and encouraged disenrollment of
beneficiaries who developed such health problems after
initially enrolling, which is prohibited by 42 U.S.C.
1395mm(c)(3). I.G. Ex. 3.
23. On June 6, 1988, Petitioner pled guilty to one count
of mail fraud (Count 5 of the indictment) and to the
conspiracy count (Count l7 of the indictment). I.G. Ex.
4.
24. Count 5 of the indictment realleged and incorporated
Count 1, paragraphs 1-26, of the indictment. I.G. Ex. 3.
25. In pleading guilty to Count 5 of the indictment,
Petitioner admitted to having committed the acts
described in Count 1, paragraphs 1-26. I.G. Ex. 3, 4.
26. Count 17 of the indictment realleged and
incorporated Count 1, paragraphs 1-16 and 18-26. I.G.
Ex. 3, 4.
27. In pleading guilty to Count 17 of the indictment,
Petitioner admitted to having committed the acts
described in Count 1, paragraphs 1-16 and 18-26. I.G.
Ex. 3, 4.
28. In pleading guilty to Counts 5 and 17 of the
indictment, Petitioner admitted to devising and
participating in a scheme to defraud the Medicare program
of more than $100,000.00 over a period of approximately
two years. I.G. Ex. 3, 4.
29. In pleading guilty to Counts 5 and 17 of the
indictment, Petitioner admitted to having excluded
Medicare beneficiaries from Centers I and II and shifting
them to his risk-free private practice. I.G. Ex. 3, 4.
30. In pleading guilty to Counts 5 and 17 of the
indictment, Petitioner admitted that his fraudulent
scheme enabled him to enjoy the advantages of a risk-
sharing arrangement by receiving fixed capitation
payments on low-expense Medicare beneficiaries, while
evading the disadvantages of such arrangement by
diverting high-expense Medicare beneficiaries into his
risk-free private practice. I.G. Ex. 3, 4.
31. On August 31, 1988, the District Court found
Petitioner guilty, entered a judgment of conviction, and
sentenced Petitioner to 18 months confinement on the
conspiracy count. I.G. Ex. 4.
32. On the mail fraud count, the District Court
suspended sentence and placed Petitioner on probation for
five years. I.G. Ex. 4.
33. Petitioner's conditions of probation included
repayment of the costs of the investigation and
performance of 200 hours of community service per year
for five years. I.G. Ex. 4.
34. Petitioner was convicted of a criminal offense
related to the delivery of an item or service within the
meaning of section 1128(a)(1) of the Social Security Act.
Findings 20-28; Social Security Act section 1128(i).
35. The Secretary of Health and Human Services
(Secretary) delegated to the I.G. the authority to
determine, impose, and direct exclusions pursuant to
section 1128 of the Social Security Act. 48 Fed. Reg.
21662 (May 13, 1983).
36. On June 14, 1990, the I.G. excluded Petitioner from
participating in Medicare and directed that he be
excluded from participating in Medicaid, pursuant to
section 1128 of the Social Security Act, effective 20
days from the date of the letter. I.G. Ex. 1.
37. The exclusion imposed and directed against
Petitioner is for eight years. I.G. Ex. 1.
38. An exclusion in this case of at least five years is
mandated by law. Findings 27-28; Social Security Act
sections 1128(a)(1) and 1128(c)(3)(B).
39. Under section 1128(a)(1), the I.G. may impose and
direct an exclusion of more than five years in the
appropriate circumstance.
40. The remedial purpose of section 1128 of the Social
Security Act is to protect the integrity of federally-
funded health care programs from individuals and entities
who have been shown to be untrustworthy. Social Security
Act, section 1128.
41. Petitioner engaged in criminal acts that jeopardized
the integrity of the Medicare trust fund. Findings 27-
30; see 42 C.F.R. 1001.125(b)(2).
42. Petitioner's criminal acts damaged the Medicare
program by more than $100,000.00, a substantial sum.
Finding 28; see 42 C.F.R. 1001.125(b)(3).
43. Petitioner refuses to acknowledge the wrongfulness
of his acts or the adverse impact that his acts have had
on the Medicare program. See Tr. at 60, 75-78.
44. Petitioner, by his acts and his failure to
comprehend the wrongfulness of his acts or the harm that
his acts caused, has demonstrated that he cannot be
trusted to deal with beneficiaries and recipients of
federally-funded health care programs.
45. A lengthy exclusion is needed in this case to
protect federally-funded health care programs from future
misconduct by Petitioner.
46. The eight year exclusion imposed and directed
against Petitioner by the I.G. is reasonable. Findings
1-45.
47. I do not have authority to change the effective date
of the exclusion. Social Security Act, section 1128.
ANALYSIS
The parties do not dispute that Petitioner was convicted
of a criminal offense related to the delivery of an item
or service under Medicare. The I.G. has authority under
section 1128(a)(1) of the Act to impose and direct an
exclusion against Petitioner from participating in the
Medicare and Medicaid programs. Under section
1128(c)(3)(B), the I.G. must impose a mandatory minimum
exclusion of five years for individuals convicted of
criminal offenses related to the delivery of items or
services under Medicare and Medicaid. Therefore, the
minimum exclusion which the law requires be imposed and
directed against Petitioner is for five years. The I.G.
excluded Petitioner for a period of eight years. The
contested issues in this case are the effective date of
the exclusion and the reasonableness of the eight-year
exclusion which the I.G. imposed and directed against
Petitioner.
48. The effective date of Petitioner's exclusion cannot
be changed.
Petitioner provided evidence that payments on all
assigned claims submitted by Petitioner under Part B of
the Medicare Program were suspended on May 9, 1986.
Petitioner argued that, as a result of this suspension of
payments, he was effectively excluded from participation
in Medicare for a period of over four years prior to the
June 14, 1990 notification of exclusion by the I.G.
Petitioner claims that an additional exclusion of eight
years, after his suspension in 1986, results in a twelve-
year exclusion, unless I change the effective date of his
exclusion to be the date that Medicare suspended payment
on the claims he submitted.
The I.G. argues that Petitioner is requesting that I
retroactively backdate the commencement date of the
exclusion. He contends that to give Petitioner's
exclusion retroactive effect would have the bizarre
result of commencing the exclusion before the date of the
conviction on which it is based. The I.G. argues further
that the remedies of suspension of payments and exclusion
are different remedies which are intended to achieve
different purposes and which have quite different effect
on Petitioner's standing to claim Medicare reimbursement
for his services. The I.G. contends that Petitioner is
confusing the two remedies in an effort to shorten the
length of the exclusion.
My authority to hear and decide cases under section 1128
does not include authority to change the commencement
date of an exclusion. Samuel W. Chang, M.D., DAB App.
1198 at 9 (1990). Thus, even if I agreed with
Petitioner's assertion that he has effectively been
excluded for more than eight years, I would not have
authority to backdate the exclusion imposed and directed
against Petitioner to credit him for "time served."
However, I do not accept as correct the premise that
Petitioner has effectively been excluded for longer than
the period imposed and directed by the I.G.
The suspension of payments imposed against Petitioner
prior to the imposition of the exclusion in this case is
a remedy which is different from the exclusion remedy.
Suspension of payments did not bar Petitioner from
claiming and receiving reimbursement for Medicare
services which he provided. The suspension of payments
meant only that Medicare held reimbursement to Petitioner
in abeyance, pending examination of his claims for
possible irregularities. In contrast, the exclusion
which the I.G. imposed against Petitioner bars him from
being reimbursed for any Medicare services. Therefore,
Petitioner's assertion that he has effectively been
excluded from participation for 12 years is incorrect.
The purpose of a suspension of payments under 42 C.F.R.
405.37l(b) is to withhold payments to a provider and
protect the Medicare program against financial loss
during an investigation of possible program-related
misconduct. David S. Muransky, D.C., DAB App. 1227
(1991). See Stanley H. Guberman, DAB Civ. Rem. C-240
(1990) This is different from the remedial purpose in
section 1128 of protecting program recipients and
beneficiaries from untrustworthy providers. 3/
The effect of the suspension of payments to Petitioner
was to withhold payments. The suspension of payments did
not prevent Petitioner from continuing to submit Part B
Medicare assigned claims or treating Medicare
beneficiaries. Muransky, supra. If Petitioner ceased
submitting claims during the period that payments were
suspended, that was a decision he was entitled to make.
However, he could have continued to submit claims and,
eventually, would have received payment for those claims,
assuming the claims were correctly submitted for
reimbursable items or services.
Petitioner is essentially asking me to credit the period
of his suspension of payments against the exclusion and
to retroactively start the running time for the exclusion
as of the date that Medicare suspended payments to
Petitioner. As I note above, Petitioner is confusing
"suspension of payments" with "exclusion." The two
remedies are not synonymous. The I.G. was not obligated
to count the suspension of payment period as credit
against the period of exclusion.
49. The eight year exclusion imposed and directed by the
I.G. is reasonable.
Section 1128 is a civil remedies statute. The remedial
purpose of section 1128 is to enable the Secretary to
protect federally-funded health care programs and their
beneficiaries and recipients from individuals and
entities who have proven by their misconduct that they
are untrustworthy. Exclusions are intended to protect
against future misconduct by providers.
Federally-funded health care programs are no more
obligated to deal with dishonest or untrustworthy
providers than any purchaser of goods or services would
be obligated to deal with a dishonest or untrustworthy
supplier. The exclusion remedy allows the Secretary to
suspend his contractual relationship with those providers
of items or services who are dishonest or untrustworthy.
The remedy enables the Secretary to assure that
federally-funded health care programs will not continue
to be harmed by dishonest or untrustworthy providers of
items or services. The exclusion remedy is closely
analogous to the civil remedy of termination or
suspension of a contract to forestall future damages from
a continuing breach of that contract.
Exclusion may have the ancillary benefit of deterring
providers of items or services from engaging in the same
or similar misconduct as that engaged in by excluded
providers. However, the primary purpose of an exclusion
is the remedial purpose of protecting the trust funds and
beneficiaries and recipients of those funds. Deterrence
cannot be a primary purpose for imposing an exclusion.
Where deterrence becomes the primary purpose, section
1128 no longer accomplishes the civil remedies objectives
intended by Congress. Punishment, rather than remedy,
becomes the end.
[A] civil sanction that cannot fairly be said
solely to serve a remedial purpose, but rather
can be explained only as also serving either
retributive or deterrent purposes, is
punishment, as we have come to understand the
term.
United States v. Halper, 490 U.S. 435, 448 (1989).
Therefore, in determining the reasonableness of an
exclusion, the primary consideration must be the degree
to which the exclusion serves the law's remedial
objective of protecting program recipients and
beneficiaries from untrustworthy providers. An exclusion
is not excessive if it does reasonably serve these
objectives.
The hearing in an exclusion case is, by law, de novo.
Social Security Act, section 205(b). Evidence which is
relevant to the reasonableness of an exclusion will be
admitted in a hearing on an exclusion whether or not that
evidence was available to the I.G. at the time the I.G.
made his exclusion determination. Evidence which relates
to a petitioner's trustworthiness or to the remedial
objectives of the exclusion law is admissible at an
exclusion hearing even if that evidence is of conduct
other than that which establishes statutory authority to
exclude a petitioner. For example, at the hearing in
this case, I permitted Petitioner to offer evidence
concerning the work he had performed subsequent to his
conviction, because I considered that evidence to be
relevant to the issue of trustworthiness.
The purpose of the hearing is not to determine how
accurately the I.G. applied the law to the facts before
him, but whether, based on all relevant evidence, the
exclusion comports with legislative intent. My purpose
is not to second-guess the I.G.'s exclusion determination
so much as it is to decide whether the determination was
extreme or excessive. 48 Fed. Reg. 3744 (Jan. 27, 1983).
Should I determine that an exclusion is extreme or
excessive, I have authority to modify the exclusion,
based on the law and the evidence. Social Security Act,
section 205(b).
The Secretary has adopted regulations to be applied in
exclusion cases. The regulations specifically apply to
exclusion cases for "program-related" offenses
(convictions for criminal offenses relating to Medicare
and Medicaid). The regulations express the Secretary's
policy for evaluating cases where the I.G. has discretion
in determining the length of an exclusion, including
exclusion periods beyond the mandatory minimum. The
regulations require the I.G. to consider factors related
to the seriousness and program impact of the offense and
to balance those factors against any factors that may
exist demonstrating trustworthiness. 42 C.F.R.
1001.125(b)(1) - (7).
Petitioner pleaded guilty to mail fraud and to having
conspired to defraud the United States government. In
doing so, Petitioner admitted to participating in massive
fraud against the Medicare program. He acknowledged that
he had conspired to steal more than $100,000.00 from
Medicare over a two-year period.
I conclude that the offense which Petitioner acknowledged
committing establishes him to be a highly untrustworthy
individual. Petitioner not only conspired to defraud
Medicare, but his fraud struck at the heart of the
program's cost containment efforts. The essence of
Petitioner's crime was that he agreed to participate in
an HMO whose purposes included controlling Medicare
costs, and then betrayed the trust placed in him by the
Medicare program, by diverting patients to his own
practice when that suited his purpose. Such duplicity
manifests an intent to systematically steal from the
program. The fact that Petitioner carried it out over a
period of years underscores the calculating nature of his
fraud. See 42 C.F.R. 1001.125(b)(1), (2), (3).
Petitioner asserted at the hearing that he had not
intended to defraud Medicare. He acknowledged that he
had diverted patients to his own practice, but asserted
that he had done so in their interest, and not his own.
The I.G. argued that I should not admit this testimony,
contending that Petitioner was collaterally estopped from
denying that which he had previously admitted. I
overruled the I.G.'s objection. However, I do not
consider Petitioner's testimony as probative of his
trustworthiness so much as I find that it betrays a
willingness to describe facts in a light most favorable
to him. Petitioner's present characterization of the
facts of his case evidences untrustworthiness, and not
trustworthiness, as he contends.
It is a settled principle that a petitioner cannot
challenge the I.G.'s authority to exclude him by denying
that he is guilty of that which he has been convicted.
Andy E. Bailey, C.T., DAB App. 1131 (1990); John W.
Foderick, M.D., DAB App. 1125 (1990); Roosevelt A.
Striggles, DAB Civ. Rem. C-301 (1991). The I.G.'s
authority to exclude a party under section 1128(a)(1)
arises by virtue of that party's conviction of a criminal
offense as described in the Act. A party's actual guilt
or innocence is not a relevant factor to be considered in
deciding whether the I.G. has authority to impose or
direct an exclusion pursuant to section 1128(a)(1). 4/
However, the issue of whether an exclusion is reasonable
is separate from the issue of whether the I.G. has
authority to impose and direct an exclusion. A party may
offer evidence at an exclusion hearing concerning that
party's culpability for the offense of which he or she
was convicted. That evidence relates to trustworthiness
and is therefore relevant. See 42 C.F.R. 1001.125(b)(4),
(6).
I conclude that in this case Petitioner's denial of
culpability is additional evidence of his lack of
trustworthiness. The record establishes that, when it
was in Petitioner's interest to do so, he admitted to
having engaged in a complex and massive conspiracy to
defraud Medicare. The allegations contained in the
indictment to which Petitioner pleaded were detailed and
unambiguous. Petitioner was not forced to admit to these
allegations. Now, Petitioner asserts that, after all, he
did not really commit the acts as alleged. Such
assertions are patently self-serving and not credible.
Moreover, they suggest that Petitioner is willing to say
what he believes will impress the fact-finder.
I am convinced from the foregoing evidence that
federally-funded health care programs need to be
protected from Petitioner for a lengthy period. An
eight-year exclusion is reasonable in this case, because
it assures that Petitioner will, for a substantial
period, not be in a position to commit additional harmful
acts against such programs.
In reaching my decision, I have considered evidence
offered by Petitioner concerning his post-conviction
public service acts and his employment by an agency of
the State of Florida. I have no doubt that Petitioner is
presently performing socially useful work. To some
extent, this evidence does suggest that Petitioner has
reformed and is less of a threat than previously.
However, such evidence is outweighed in this case by
evidence described above which shows Petitioner to be
untrustworthy.
Petitioner also argues that the exclusion in this case is
unreasonable because nearly two years elapsed between the
date of his criminal conviction and the date of the
I.G.'s exclusion determination. At the hearing, the I.G.
acknowledged that he had delayed imposing and directing
an exclusion against Petitioner because the records in
Petitioner's case had been administratively lost for a
period of time. The I.G. argues that Petitioner was not
harmed by the late imposition and direction of the
exclusion. The I.G. asserts that, had he promptly
excluded Petitioner, he would have excluded Petitioner
for ten years, and not for the eight years that he
imposed and directed. The exclusion was reduced by two
years to account for its late imposition.
My authority to hear and decide cases brought under
section 1128 is limited to deciding whether the I.G. has
authority to impose an exclusion and whether the length
of the exclusion is reasonable. There is no "statute of
limitations" in section 1128. The I.G. has authority
under section 1128(a) to impose and direct exclusions
against a party, so long as he can establish that the
party has been convicted of a criminal offense as
described in that section.
The need for an exclusion of a particular duration could
conceivably be affected by the date on which the
exclusion is imposed. Ultimately, the question which
must be asked in determining whether an exclusion is
reasonable is whether it is needed to protect the
integrity of federally-funded health care programs and
their beneficiaries and recipients. The likelihood that
a party will engage in the kind of offense which resulted
in his conviction may diminish with the passage of time
and intervening events. An exclusion of a given duration
might be reasonable if imposed promptly upon conviction.
However, an exclusion of the same duration may be
unreasonable if imposed after a lengthy delay. In the
latter circumstance, the excluded party may have
demonstrated in the intervening period that he has become
trustworthy.
I conclude that the eight-year exclusion imposed and
directed in this case is reasonable despite the lapse of
time between Petitioner's conviction and the imposition
of the exclusion. As I note above, Petitioner is a
manifestly untrustworthy individual who, as of the date
of the hearing, refused to fully acknowledge his unlawful
conduct. Had the I.G. moved more promptly to exclude
Petitioner, a lengthier exclusion than eight years might
have been reasonable. In light of the facts of this
case, including the date when the I.G. imposed and
directed the exclusion, a protective period of eight
years is not excessive. 5/
CONCLUSION
Based on the evidence and the law, I conclude that the
eight-year exclusion which the I.G. imposed and directed
against Petitioner is reasonable. Therefore, I sustain
the exclusion.
_________________________
Steven T. Kessel
Administrative Law Judge
* * * Footnotes * * *
1. "State health care program" is defined by section
1128(h) of the Social Security Act to cover three types of
federally-financed health care programs, including Medicaid. I use
the term "Medicaid" hereafter to represent all State health care
programs from which Petitioner was excluded.
2. The parties' exhibits and transcript of the hearing
will be referred to as follows:
I.G.'s Exhibits I.G. Ex. (number)
Petitioner's Exhibits P. Ex. (number)
Transcript Tr. at (page)
3. The "suspension" from the Medicare program authorized
in the statute and found in the regulations prior to the 1987
amendments was intended to be a different action from that
contemplated by 42 C.F.R. 405.371(b). The version of the
regulations in effect prior to the effective date of the 1987
amendments to section 1128 used the term "suspension" as a synonym
for the term "exclusion" in the present statute.
4. I do not mean by this to suggest that a party who
continues to deny his or her guilt after a conviction is without
recourse. That party may appeal the conviction in a court which
has jurisdiction over the matter. If the conviction is overturned
on appeal, then the I.G. may reinstate the excluded party. See 42
C.F.R. 1001.136(a).
5. For the reasons described above, Petitioner was not
harmed by the delay between the date of his conviction and the date
of the imposition of the exclusion. During that period, Petitioner
could have continued to provide services to program beneficiaries
and recipients and claim reimbursement for those services.