SUBJECT:

Farhad Mohebban, M.D.,

Petitioner,

The Inspector General

Petitioner filed a request for review of the I.G.'s action. 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. The I.G. submitted a brief accompanied by four proposed exhibits (I.G. Ex. 1-4). Petitioner submitted a brief with one attachment and one proposed exhibit, which I renumber as Petitioner's proposed exhibit one and proposed exhibit two. (P. Ex. 1 and 2). Petitioner did not object to my receiving into evidence the I.G.'s proposed exhibits, and I receive into evidence I.G. Ex. 1-4. The I.G. did not object to my receiving Petitioner's proposed exhibits into evidence and I receive into evidence P. Ex. 1 and 2.

I affirm the I.G.'s determination to exclude Petitioner from participating in Medicare and other federally-funded health care programs, including Medicaid, for a period of 10 years.

Under section 1128(a)(1) of the Act, the Secretary may exclude from participation in the Medicare and Medicaid programs any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVII, or under any State health care program. Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(1) of the Act shall be for a minimum period of not less than five years, unless specified aggravating or mitigating factors are present which form the basis for lengthening or shortening the period of exclusion. See also 42 C.F.R. § 1001.102(a).

42 C.F.R. § 1001.102(b) provides that the following factors may be considered to be aggravating and a basis for lengthening the period of exclusion: "(1) [t]he acts resulting in the conviction, or similar acts, resulted in financial loss to a government program or to one or more entities of $1500 or more. (The entire amount of financial loss to such programs or entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made); (2) [t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; (3) [t]he acts that resulted in the conviction, or similar acts, had a significant adverse physical, mental or financial impact on one or more program beneficiaries or other individuals; (4) in convictions involving patient abuse or neglect, the action that resulted in the conviction was premeditated, was part of a continuing pattern of behavior, or consisted of non-consensual sex acts; (5) [t]he sentence imposed by the court included incarceration; (6) the convicted individual or entity has a prior criminal, civil or administrative sanction record; (7) the individual or entity has at any time been overpaid a total of $1500 or more by Medicare, Medicaid or any other Federal health care programs as a result of intentional improper billings; (8) the individual or entity has previously been convicted of a criminal offense involving the same or similar circumstances; or (9) whether the individual or entity was convicted of other offenses besides those which formed the basis for the exclusion, or has been the subject of any other adverse action by any Federal, State or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for the exclusion."

42 C.F.R. § 1001.102(c) provides that only the following factors may be considered as mitigating and a basis for reducing the period of exclusion: "(1) [t]he individual or entity was convicted of 3 or fewer misdemeanor offenses, and the entire amount of financial loss to Medicare and the State health care programs due to the acts that resulted in the conviction is less than $1500; (2) [t]he record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional, or physical condition before or during the commission of the offense that reduced the individual's culpability; (3) [t]he individual's or entity's cooperation with Federal or State officials resulted in -- (i) [o]thers being convicted or excluded from Medicare, Medicaid, or all other Federal health care programs, (ii) [a]dditional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or (iii) [t]he imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter."

Petitioner concedes that he was "convicted" as that term is used in the Act of a criminal offense and that his offense relates to the delivery of a health care item or service. He challenges the 10-year exclusion and maintains that a five-year exclusion is proper. In his defense, he notes that the tests which he ordered and which resulted in his receipt of illegal kickbacks were medically necessary and involved only a few instances of such misconduct with small amounts of money paid to him. He also challenges the two specific factors cited by the I.G. to justify a 10-year exclusion. He acknowledges that he received kickbacks for more than a one-year period but asserts that such payments were intermittent, not a pattern of misconduct and not the result of his solicitation of such payments. He also maintains that the I.G. improperly construed his 6-month sentence of home confinement as a sentence involving incarceration within the scope of 42 C.F.R. § 1001.102(b)(5).

Petitioner also contends that, due to his service to the community as a physician, this factor warrants mitigation of the exclusion period.

Finally, Petitioner asserts that the I.G.'s imposition of an exclusion in his case effectively prevents him from practicing as a physician, because neither a health care insurer nor the federal health care programs will reimburse him for his services.

1. During the period of time relevant to this case, Petitioner was licensed to practice medicine in the State of New York. I.G. Ex. 2, at 2.

2. During the period of time relevant to this case, Petitioner conducted a private practice in Queens, New York. I.G. Ex. 2, at 2.

3. In 1998, a Criminal Indictment (Indictment) was filed in the United States District for the Southern District of New York charging Petitioner with one count of knowingly and willfully soliciting and receiving remuneration, to wit direct overt and covert payments of cash kickbacks and bribes from co-conspirators, in return for purchasing, leasing, ordering and arranging for and recommending purchasing leasing and ordering goods, facilities and services, and items for which payment may be made in whole or in part under a Federal health care program, namely the Medicare program (Medicare Kickback Conspiracy) in violation of 18 U.S.C. § 371 and 42 U.S.C. §s 1320a-7b(b)(1) and (2). I.G. Ex. 2, at 3-7.

4. The Indictment also charged Petitioner with three counts of unlawfully, knowingly, and willfully soliciting and receiving remuneration in return for purchasing, leasing, and ordering goods, facilities, services , and items for which payment may be made in whole or in part under a Federal health care program, namely the Medicare program, in violation of 42 U.S.C. § 1320a-7b(b)(1). I.G. Ex. 2, at 7-8.

5. In particular the Indictment alleged that Petitioner, commencing in December 1993 through on or about 1998, referred patients to Ganesh Surgical Supplies and American Open MRI Center Inc. These companies were approved Medicare providers for surgical supplies and MRI testing, for which Petitioner received $6,385 in illegal kickbacks. I.G. Ex. 2, at 7-8.

6. On June 16, 1999, Petitioner pled guilty to all four counts in the Indictment and judgment was entered on that date. I.G. Ex. 3, at 1.

7. As a result of his conviction, Petitioner was: a) sentenced to serve six months of home confinement; b) was placed on probation for two years; c) was ordered to pay a fine of $20,000 and an assessment of $400; and d) ordered to perform 400 hours of community service. I.G. Ex. 3, at 2-6.

8. On September 30, 1999, Petitioner was notified by the I.G. that he was being excluded from participation in the Medicare and Medicaid programs for a 10-year period pursuant to section 1128(a)(1) and section 1128(c)(3)(B) of the Act. I.G. Ex. 1.

9. Under section 1128(a)(1) of the Act, the I.G. is authorized to exclude any individual or entity that has been convicted of a criminal offense related to the delivery of a health care item or service under Medicare or Medicaid.

10. Where the I.G. determines to exclude an individual pursuant to section 1128(a)(1) of the Act, the term of exclusion shall be for a period of five years, in the absence of aggravating or mitigating factors that would support an exclusion of more or less than five years.

11. Petitioner's criminal conviction constitutes a conviction within the scope of sections 1128(i)(1) and (3) of the Act.

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

13. The I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act.

14. The Petitioner did not prove the presence of any mitigating factors authorized by 42 C.F.R. 1001.102(c).

15. The aggravating factors established by the I.G. proved Petitioner to be untrustworthy.

16. The 10-year exclusion of Petitioner is upheld.

DISCUSSION

Petitioner does not challenge that he is subject to exclusion under section 1128(a)(1) of the Act and I so find. Petitioner pled guilty to the charged offenses which constitutes a conviction under section 1128(i)(3) of the Act and the Court entered judgment in Petitioner's case which constitutes a conviction under section 1128(i)(1) 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 a health care item or service under the Medicare/Medicaid program. The record reflects that Petitioner was found guilty of conspiracy to receive Medicare kickbacks and unlawful receipt of Medicare kickbacks. Departmental Appeals Board (DAB) decisions have uniformly upheld section 1128(a)(1) exclusions for convictions of receiving illegal kickbacks or bribes concerning Medicaid or Medicare business. Asadollah Amrollahifar, Ph.D, DAB CR238 (1992); see also Niranjana B. Parikh, M.D., DAB 1334 (1992); Arthur V. Brown, M.D., DAB CR226 (1992); John J. Tolentino, M.D., DAB CR180 (1992). Thus, the receipt of such unlawful remuneration is an offense clearly related to the delivery of an item or service under the Medicare program. Petitioner in his defense asserts that the tests and services ordered for which he received kickbacks were medically necessary, that he did not actively solicit kickbacks, and that his involvement was intermittent. To the extent that by such claims Petitioner seeks to challenge the validity of his criminal conviction in the present exclusion proceeding, I have no authority to consider such collateral attack on the criminal conviction. Paul R. Scollo, D.P.M., DAB 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter Edmondson, DAB 1330 (1992).

Petitioner has argued in his brief that his 10-year exclusion should be reduced due to the presence of one or more mitigating factors. It is Petitioner's burden to prove the existence of mitigating factors. James H. Holmes, DAB CR270 (1993). Petitioner has not established any of the mitigating factors listed at 42 C.F.R § 1001.102(c). He claims that his involvement in the scheme was intermittent and that he did not actively solicit kickbacks, but such claims of mitigation are not within the scope of the regulations. Similarly, his claim that he has performed community service and his services as a physician are needed in the community are not factors of mitigation within the scope of 42 C.F.R. § 1001.102(c). As Petitioner has the burden concerning mitigating factors, I find that he has not met such burden and conclude that Petitioner has not proved the existence of any mitigating factors.

In determining whether the length of an exclusion is reasonable, it is the responsibility of the administrative law judge to consider and evaluate all of the relevant evidence brought to bear in this case. 42 C.F.R. § 1001.102(b) sets forth the aggravating factors which may be considered in determining the length of an exclusion. I find that the I.G. proved the presence of two aggravating factors. The two aggravating factors consist of the following:

• The acts that resulted in Petitioner's conviction, or similar acts, were committed by Petitioner over a period of one year or more. 42 C.F.R. § 1001.102(b)(2). The Indictment reflects that the acts occurred between December 1993 and 1997. I.G. Ex. 2. Petitioner disputes the time period in question claiming that his involvement was intermittent and infrequent. But the facts set forth in the Indictment, to which Petitioner pled guilty, may be considered in this exclusion proceeding. See Norman C. Barber, DAB CR123 (1991). Moreover, Petitioner may not use these proceedings to challenge the facts relating to his criminal conviction. See Paul R. Scollo, D.P.M., supra; Ernest Valle, supra; Peter Edmondson, supra. In this case, the aggravating factors established by the I.G. prove that Petitioner's his involvement in the scheme to defraud Medicare was recurrent and deliberate, not random or impulsive. I therefore find that the 10-year exclusion is proper.



• The sentence imposed by the court included incarceration. 42 C.F.R. § 1001.102(b)(5). The judgment and sentencing document reflects that Petitioner was sentenced to six months of home confinement. I.G. Ex.3, at 2. The regulations however clearly state that the term "incarceration means imprisonment or any type of confinement with or without supervised release, including, but not limited to, community confinement, house arrest and home detention." 42 C.F.R. § 1001.2. Petitioner argues that under the definitions of the Federal Sentencing Guidelines, home detention is not imprisonment. The exclusion regulations clearly state however that home detention constitutes incarceration for the purposes of those regulations and I am bound by those regulations. On such facts, I consider this factor in my analysis.

Upon consideration of the evidence presented, I find that Petitioner has not presented sufficient evidence to support the claim of the existence of mitigating factors. Moreover, I find that the I.G.'s evidence of aggravating factors makes the imposition of the 10-year exclusion reasonable and proper. I note that in evaluating these factors, it is not the mere presence of a greater number of aggravating factors which forms the basis for my decision. As the Appellate panel has previously held in Barry D. Garfinkel, M.D., DAB 1572 (1996), it is the quality of the circumstances, whether aggravating or mitigating, which is to be dispositive in analyzing evidence of these factors. See Garfinkel, at 31.

Finally, Petitioner contends that, by his exclusion from participation in the Medicare and Medicaid programs, he is effectively deprived of his livelihood as he cannot be employed in the medical field during the period of exclusion. However, such argument has been previously rejected. See Arlene Elizabeth Hunter, R.N., DAB CR505 (1997).

I conclude that the I.G. was authorized to exclude Petitioner, pursuant to section 1128(a)(1) of the Act. I find that, based upon the evidence presented, the 10-year exclusion is proper and I sustain it.

Joseph K. Riotto

Administrative Law Judge

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