CASE | DECISION | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Tarvinder Singh, D.D.S.,

Petitioner,

DATE: September 8, 2000
                                          
             - v -

 

The Inspector General

 

Docket No.C-00-342
Decision No. CR697
DECISION
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By letter dated January 31, 2000, the Inspector General (I.G.), United States Department of Health and Human Services, notified Tarvinder Singh, D.D.S., (Petitioner), that he would be excluded for a period of 10 years from participation in Medicare, Medicaid, Maternal and Child Health Services Block Grant and Block Grants to States for Social Services programs.(1) The I.G. imposed this exclusion pursuant to section 1128(a)(1) of the Social Security Act (Act), based on Petitioner's conviction in the Superior Court of the State of California for 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. 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) and a reply brief. Petitioner submitted a brief with eight proposed exhibits. (P. Ex. 1-8). Petitioner did not object to my receiving into evidence the I.G.'s proposed exhibits, and I receive into evidence I.G. exhibits 1-4. The I.G. did not object to my receiving Petitioner's proposed exhibits into evidence. I therefore accept Petitioner's exhibits 1-8 into evidence.

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 ten years.

APPLICABLE LAW

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 period of not less than five years. 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 minimum 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) [i]n convictions involving patient abuse or neglect, the action that resulted in the conviction was premeditated, was part of a continuing pattern or behavior, or consisted of non-consensual sex acts; (5) [t]he sentence imposed by the court included incarceration; (6) [t]he convicted individual or entity has a prior criminal, civil or administrative sanction record; (7) [t]he 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 improper billings; (8) [t]he individual or entity has previously been convicted of a criminal offense involving the same or similar circumstances; or (9) [w]hether 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'S CONTENTIONS

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 statutory basis of the 10-year exclusion. He asserts that his offense is a misdemeanor conviction and that he is properly excluded under the permissive exclusion of 42 U.S.C.§ 1320a-7(b) rather than the authority used by the I.G., 42 U.S.C. § 1320a-7(a). Under this statute, he maintains that a three-year exclusion is proper.

Petitioner also contends that the I.G. improperly based the exclusion period on an incorrect reading of the facts in his case. He maintains that the acts resulting in his conviction occurred within a one-year period, not a period in excess of one-year as the I.G. noted. He also asserts that the I.G. found that the financial loss due to his criminal conviction was $35,784 when in fact he was ordered to pay only $12,000 in restitution.

Petitioner also cites factors in his case which he maintains warrants mitigation of the exclusion period. He cites the absence in his case of the other aggravating factors specified in the regulations. In particular he states that his criminal acts had no adverse physical or mental impact on a program beneficiary, that he has no prior administrative or criminal sanction record, that he was not sentenced to a period of incarceration, and that he promptly paid his fine, cooperated with authorities in the investigation of his case, and accepted responsibility by pleading guilty.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. During the period of time relevant to this case, Petitioner was licensed to practice dentistry in the State of California and was enrolled as a provider in the California Medicaid Program. I.G. Ex. 2.

2. On January 25, 1999, in the Sacramento Superior Court of the State of California, a grand jury indictment, Indictment Number 99f00572, was issued charging Petitioner with one count of violation of California Penal Code section 550(a)(7) in that he wilfully, unlawfully, and knowingly presented and caused to be presented between March 1, 1997 and July 16, 1998 a false and fraudulent claim for payment of money for dental care benefits; and with one count of grand theft in violation of California Penal Code section 487(a) based on the same facts. I.G. Ex. 3.

3. Specifically, the investigation which led to the criminal indictment revealed that Petitioner on multiple occasions between March 1, 1997 and July 16, 1998 billed Denti-Cal for dental procedures which in fact were not performed. I.G. Ex. 2.

4. On April 7, 1999, Petitioner pled guilty to count two of the Indictment, a felony, in violation of California Penal Code section 487 and on that date the California court accepted Petitioner's guilty plea. I.G. Ex. 4.

5. As a result of his conviction, Petitioner was sentenced to serve 120 days in the county jail, suspended; was placed on probation for three years; was ordered to pay $12,000 in restitution to the Health Care Deposit Fund and $35,784 to Denti-Cal; was ordered to withdraw from any and all Medi-Cal, Denti-Cal, government-sponsored Delta-Dental programs and Medicaid programs within 120 days of entry of the plea; and was ordered not to derive by any means directly or indirectly remuneration or any form of compensation from any Medi-Cal, Denti-Cal, government-sponsored Delta-Dental programs. I.G. Ex. 4.

6. On January 31, 2000, 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 sections 1128(a)(1) and 1128(c)(3)(B) of the Act. I.G. Ex. 1.

7. 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.

8. Where the I.G. determines to exclude an individual pursuant to section 1128(a)(1) of the Act, the term of exclusion will be for a minimum period of five years. A finding of aggravating factors may support an exclusion of more than five years. A finding of mitigating factors may result in a reduction of the exclusion period, but in any case no less than the minimum period of five years.

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

10. Petitioner's conviction for a felony 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.

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

12. Petitioner did not prove the presence of any mitigating factors.

13. The I.G. established the existence of aggravating factors under 42 C.F.R. §§ 1001.102(b)(1) and (2).

14. The aggravating factors established by the I.G. prove Petitioner to be untrustworthy.

15. A 10-year exclusion of Petitioner is not unreasonable.

DISCUSSION

Petitioner challenges that he is subject to exclusion under section 1128(a)(1) of the Act and maintains instead that as his criminal conviction was a misdemeanor, he is more properly subject to a three-year permissive exclusion. I disagree. It is irrelevant that Petitioner's conviction was for a misdemeanor for the statute makes no distinction between degrees of criminal offenses. Brenda J. Motley, DAB CR414 (1996). The I.G. has no discretion to impose a permissive exclusion when the threshold provisions of section 1128(a) exclusion have been fulfilled, even when the conduct can be fairly characterized under either permissive or mandatory exclusion provisions. Jack W.Greene, DAB No. 1078 (1989), aff'd Greene v. Sullivan, 731 F.Supp. 835 (E.D. Tenn. 1990). I therefore find that the I.G. has authority to proceed under section 1128(a)(1) of the Act.

I further find that the I.G. has demonstrated that Petitioner is subject to exclusion under section 1128(a)(1) of the act. Petitioner pled guilty to a felony which constitutes a conviction under section 1128(a)(3) of the Act and the Court entered judgment in Petitioner's case which constitutes a conviction under section 1128(a)(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 a felony in that he filed or caused to be filed fraudulent claims for dental services with Medicaid. The filing of fraudulent Medicaid claims has been held to constitute clear program-related misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996).

Petitioner has argued in his brief that his 10-year exclusion should be reduced due to the presence of 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). The Petitioner claims that there are no other aggravating factors in his case other than those cited by the I.G. and that he cooperated with prosecuting officials investigating his case and that he promptly accepted responsibility and paid his fines. Such claims are not mitigating factors within the scope of the regulations. 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. The regulation at 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: (1) 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); (2) the acts resulting in Petitioner's conviction or similar acts, caused financial loss of $1,500 or more to a governmental program or to one or more entities.

Petitioner contends that the I.G. improperly determined that his offenses were committed over a period of one year or more. Count Two of the Indictment, for which Petitioner was convicted, reflects that the acts occurred from March 1, 1997 through July 16, 1998. (See Indictment, I.G. Ex. 3.) The facts stated in the Indictment to which Petitioner pled guilty may be considered in this exclusion proceeding. See Norman C. Barber, DAB CR123 (1991).

Petitioner further argues that his conviction did not result in a loss of $1,500 or more to a governmental program. A fair estimate of the amount of damages caused by Petitioner may be found in the restitution that he was sentenced to pay. Gilbert Ross, DAB CR478 (1997): see also Steven Alonso Henry, M.D., DAB CR638 (2000). As established by the $12,000 restitution order, Petitioner's criminal acts resulted in substantial loss to the Denti-Cal program. Petitioner asserts that the I.G. incorrectly relied on the amount $35,784 specified in the judgment which he agreed to pay as deductions from weekly payments made to him by Denti-Cal. Petitioner admits that this order effectively required him to provide free services to Denti-Cal recipients. I find that this is the nature of restitution to the program which Petitioner defrauded and can be considered along with the $12,000 payment specifically denominated as restitution.

Considering Petitioner's evidence of mitigation and the I.G.'s evidence of aggravating factors, I find that the aggravating factors in Petitioner's case make the imposition of a 10-year exclusion reasonable. 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 here. As the appellate panel has previously held in Barry D. Garfinkel, M.D., DAB No. 1572 (1996), it is the quality of the circumstances, whether aggravating or mitigating, which is to be dispositive in analyzing evidence of these factors. Garfinkel, at 31.

In this case, the aggravating factors established by the I.G. prove Petitioner to be an untrustworthy individual. Petitioner's lack of trustworthiness is established by his actions in defrauding Medicaid on multiple occasions over a 15-month period resulting in a substantial financial loss to that program. His fraud was recurrent and deliberate, not random and impulsive. I note also that the losses in Petitioner's case were multiple times the regulatory minimum. In this regard I find that even considering alone the $12,000 restitution payment (without consideration of the $35,784 amount cited by the I.G.), a 10-year exclusion is not unreasonable.

CONCLUSION

I conclude that the I.G. was authorized to exclude Petitioner, pursuant to section 1128(a)(1) of the Act. I find that a 10-year exclusion is not unreasonable.


 

JUDGE
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Joseph K. Riotto
Administrative Law Judge

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

CASE | DECISION | JUDGE | FOOTNOTES