SUBJECT:

Jitrenda C. Shah, M.D.,

Petitioner,

The Inspector General

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

• Background
  

By letter dated April 28, 2000, the I.G. notified Jitrendra C. Shah, M.D. (Petitioner), that he would be excluded for a period of 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. imposed this exclusion pursuant to section 1128(a)(1) of the Social Security Act (Act), based on Petitioner's conviction in the United Stated District Court for the Southern District of New York of a criminal offense related to the delivery of an item or service under the Medicare 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 or 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 response accompanied by three proposed exhibits, which I have renumbered as Petitioner's proposed exhibits one through three (P. Ex. 1-3). 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 into evidence Petitioner's proposed exhibits, and I receive into evidence P. Ex. 1-3.

• 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 XVIII 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 five years, unless specific 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.

III. Petitioner's Contentions

Petitioner concedes that he was "convicted," as that term is used in the Act, of a criminal offense. However, Petitioner asserts that his criminal conviction was not related to the delivery of a health care item or service. He maintains that his receipt of kickbacks was passive and was incidental to the durable medical equipment provider's delivery of health care services. He also maintains that he should be subject to a permissive exclusion under section 1128(b) rather than to a mandatory exclusion under section 1128(a)(1) of the Act.

Finally, Petitioner maintains that his exclusion should be for a period of less than five years. In support of his assertions, Petitioner cited the comments of the sentencing judge, who noted that Petitioner did not initiate or solicit the kickback scheme and that such scheme did not result in significant financial gain to him. Petitioner also submitted letters of support from patients and colleagues who attest to his skill and care as a physician and his good character. Petitioner notes that there was no loss to Medicare or Medicaid and that his case did not involve any unnecessary test or unsatisfactory or substandard medical treatment.

IV. Findings of Fact and Conclusions of Law

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. 3 at 2.

2. During the period of time relevant to this case, Petitioner conducted a private practice of medicine in Brooklyn, New York. I.G. Ex. 3 at 2.

3. On February 23, 1999, a Criminal Information was filed in the United States District Court for the Southern District of New York. The Information charged Petitioner with one count of "Medicare Kickback Scheme," in violation of 42 U.S.C. § 1320a-7b(b)(1), alleging that Petitioner knowingly and willfully, directly and indirectly, overtly and covertly solicited and received remuneration, including kickbacks, bribes and rebates, in cash and in kind, in return for referring Medicare patients to various Medicare providers, including Ganesh Surgical Supplies, Inc., a supplier of durable medical equipment, for the furnishing of items and services for which payment would be made under Medicare. I.G. Ex. 3.

4. On December 16, 1999, Petitioner pled guilty to count one in the Information and judgment was entered on that date. I.G. Ex. 4.

5. As a result of his conviction Petitioner: was sentenced to three years of supervised probation; was ordered to pay a special assessment of $100 and a fine of $20,000; and was ordered to perform 100 hours of community service for each year of probation. I.G. Ex. 4.

6. On April 28, 2000, Petitioner was notified by the I.G. that he was being excluded from participation in the Medicare and Medicaid programs for a five-year period, pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the Act.

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 period of five years, in the absence of aggravating or mitigating factors that would support an exclusion of more or less than five years. Act, section 1128(c)(3)(B).

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

10. Petitioner's conviction for "Medicare Kickback Scheme" 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 sections 1128(a)(1) and 1128(c)(3)(B) of the Act.

V. 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 offense, which constitutes a conviction under section 1128(i)(3) of the Act. The Court entered judgment in Petitioner's case, which constitutes a conviction under section 1128(i)(1) of the Act.

It is also required under section 1128(a)(1) that the crime at issue be related to the delivery of a health care item or service under the Medicare/Medicaid programs. The record reflects that Petitioner was found guilty of "Medicare Kickback Scheme." Departmental Appeal Board (DAB) decisions have uniformly upheld section 1128(a)(1) exclusions for convictions of receiving illegal kickbacks or bribes concerning Medicare or Medicaid. Farhad Mohebban, M.D., DAB CR686 (2000); Asadollah Amrollahifar, Ph.D., DAB CR238 (1992); see also Niranjana B. Parikh, M.D., DAB No. 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 or Medicaid programs. Petitioner, in his defense, asserted that: the tests and services that he ordered, for which he received kickbacks, were medically necessary; that he did not actively solicit kickbacks; and that his involvement was minimal. 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 No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter J. Edmonson, DAB No. 1330 (1992).

Petitioner has argued in his brief that his five-year exclusion should be reduced due to the presence of mitigating factors and that he should be subject to permissive rather than mandatory exclusion. I find no merit in such claims. Once a person has been convicted of a program-related offense, exclusion is mandatory. See Muhammad R. Chaudhry, DAB CR326 (1994). The fraud and abuse provisions of section 1128(a) of the Act unequivocally direct a mandatory exclusion period of five years for program-related convictions. See Act, section 1128(c)(3)(B). Where the I.G. has excluded an individual under section 1128(a)(1) of the Act, the period of exclusion will be for a minimum period of five years. 42 C.F.R. § 1001.102(a).

The I.G. has no discretion to impose a permissive exclusion when the threshold provisions for exclusion pursuant to section 1128(a)(1) have been fulfilled, even if the conduct can be fairly characterized under either the permissive or mandatory exclusion provisions. Jack W. Greene, DAB No. 1078 (1989), aff'd sub nom. Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990). Therefore, the fact that a petitioner's conduct might also satisfy the permissive provisions of section 1128(b) is irrelevant. Brenda J. Motley, DAB CR414 (1996).

In this case, Petitioner was convicted of a program-related criminal offense and the I.G. did not rely on aggravating factors in imposing her exclusion of Petitioner under section 1128(a)(1) of the Act. Therefore, Petitioner is subject to the mandatory minimum period of exclusion of five years.

VI. Conclusion

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

Joseph K. Riotto

Administrative Law Judge

1. In this decision, I use the term "Medicaid" to refer to all health care programs other than Medicare.