SUBJECT:

Sean M. Maguire, M.D.,

Petitioner,

The Inspector General

DECISION

I sustain the Inspector General's (I.G.) determination to exclude Sean M. Maguire, M.D. (Petitioner), from participating in the Medicare, Medicaid, and all federal health care programs (Medicare and Medicaid), as defined in section 1128B(f) of the Social Security Act (Act), for a period of five years.

I. BACKGROUND

By letter dated January 31, 2001 (notice), the I.G. notified Petitioner that he was being excluded from participation in Medicare and Medicaid for a mandatory minimum period of five years. In that notice, the I.G. explained that she was authorized to exclude him, under section 1128(a)(4) of the Act, based on his conviction in the Sixteenth Judicial Circuit, Kenton Circuit Court, Third Division, Commonwealth of Kentucky, of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. The I.G. also advised Petitioner that the exclusion would be effective 20 days from the date of the notice.

By letter dated April 6, 2001, Petitioner requested a hearing. The case was assigned to me for hearing and decision. During a May 23, 2001 prehearing conference, the parties agreed to have the case decided on written submissions in lieu of an in-person hearing. The I.G. submitted a motion for summary judgment and brief in support (I.G. Br.). Petitioner submitted a response (P. Br.) to the I.G.'s motion, and the I.G. submitted a reply (I.G. Reply Br.) to Petitioner's response. The I.G. filed seven exhibits (I.G. Exs.1 - 7) as part of her submission, and Petitioner filed three exhibits (P. Exs. 1 - 3). In the absence of objection, I receive into evidence I.G. Exs. 1 - 7 and P. Exs. 1 - 3.

II. ISSUE

Once an individual has been excluded under section 1128(a)(4) of the Act from participation in the Medicare and Medicaid programs for the minimum mandatory exclusion period of five years, the only issue I must decide is whether a basis for the exclusion exists.

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

I make the following findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail and address Petitioner's arguments.

1. The I.G. was authorized to exclude Petitioner from participation in Medicare and Medicaid for a period of five years pursuant to sections 1128(a)(4) and 1128(c)(3)(B) of the Act.

Section 1128(a)(4) of the Act requires the exclusion of individuals convicted after August 21, 1996, under federal or State law, of a criminal offense consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. The law not only mandates exclusions of individuals convicted of this type of offense, it requires that the term of such exclusions be for at least five years pursuant to section 1128(c)(3)(B) of the Act.

The record reflects that on December 29, 1998, Petitioner was indicted and charged with three felony counts of obtaining a controlled substance by fraud in violation of Ky. Rev. Stat. Ann § 218.140(1). I.G. Ex. 3. Specifically, on three occasions (April 24, 1998, May 13, 1998, and May 28, 1998), Petitioner wrote prescriptions for Percocet, a schedule II narcotic, to Jason Roberts, a fictitious patient. I.G. Ex. 4. Petitioner, posing as Mr. Roberts, then filled each Percocet prescription and diverted the controlled substance for his personal use. Id. On January 19, 1999, Petitioner pled guilty to all three felony counts alleged in the indictment. I.G. Ex. 5. On January 22, 1999, judgment was entered against Petitioner, based on his guilty plea. Id.

Petitioners's conviction, based on his guilty plea, and the Court's acceptance of that plea, constitute a conviction under section 1128(i)(3) of the Act. Accordingly, Petitioner was convicted of an offense within the meaning of section 1128(a)(4) of the Act, and the facts underlying his conviction require the I.G. to exclude Petitioner from participation in Medicare and Medicaid. The minimum period of exclusion under section 1128(a)(4) is five years. Act, section 1128(c)(3)(B). In addition, Petitioner concedes that he was convicted of three felony offenses within the meaning of section 1128(a)(4) of the Act, and that the five-year exclusion imposed by the Secretary is mandatory by law. P. Br. at 1, 3, 5. Therefore, no issue regarding reasonableness of the length of the exclusion exists.

Although Petitioner does not challenge his conviction or the mandatory five-year exclusion imposed by the Secretary (P. Br. at 1, 3, 5), Petitioner alleges that due to a lack of "reasonable notice" I should change the date his exclusion became effective. Petitioner argues that the exclusion should be found to be effective as of "April, 2001," the date Petitioner received "actual notice," rather than February 20, 2001, so that an additional month of claimed services can be paid. P. Br. at 3.

2. An administrative law judge is without authority to change the effective date of an exclusion imposed by the I.G.

The Act imposes on the I.G. the duty to provide an excluded individual with "reasonable notice" of an exclusion. Act, section 1128(f). Further, a notice of exclusion that is mailed to an excluded individual's address is presumed to have been received by that individual within five days from the date of mailing, unless the excluded individual makes a reasonable showing to the contrary. 42 C.F.R. § 1005.2(c).

The duty to provide an individual with reasonable notice of an exclusion is not a duty to serve that individual personally with the notice of exclusion. It is a duty to take reasonable steps to assure that the notice is delivered to the excluded individual. That duty is discharged by sending the notice in the United States Mail to the excluded individual's mailing address. See Sunil R. Lahiri, M.D., DAB CR296, at 16 (1993); Charles K. Angelo, Jr., M.D., DAB CR290, at 13 (1993); see also, Louis W. DeInnocentes, Jr., M.D., DAB CR247, at 36 - 40 (1992).

In opting to require the I.G. to provide an excluded individual with reasonable notice of his or her exclusion, Congress made a policy decision that it would be inappropriate to impose on the I.G. the more demanding burden of obtaining personal service on the excluded individual. The overriding purpose of the exclusion law is to protect federally funded health care programs and their beneficiaries and recipients from untrustworthy individuals. It might frustrate the purpose of the law to impose a personal service requirement on the I.G., because, in some cases, individuals could avoid an exclusion by evading personal service or by being unavailable to be served. Lahiri, DAB CR296, at 17; DeInnocentes, DAB CR247, at 38 - 39; Julio M. Soto, M.D., DAB CR418, at 4.

On January 31, 2001, the I.G. mailed Petitioner notice that he was being excluded from Medicare and Medicaid for a period of five years pursuant to section 1128 (a)(4) of the Act. The I.G.'s notice was mailed to Petitioner's last known address at 3550 Stonecreek Drive, Cincinnati, Ohio. See I.G. Reply Br. at 5; see also I.G. Exs. 1, 6, 7. Petitioner argues that he had not lived at the address to which the notice had been mailed since May, 1999. Petitioner asserts in his brief that in May, 1999 "following his plea of guilty [he] moved to Louisville, Kentucky, where he taught at the University of Kentucky Medical School for approximately one year," until May, 2000. P. Ex. 1.

In May, 2000, after reinstatement of his medical license, Petitioner moved to Madisonville, Kentucky, to begin work with the Trover Foundation. P. Ex. 2. The Trover Foundation is a rural health care system in Western Kentucky with a significant population of Medicare and Medicaid recipients. Petitioner argues that he did not receive actual notice of his exclusion until early "April, 2001, [when] the Trover Foundation received denial of numerous claims for payment by Medicare and Medicaid." P. Br. at 2. Petitioner further argues that "this was the first time [he] or his employer had any reason to know of the exclusion." Id.

Generally, delivery of a notice to an excluded individual's address is all but conclusive evidence that the individual received the notice. Soto, DAB CR418, at 3. Conceivably though, there might be a circumstance where an excluded individual proves that he or she did not receive notice, despite its having been delivered to his or her address. See Mira Tomasevic, M.D., DAB CR17 (1989). In Tomasevic, the petitioner satisfactorily rebutted the presumption of receipt by showing that she did not reside at the address where the notice was mailed and, in fact, was no longer living in the United States. The burden to rebut the heavy presumption of receipt rests on the excluded individual. Soto, DAB CR418, at 4.

I find that Petitioner has rebutted the presumption of having received notice within five days of mailing. In the instant matter, Petitioner has made a reasonable showing that he did not receive the I.G.'s notice within five days of it being mailed. Petitioner asserts, plausibly, that he has not lived at the address to which the notice had been mailed for the last two years. Petitioner submitted a telephone bill, a utility bill, a pay check stub, and other correspondence as evidence that he has been living in either Louisville, or Madisonville, Kentucky, since his conviction in May, 1999. P. Ex. 1, 2.

I am, however, unable to give Petitioner the equitable relief he seeks -- a change in the effective date of his exclusion. Petitioner's failure to receive timely notice has not resulted in any denial of procedural due process. Moreover, I have no authority to change or amend the effective date of the notice on that basis. Generally, the purpose of rebutting the presumption of having received notice is to preserve one's right to a hearing. Tomasevic, DAB CR17 (1989). Regulations which govern hearings involving the I.G. provide that the affected party must request a hearing within 60 days of that party's receipt from the I.G. of a notice of adverse action. 42 C.F.R. § 1005.2(c)(2). In the instant matter, Petitioner filed his request for a hearing on April 6, 2001, 65 days after the I.G. mailed the notice of exclusion to Petitioner (allowing five days for mailing). Therefore, Petitioner's right to a hearing was preserved.

It is well-settled that an administrative law judge is without authority to change the effective date of an exclusion. See Kathleen E. Talbot, M.D., DAB CR724 (2000); see also Ronald J. Crisp, M.D., DAB CR772 (2001); Joseph Picciotto, D.P.M., DAB CR769 (2001); Alfredo Rodriguez-Machado, DAB CR706 (2000) and cases cited therein. As a matter of law, an exclusion becomes effective 20 days from the date of the I.G.'s notice of exclusion. 42 C.F.R. § 1001.2002. While it is unfortunate that the I.G. mailed the Petitioner's exclusion notice to an address where he had not lived for the last two years, the regulations require only that the notice be mailed to the last known address. Crisp, DAB CR772; Soto, DAB CR414. Further, an administrative law judge has no authority to alter the date of the imposition of the exclusion retroactively. Samuel W. Chang, M.D., DAB No. 1198 (1990); Kathleen Talbot, DAB CR724 (2000); James Snow, DAB CR760 (2001). Thus, I do not have the authority to grant the equitable relief sought by Petitioner.

IV. CONCLUSION

In the instant case, the I.G. has imposed a five-year minimum mandatory exclusion. Petitioner does not challenge the mandatory exclusion. I find that a basis for the exclusion does exist and that the length of the exclusion is reasonable as a matter of law. Moreover, it is well-settled that an administrative law judge is without authority to change the effective date of an exclusion.

For the reasons set forth above, I conclude that the I.G. was authorized, under section 1128(a)(4) of the Act, to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. In addition, I am without authority to change the effective date of the exclusion. Accordingly, I must sustain the exclusion as imposed by the I.G.

Marion T. Silva

Chief Administrative Law Judge