SUBJECT:

Lloyd G. Bayme, M.D.,

Petitioner,

The Inspector General

DECISION

This case is before me on the Inspector General's (I.G.) motion for summary judgment. The parties have submitted briefs and exhibits in support of their positions, and I have reviewed their pleadings carefully. Having done so, I find no material facts in dispute and conclude that the I.G.'s position is correct as a matter of law. Accordingly, I grant the I.G.'s motion for summary judgment and sustain the I.G.'s determination to exclude the Petitioner Lloyd G. Bayme, M.D. (Petitioner), from participating in Medicare, Medicaid, and all other federal health care programs for a period of 10 years.

By letter dated January 31, 2001, the I.G. of the United States Department of Health and Human Services notified Petitioner that he was to be excluded, for a period of 10 years, from participation in the Medicare, Medicaid, and all other federal health care programs as required by section 1128(a)(4) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(a). The basis for the I.G.'s action was Petitioner's 1999 conviction in the Supreme Court of the State of New York, County of Kings, of having violated State statutes forbidding the criminal sale of a prescription for a controlled substance and forbidding the act of conspiring to do so. Both crimes were felonies.

The statute under which the I.G. proceeded establishes a five-year minimum mandatory exclusion of persons or entities convicted of such violations but also provides that the I.G. may enlarge the term of exclusion for an additional period if certain aggravating factors are shown to be present. In this case, the I.G. asserts that the presence of two aggravating factors warrants the addition of five additional years to the period of exclusion, and thus has determined that Petitioner should be excluded from all federal health care programs for 10 years.

By his letter of March 6, 2001, Petitioner timely sought review of the I.G.'s determination. The sufficiency of Petitioner's hearing request has not been directly challenged, and no other jurisdictional issues have been raised or become apparent to me. At the time he filed his hearing request, and at all subsequent times, Petitioner has appeared pro se.

I held a prehearing telephone conference in this case on June 6, 2001, during which conference I reminded Petitioner of his right to retain counsel in these proceedings. I directed the parties to submit their respective positions on whether I had the jurisdiction to modify or otherwise alter the exclusion in the manner sought by Petitioner. The I.G. filed a motion for summary judgment, accompanied by a brief and exhibits. Because Petitioner failed to submit anything by the deadline, I issued an Order to Show Cause. After receiving Petitioner's response to the Order to Show Cause, I established further briefing deadlines. The period for filing pleadings has now closed.

I admit I.G. Exhibits (Exs.) 1 - 6 into evidence. Petitioner has tendered his exhibits in a somewhat confusing form inconsistent with practice in this forum, but I have admitted them as Petitioner's Exhibits (P. Exs.) 1 - 11 after renumbering them according to the attached Appendix.

Because I believe that the I.G.'s motion for summary judgment is supported by the settled facts and well-established law, I grant the Motion, and thereby sustain the I.G.'s determination to exclude Petitioner from participation in all Medicare, Medicaid, and other federal health care programs for a period of 10 years. I shall set forth my reasons for doing so, together with the findings of fact and conclusions of law on which I rest my decision, in detail below.

ISSUES

The legal issues before me in this case are limited to two. They are:

1. Whether Petitioner's conviction authorizes the I.G. to exclude Petitioner from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(4) of the Act; and

2. Whether aggravating factors are present which operate to make the I.G.'s extension of the exclusion to 10 years reasonable.

CONTROLLING STATUTES AND REGULATIONS

Section 1128(a)(4) of the Act requires the exclusion of any individual or entity 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 or entities 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 Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court." Act, section 1128(i)(1). This definition is repeated at 42 C.F.R. § 1001.2.

The minimum mandatory five-year exclusion period is subject to enlargement: 42 C.F.R. § 1001.102 allows the I.G. to extend the five-year period if certain aggravating factors are demonstrated. If the I.G. proposes to rely on any of the specified aggravating factors to seek an enlargement of the exclusionary period, then the subject of the proposed exclusion is permitted to assert the presence of certain mitigating factors and thereby to seek to limit the exclusion to the five-year mandatory minimum. Those aggravating and mitigating factors are set out in detail at 42 C.F.R. § 1001.102(b)(1) - (9) and (c)(1) - (3). The two aggravating factors relied on by the I.G. in this case are:

(1) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more (42 C.F.R. § 1001.102(b)(2)); and

(2) 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 imposition of the exclusion (42 C.F.R. § 1001.102(b)(9)).

The I.G.'s invoking of these aggravating factors allows Petitioner to assert, if he chooses to do so, certain factors that might support mitigation of the extended exclusion. As I have noted above, those potentially mitigating factors are precisely defined at 42 C.F.R. § 1001.102(c)(1) - (3), but none of them has been asserted specifically by Petitioner in these proceedings.

That is not to say that Petitioner has declined to argue the presence of ameliorating circumstances. Petitioner has provided substantial evidence of his personal history, his character, and his reputation in his community. He has vigorously protested his exclusion. But the bases on which his position rests do not amount to mitigating factors as defined by the regulation. Even allowing some latitude to Petitioner's contentions given his pro se status, his arguments are unavailing.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find and conclude as follows:

1. On his pleas of guilty on April 30, 1999 in the Supreme Court of the State of New York, County of Kings, Petitioner Lloyd G. Bayme was convicted of two felonies: conspiracy to write and sell prescriptions that were to be sold illegally and the illegal sale of a prescription for a controlled substance. I.G. Ex. 3.

2. Judgment of conviction and sentence were imposed on Petitioner in the Supreme Court on June 18, 1999. I.G. Exs. 4, 5.

3. The pleas, judgment of conviction, and sentence described above constitute a "conviction" within the meaning of sections 1128(a)(4) and 1128(i)(1) of the Act, and 42 C.F.R. § 1001.2.

4. By reason of his conviction, Petitioner was subject to, and the I.G. was authorized to impose, a period of exclusion from Medicare, Medicaid, and all other federal health care programs of not less than five years. Act, section 1128(c)(3)(B).

5. On January 31, 2001, the I.G. notified Petitioner that he was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of 10 years, based on the presence of two aggravating factors set out in 42 C.F.R. § 1001.102(b)(2) and (9). I.G. Ex. 1.

6. On March 6, 2001, Petitioner perfected his appeal from the I.G.'s action by filing a timely hearing request.

7. During the proceedings at which his guilty pleas were offered, and while under oath, Petitioner admitted that the term of the conspiracy to which he pleaded guilty was from May 1, 1994 until some time in 1996. I.G. Ex. 3, at 7.

8. Because the conspiracy to which Petitioner pleaded guilty was committed over a period of one year or more, the aggravating factor set out in 42 C.F.R. § 1001.102(b)(2) is present.

9. Petitioner has been the subject of an adverse action by the medical licensing authority of the State of New York as a consequence of the same set of circumstances leading to his conviction described above. I.G. Ex. 4, at 17 - 18; I.G. Ex. 6, at 1.

10. Because Petitioner has been the subject of an adverse action by the State medical licensing authority based on the same set of circumstances that served as the basis for the conviction and exclusion described above, the aggravating factor set out in 42 C.F.R. § 1001.102(b)(9) is present.

11. None of the mitigating factors set out in 42 C.F.R. § 1001.102(c)(1) - (3) are present.

12. The I.G.'s exclusion of Petitioner for a period of 10 years is supported by fact and law and is reasonable as a matter of law. I.G. Exs. 1 - 6; Findings and Conclusions 1 - 11, supra.

13. There are no remaining disputed issues of material fact and summary judgment is therefore appropriate in this matter.

DISCUSSION

As I have noted above, there are two issues before me in this case: first, whether the I.G. is authorized to exclude Petitioner from Medicare, Medicaid, and all other federal health care programs because of his conviction; and second, whether the two aggravating factors defined by regulation are present and support the I.G.'s enlargement of the period of Petitioner's exclusion. As to the first issue, there is no serious debate.

The I.G.'s exhibits demonstrate that Petitioner, acting with the advice and assistance of counsel, pleaded guilty to two felonies related to the illegal sale of prescriptions for controlled substances (I.G. Ex. 3). The first felony was criminal conspiracy: Petitioner admitted that he had conspired with another defendant to write and sell prescriptions to be sold illegally, and that on or about January 19, 1996, Petitioner wrote such an illegal prescription for Percocet (I.G. Ex. 3, at 7). Petitioner explicitly admitted that the term of the conspiracy began on May 1, 1994. (I.G. Ex. 3, at 7). The second felony was the criminal sale of a prescription for a controlled substance: Petitioner admitted that while acting as a licensed physician sometime between January 19, 1996 and February 7, 1996, he knowingly and in other than good faith sold a prescription for the controlled substance Percocet (I.G. Ex. 3, at 8). Petitioner's guilty pleas were accepted provisionally when they were entered (I.G. Ex. 3, at 9 - 10) and final judgment and sentence on conviction were entered on June 18, 1999 (I.G. Exs. 4, 5).

The fact of Petitioner's conviction on two felony charges is thus established by the court records before me (I.G. Exs. 3 - 5). Although convictions relied on in exclusion proceedings are not subject to collateral attack in this forum, I note in passing that Petitioner was represented at every stage of the criminal proceedings by counsel who vigorously protected Petitioner's interests and negotiated a substantial reduction of both the charges and the penalties to which Petitioner had been exposed. There is no material dispute as to the fact of Petitioner's conviction, and the I.G.'s position as to the mandatory exclusion required by section 1128(a)(4) of the Act is correct: 1128(a)(4) and section 1128(c)(3)(B) of the Act require that Petitioner be excluded for a minimum of five years.

The two aggravating factors relied on by the I.G. to enlarge the five-year exclusion to a term of 10 years may also be found in the records before me. The first aggravating factor depends upon the period of time over which the criminal activity was conducted: 42 C.F.R. § 1001.102(b)(2) is invoked whenever "[t]he acts that resulted in the conviction

. . . were committed over a period of one year or more." At the time of his guilty pleas, Petitioner was placed under oath (I.G. Ex. 3, at 3) and carefully questioned by the presiding judge. Among other points into which the judge inquired was the term of the conspiracy that Petitioner admitted (I.G. Ex. 3, at 7):

THE COURT: All right.

With that amendment, you still admit that?You admit that this crime occurred between the dates of May 1st, 1994 and December 31st, 1996?

DR. BAYME: Yes, from '96 to approximately July of '97 I was away in the military.

THE COURT: Everything else is correct?

DR. BAYME: Yes, sir.

This open-court colloquy, undertaken when Petitioner was under oath and represented by counsel, fully establishes that the crime of conspiracy to write and sell prescriptions to be sold illegally was committed over a period of more than one year. The aggravating factor set out in 42 C.F.R. § 1001.102(b)(2) has been demonstrated here beyond the point of material dispute.

The second aggravating factor on which the I.G. relies can also be established by the court records before me. That factor is present when ". . . the individual . . . has been the subject of any other adverse action by any Federal, State or local . . . board, if the adverse action is based on the same set of circumstances that serves as the basis for imposition of the exclusion." 42 C.F.R. § 1001.102(b)(9). The I.G. asserts that this regulation's terms are satisfied by the fact that Petitioner surrendered his license to practice medicine as a consequence of his criminal misconduct. The status of Petitioner's medical license was the topic of specific inquiry by the sentencing judge on June 18, 1999 (I.G. Ex. 4, at 17 - 18):

THE COURT: The defendant has lost his medical license, is that correct?

MR. LINDER: He has, your Honor. He surrendered it over a year ago.

THE COURT: And he will not be getting it back.

MR. LINDER: And he will not be getting it back, he will not seek to get it back, nor even if he did would it be granted. But certainly I make the commitment to your Honor, and defendant makes the commitment to your Honor, that he will not seek his medical license back.

THE COURT: Mr. Bayme, do you want to say anything?

THE DEFENDANT: I think my attorney said everything I could probably say.

In fact, the surrender of Petitioner's license to practice medicine took place on November 19, 1997 (I.G. Ex. 6, at 1), and the official record of that surrender makes the connection between his criminal conduct and the license-surrender unmistakable. The presence of the aggravating factor set out in 42 C.F.R. § 1001.102(b)(9) has been established beyond material dispute.

As I have noted above, the regulations permit an excluded party to reply to the I.G.'s assertion of aggravating factors, but just as the aggravating factors are specifically enumerated and quite narrowly defined, so are the factors which a party may claim as mitigating. They are set out at 42 C.F.R. § 1001.102(c)(1), (2), and (3), and they appear immediately following the regulation's emphatic expression that "Only the following factors may be considered mitigating . . . " The first mitigating factor requires a showing that the criminal conduct at issue involved no more than three misdemeanors and a loss of less than $1,500 to the victim program. The second mitigating factor requires an explicit finding by the sentencing court that the excluded party's culpability was reduced by a "mental, emotional, or physical condition before or during the commission of the offense." The third mitigating factor requires a showing that the excluded party cooperated with law enforcement or program-integrity officials, with substantial results. As to each of the mitigating factors: ". . . Petitioner ha[s] the burden of proving any mitigating factor by a preponderance of the evidence, since the mitigating factor is in the nature of an affirmative defense." Barry D. Garfinkel, M.D., DAB No. 1572, at 12. (1996); see also Andrew H. Lewis, DAB CR625 (1999); James H. Holmes, M.D., DAB CR270 (1993).

Although Petitioner has not explicitly invoked any of the specified mitigating factors, I have nevertheless searched his pro se pleadings - which include his brief dated November 20, 2001, his two letters dated September 30, 2001, and his hearing request dated March 6, 2001 - and the exhibits identified in the Appendix for assertions which might be read as colorably raising any of the mitigating factors. I have found none, and on the settled facts of this case must find and conclude that none are available to him.

First, because it is undisputed that the two charges to which Petitioner pleaded guilty were felonies, the potential mitigation offered by 42 C.F.R. § 1001.102(c)(1) is unavailable. Next, because there is no suggestion in any of the court records of Petitioner's being subject to a culpability-diminishing mental, emotional, or physical condition, the terms of 42 C.F.R. § 1001.102(c)(2) are inapposite. And it is impossible to find a colorable claim that Petitioner cooperated with law enforcement officials, as detailed in 42 C.F.R. § 1001.102(c)(3), in a record containing these statements by the prosecuting attorney at Petitioner's sentencing hearing (I.G. Ex. 4, at 6 - 8):

(MR. GOLDSTEIN): After his indictment, he was interviewed and he gets credit for that. What he doesn't get credit for is the allegation that he cooperated. I can tell you that he didn't. He was interviewed, he made statements. But cooperation involves three things. One, it has to be timely. This wasn't. Two, it has to be truthful. This wasn't. And three, it has to be useful, it wasn't.

* * *

As to another matter another colleague did talk to him, didn't think it was timely, truthful, or useful either. That's all I'll say about that subject.

On the record before me I cannot so much as infer, much less find, the presence of any of the three specified mitigating factors as they are defined in 42 C.F.R. § 1001.102(c). My effort to search this record for colorable claims in mitigation is in part the result of Petitioner's pro se status, and is in part driven by my wish to avoid the appearance of trivializing the evidence of good character and community service that Petitioner has produced; in no sense whatsoever should my effort be understood as a relaxation of the rule so clearly articulated in Barry D. Garfinkel, supra. But that search has left me utterly satisfied that neither as a matter of fact, nor as a matter of law, is Petitioner entitled to claim any of the mitigating factors set out in the controlling regulation.

For the reasons set forth above, I grant the I.G.'s motion for summary judgment and SUSTAIN the I.G.'s exclusion of Petitioner, from participation in Medicare, Medicaid, and all other federal health care programs for a period of 10 years, pursuant to the terms of section 1128(a)(4) of the Act, 42 U.S.C. § 1320a-7(a).

APPENDIX

Petitioner's exhibits have been submitted in two groups. The first group was attached to one of the two letters dated September 30, 2001, filed by Petitioner in response to my September 24, 2001 Order to Show Cause. The second group was submitted with Petitioner's November 20, 2001 brief. None of these proposed exhibits was marked properly, and there is a very substantial potential for confusion or oversight unless they are identified and given consecutive numbers. Accordingly, I have assigned every document proffered by Petitioner a new exhibit number as set forth below, and have admitted each. There may be some duplication of documents, but no document tendered by Petitioner has been excluded or denied admission.

P. Ex. 1: P. Ex. 1: 11 pages described in numbered paragraph 1 of Petitioner's brief.

P. Ex. 2: P. Ex. 2: five pages of documents described in numbered paragraph 2 of that brief.

P. Ex. 3: P. Ex. 3: four pages of documents described in numbered paragraph 3 of that brief.

P. Ex. 4: P. Ex. 4: eight pages of documents described in numbered paragraph 10 of that brief.

P. Ex. 5: P. Ex. 5: 11 pages of documents, including "the various certificates," described in numbered paragraph 11 of that brief.

P. Ex. 6: P. Ex. 6: two pages of documents described in numbered paragraph 14 of that brief.

P. Ex. 7: P. Ex. 7: two pages of documents described in numbered paragraph 13 of that brief.

P. Ex. 8: P. Ex. 8: six pages of documents described in numbered paragraph 12 of that brief.

P. Ex. 9: P. Ex. 9: 18 pages of documents described in the introductory paragraph of that brief.

P. Ex. 10: P. Ex. 10: 13 pages of documents attached to Petitioner's letter "I would like to add . . ." dated September 30, 2001.

P. Ex. 11: P. Ex. 11: 18 pages of various documents submitted by Petitioner but not otherwise described. Some pages may duplicate material included in other Petitioner's exhibits.

Richard J. Smith

Administrative Law Judge