SUBJECT:

Allen Lee Paris, M.D.,

Petitioner,

The Inspector General

DECISION

This case is before me pursuant to a request for hearing filed on November 14, 2001, by Allen Lee Paris, M.D. (Petitioner).

I. Background

By letter dated September 28, 2001, the Inspector General (I.G.) notified Petitioner that he was being excluded from participation in the Medicare, Medicaid, and all other federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act) for a period of 15 years. The I.G. informed Petitioner that his exclusion was imposed pursuant to section 1128(a)(1) of the Act, due to his conviction (as defined in section 1128(i) of the Act), in the United States District Court for the Western District of Missouri, of a criminal offense related to the delivery of a health care item or service under the Medicare program.

I conducted a telephone conference on January 22, 2002. The I.G. is represented in this case by the Office of Counsel to the Inspector General. Although advised of his right to representation, Petitioner elected to appear on his own behalf. I reserved ruling until I had an opportunity to review the parties' submissions on whether this case could be decided based on written arguments and documentary evidence alone. Based on that review, I find that an in-person evidentiary hearing is unnecessary. ⁽¹⁾ On March 5, 2002, the I.G. submitted an initial brief (I.G. Br.) and four proposed exhibits. These exhibits have been identified as I.G. exhibits (I.G. Exs.) 1 - 4. On April 22, 2002, Petitioner filed his response brief (P. Br.). With his brief, Petitioner filed four proposed exhibits. These have been identified as Petitioner (Appendices) exhibits (P. Exs.) A - D. ⁽²⁾ On May 6, 2002, the I.G. submitted its response brief (I.G. Resp.). On May 18, 2002, Petitioner filed a one-page reply, reiterating his previous argument regarding 42 C.F.R. § 1001.102(b). There being no objections made, I admit all proposed exhibits into the record in this case.

It is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in the Medicare, Medicaid, and all other federal health care programs, for a period of 15 years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. I find that Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program. Additionally, I find that his 15-year exclusion is not unreasonable.

II. Issues

A. Whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all other federal health care programs; and

B. Whether the 15-year exclusion imposed by the I.G. is unreasonable.

III. Applicable Law and Regulations

Section 1128(a)(1) of the Act authorizes the Secretary of the U.S. Department of Health and Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual "convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII of this chapter or under any State health care program." 42 U.S.C. § 1320a-7(a)(1).

An exclusion under section 1128(a) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B). Aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. § 1001.102(b). If aggravating factors justify an exclusion longer than five years, mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c).

Pursuant to 42 C.F.R. § 1001.2007, a person excluded under section 1128(a)(1) of the Act may file a request for hearing before an administrative law judge (ALJ).

IV. The Parties' Arguments

A. The I.G.'s Arguments

The I.G. argues that Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicare program. Therefore, Petitioner is subject to the statutory minimum mandatory period of exclusion, that is, five years. Act, section 1128(a)(1); 42 U.S.C. §1320a-7(a)(1).

The I.G. also asserts that, due to the following aggravating factors and the absence of mitigating factors, Petitioner's period of exclusion was reasonably lengthened to 15 years:

•The acts resulting in the conviction created a financial loss to a government program or to one or more entities of $1500 or more;

•The acts resulting in the conviction were committed over a period of one year or more;

•The sentence imposed by the court included incarceration; and

•The Petitioner was subject to adverse action by a State licensing board that was based on the same circumstances that serve as the basis for the imposition of the exclusion.

42 C.F.R. §§ 1001.102(b)(1), (2), (5) and (9).

B. Petitioner's Arguments

In his brief, Petitioner concedes he is subject to at least a five-year exclusion. ("Nor is it the intent [of Petitioner] to argue against the basis for the mandatory five year exclusion from participation in Medicare and other Federal Health Care Programs"). P. Br. at 13. Petitioner's main argument with respect to his exclusion is that an extension of his exclusion beyond five years is permissive and not mandatory. He cites 42 C.F.R. § 1001.102 for its language regarding aggravating factors. Specifically, section 1001.102 (b) states, "[a]ny of the following factors may be considered to be aggravating and a basis for lengthening the period of exclusion . . . ."(emphasis added). He argues that the operative word in the regulation is may and not must. He asks that I consider his exemplary past professional life and that the positive aspects of his career far outweigh the negative effects surrounding the one event for which he was convicted. He suggests that his exclusion from the Medicare and Medicaid programs could penalize the Medicare and Medicaid programs as much as him. He lists a number of contributions he has previously made to health care such as:

•He assisted many rural hospitals which, without his consultations, would have had extended patient stays;

•He provided expertise to health care delivery systems because of his knowledge in the area of infection control;

•His more advanced, state-of-the-art laboratories allowed shorter turn around times for testing, resulting in savings to patients and hospitals;

•He presented many health care education programs;

•He arranged, planned and conducted continuing medical education conferences;

•He served on medical boards and with peer review organizations;

•He established a free-standing community blood bank;

•He was involved in the development of guidelines for cytology laboratories while he was employed by the Centers for Disease Control (CDC);

•While at CDC, he performed many job-related and volunteer activities to improve health care; and

•While at CDC, he worked at several levels to protect against bioterrorist acts. ⁽³⁾

Petitioner appears also to concede that his conviction cannot be collaterally attacked. ("It is not the intent of this appeal to argue the basis for the underlying conviction. That argument is being made in a separate writ of certiorari to the Supreme Court"). P. Br. at 13. Nonetheless, he lists in his brief a number of ways in which he believes his conviction was incorrect, including what several witnesses did or did not say at his trial; that his general manager was actually responsible for the laboratory's billing errors; that he thought the laboratory was sold at the time of the charged improprieties and, thus, he had no motive for conspiring to defraud Medicare; that had the government responded more quickly to the accusations against him, he would have still had the records he needed to prove his innocence; and that, although he had operated three laboratories and was more closely associated with two of them, the government found errors only at the third laboratory.

Petitioner also makes several arguments with respect to particular aggravating factors. Those arguments will be discussed below, in my discussion of the applicable alleged aggravating factors.

V. Findings and Discussion

The findings of fact and conclusions of law noted below, in italics and bold, are followed by a discussion of each finding.

A. Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare.

Petitioner was charged, by grand jury indictment, on August 5, 1999, in the United States District Court for the Western District of Missouri, of conspiracy to defraud the United States and its agencies, the Department of Health and Human Services and the Department of Defense. The indictment alleged that Petitioner was submitting, for Medicare and the Civilian Health and Medical Program of the Uniformed Services (Champus) beneficiaries, requests for payment for the provision of clinical laboratory services that were not ordered or were billed as component elements of chemistry test panels or profiles, and that he received payment on the claims, all in violation of 18 U.S.C. § 371. ⁽⁴⁾ I.G. Ex. 1.

According to the August 5, 1999 grand jury indictment against Petitioner, Mid-America Clinical Labs, Ltd. (MACL) was a Missouri corporation with its principal place of business in West Plains, Missouri. MACL was engaged in providing clinical laboratory testing services to physicians, hospitals, and their patients. Petitioner had incorporated the company in 1983, owned and operated the clinical laboratory, sold the business in late 1994, but continued to receive payments on the claims made prior to the sale of the business until on or about June 29, 1995. I.G. Ex. 1.

After a trial by jury, Petitioner was found guilty of one count of conspiracy to defraud Medicare and Champus health care programs, in violation of 18 U.S.C. § 371. He was sentenced to 27 months in prison, three years of supervised release thereafter, and he was required to pay an assessment of $50, a fine of $30,000, and restitution in the amount of $222,654.66. I.G. Ex. 2.

After appeal, the United States Appellate Court for the Eighth Circuit, in a per curium decision, affirmed Petitioner's conviction and sentence. Additionally, his petition for rehearing en banc was denied. I.G. Exs. 3, 4.

I find that Petitioner's conviction met the definition of a section 1128(a)(1) conviction. First, he was convicted of a criminal offense. Section 1128(i)(2) of the Act defines a conviction as inter alia; "[w]hen there has been a finding of guilt against the individual or entity by a Federal, State, or local court . . . ." Petitioner was found guilty of violating 18 U.S.C. § 371 by a federal court. Second, Petitioner's conviction was for acts related to the sale of laboratory services, which is an item or service under Medicare, in that payments are made for laboratory services by Medicare as part of the health insurance program for the aged and disabled. Third, false billing for items or services has been repeatedly held to be an offense related to the delivery of an item or service within the meaning of section 1128 (a)(1) of the Act. Joann Fletcher Cash, DAB No. 1725 (2000). Finally, the conspiracy for which Petitioner was convicted involved the submission of claims to Medicare and Champus for laboratory tests not ordered by a physician, and for inappropriately "unbundled" laboratory tests. I.G. Ex. 2. Unbundling occurs when a laboratory bills separately for some, or all, tests analyzed simultaneously by a single piece of equipment on a single patient specimen. ⁽⁵⁾

I find that the facts and circumstances underlying Petitioner's conviction establish a nexus or common sense connection between the delivery of the Petitioner's "services" or laboratory test results and the Medicare program. Medicare pays physicians, hospitals, independent laboratories, and other providers for clinical laboratory services they provide to patients. To receive payment, providers are required to submit itemized bills for reimbursement to Medicare fiscal agents called carriers and intermediaries. Medicare does not pay for tests not ordered by a physician.

Petitioner admits in his "Statement of Facts" portion of his brief that he provided services to Medicare and Champus recipients and billed for these services through MACL for reference laboratory testing. P. Br. at 4. In this case, the nexus between the delivery of Petitioner's services and the Medicare program seems patently obvious because the conspiracy for which Petitioner was convicted involved the submission of false claims to Medicare and his laboratory's receipt of more in Medicare payments than it was entitled. Carlos Rivera-Cruz, M.D., DAB CR677 (2000).

As noted above, Petitioner makes several arguments related to the incorrectness of his conviction, even though he seems to concede that his conviction cannot be "collaterally attacked," meaning that his case cannot be retried in this forum. It is inappropriate for me to inquire into a jury's or judge's decision concerning the evidence that was before them. Moreover, it is well established that section 1128 of the Act is triggered by a conviction, and neither the ALJ norappellate panels of the Departmental Appeals Board (Board) can collaterally attack the underlying conviction or relitigate the validity of the conviction. 42 C.F.R. § 1001.2007(d); Travers v. Shalala, 20 F.3rd 993, at 998 (9^th Cir. 1994). Therefore, all of the facts Petitioner set forth in his brief regarding the evidence at his trial are unavailing to him here, and I give them no evidentiary weight in this decision. P. Br. at 4 - 12.

B. Petitioner's exclusion for a period of 15 years is not unreasonable.

Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program. The I.G. was required to exclude him, pursuant to section 1128(a)(1) of the Act, for at least five years. Consequently, the only issue in controversy is whether the 15-year exclusion period imposed against Petitioner is unreasonable.

The I.G. has discretion to impose an exclusion of more than five years in appropriate circumstances. In Petitioner's case, the I.G. added 10 years to the statutory five-year minimum. The Board has previously pointed out that the preamble to the applicable regulations, 42 C.F.R. Part 1001, "indicates that the regulation contemplates broad discretion for the I.G. in setting the length of an exclusion in a particular case, in light of the I.G.'s 'vast experience in implementing exclusions under these authorities'. . . ." And, the Board has, thus, held that as long as the length of exclusion is within a reasonable range, neither the ALJ nor the Board has the authority to alter it. Gerald A. Snider, M.D., DAB No. 1637 (1997). I point out the Board's holding in the Snider case because of Petitioner's argument that the I.G. may consider aggravating factors rather than must consider them. Petitioner is correct that the I.G. is not required to add to the mandatory five-year exclusion if aggravating factors are present. Nonetheless, my inquiry is limited to whether the I.G.'s determined length of exclusion is within a reasonable range.

The Secretary has published regulations which establish the criteria for determining the length of exclusions imposed pursuant to section 1128 of the Act. The regulation which sets forth the applicable criteria for an exclusion imposed pursuant to section 1128(a) is 42 C.F.R. § 1001.102. The applicable criteria are expressed as either aggravating or mitigating factors. The relevant aggravating factors are stated at 42 C.F.R. § 1001.102(b). The relevant mitigating factors are stated at 42 C.F.R. § 1001.102(c). An exclusion may be imposed for a period of more than five years where there exists an aggravating factor or factors not offset by any mitigating factor or factors.

The aggravating and mitigating factors that are set forth in the regulations function as rules of evidence for deciding the length of exclusions. Evidence which does not pertain to one of the specific aggravating or mitigating factors is not relevant and may not be used to decide whether an exclusion of a particular length is reasonable.

The regulations do not prescribe the weight that is to be given to evidence that relates to an aggravating or a mitigating factor. While the regulation tells the decision-maker what criteria may be used to determine the length of an exclusion, it does not tell the decision- maker how to weigh relevant evidence to arrive at an exclusion that is reasonable in a given case.

However, there is an overall statutory purpose to which the regulations must adhere. An exclusion is not intended to be a punishment. The purpose of any exclusion that is imposed under section 1128 of the Act is to protect federally funded health care programs and beneficiaries and recipients of those programs from an individual who has been shown not to be trustworthy. Therefore, in deciding the length of an exclusion that is imposed pursuant to section 1128, the question that must be considered is: what is reasonably necessary to protect the programs and their beneficiaries and recipients from an untrustworthy individual? In a case involving an exclusion that is imposed pursuant to section 1128(a)(1), the factors that are contained in 42 C.F.R. § 1001.102(b) and (c) state the criteria which may be used to answer this question.

At the outset, however, I point out that Petitioner was convicted of fraud against the Medicare program, was sentenced to prison, and ordered to make restitution in the amount of $222,654.66. In the face of such a conviction, the I.G. was required by law to exclude him as untrustworthy for five years and to evaluate his future trustworthiness pursuant to the factors set forth at 42 C.F.R. § 1001.102. Joann Fletcher Cash, DAB No. 1725 (2000).

1. The I.G. has proven the existence of aggravating factors.

The aggravating factors that the I.G. may consider in lengthening a period of exclusion are found at 42 C.F.R. § 1001.102(b). In the instant case, the I.G. contends that a basis exists for enlarging the period of exclusion in view of these four factors:

•The acts resulting in the conviction created a financial loss to a government program or to one or more entities of $1500 or more (42 C.F.R. § 1001.102(b)(1));

•The acts resulting in the conviction were committed over a period of one year or more (42 C.F.R. § 1001.102(b)(2));

•The sentence imposed by the court included incarceration (42 C.F.R. § 1001.102(b)(5)); and

•Petitioner was subject to adverse action by a State licensing board based on the same set of circumstances that served as the basis for his exclusion (42 C.F.R. § 1001.102(b)(9)).

a. Petitioner's criminal offense involved the loss to a federal health care program of over $1500.

With regard to the first factor, I find that the Petitioner's criminal offense involved the loss to a federal health care program of over $1500. The indictment charging Petitioner alleged Petitioner caused the MACL to receive overpayments from the United States, as a result of improper billing, in excess of $200,000, and it was that indictment on which Petitioner was convicted. I.G. Ex. 1. Moreover, after a jury found Petitioner guilty, the Court ordered Petitioner to pay $221,471.56 in restitution to the Health Care Financing Administration (now CMS). I.G. Ex. 2. It is appropriate to consider the amount ordered for restitution to correspond to the amount of the loss to an entity. Steven Alonso Henry, M.D., DAB CR638 (2000). Thus, the evidence shows that the loss involved more than $1500.

With respect to this aggravating factor, Petitioner, in his appeal brief before the Eighth Circuit, argued that the government had failed to establish the amount of its loss because the Medicare and Champus audits introduced at trial were insufficient to determine the amount of loss attributable to criminal conduct versus billing errors. Additionally, in his appeal brief, Petitioner argued that he had established the amounts claimed to be the result of unbundling ranged only between 6% and 10% of the total claimed losses. In both his appeal brief and brief herein, Petitioner claims that he had already repaid $12,300 for "unbundled," overbilled claims. P. Ex. A, at 30 - 31; P. Br. at 12.

I make several comments regarding Petitioner's arguments. The Eighth Circuit did not find reversible error in the sentencing court's evaluation of restitution. Second, even 6% of the amount of loss determined by the sentencing court ($222,654.66) is over $1500, the precipitating amount for this aggravating factor. And, if one were to subtract $12,300 from the amount of loss determined by the court, the amount would be well over $1500. Third, while Petitioner cites his appellate brief and refers to his $12,300 repayment, he provides no evidence to contradict the sentencing court's establishment of $222,654.66 as the amount of loss engendered by Petitioner's criminal activity. ⁽⁶⁾ More importantly, the regulations specifically require the entire amount of the financial loss, to the program or entities, to be considered regardless of whether full or partial restitution has been made. 42 C.F.R. § 1001.102 (b)(1); Dan Anderson, DAB CR855 (2002). Accordingly, I find the I.G. has proven this aggravating factor.

b. The acts resulting in Petitioner's conviction were committed over a period of one year or more.

With regard to the second alleged aggravating factor, I find that the acts resulting in the conviction were committed over a period of one year or more. 42 C.F.R. § 1001.102(b)(2). In his indictment, the grand jury charged that Petitioner, "beginning at least as early as 1987 and continuing until on or about June 29, 1995, . . . did wilfully combine, conspire and agree to defraud the United States . . . ." I.G. Ex. 1. On the other hand, Petitioner claims that at his trial no evidence was discovered or presented which took place prior to April 1993 nor was any "unbundling" shown after May 1994. He denies his activities took place over a seven-year period. Even though Petitioner has presented no evidence corroborating his claims, and although I cannot look behind the conviction, to simply accept Petitioner's claims that the evidence shows activities only from April 1993 to May 1994, would show nevertheless that the activities took place over a period of one year or more. Accordingly, I find that the I.G. has proven this aggravating factor.

c. The sentence imposed by the Court after Petitioner's conviction included incarceration.

With respect to the third alleged aggravating factor, 42 C.F.R. § 1001.102(b)(5) provides for enlarging the period of exclusion if "the sentence imposed by the court included incarceration." On February 21, 2001, subsequent to a trial by jury and a finding of guilt, a judge of the United States District Court sentenced Petitioner to 27 months in prison. Therefore, I find the I.G. has proven this aggravating factor.

d. The Petitioner was subject to an adverse action by a State board based on the same circumstances that serve as the basis for the imposition of his exclusion.

With respect to the fourth alleged aggravating factor; that is, 42 C.F.R. § 1001.102(b)(9) provides for enlarging the period of exclusion if the Petitioner has been subject to adverse action by any federal, State, or local agency or board, if the adverse action is based on the same circumstances that serves as the basis for the imposition of the exclusion. To prove this aggravating factor exists in this case, the I.G. submitted Findings of Fact, Conclusions of Law and Disciplinary Order, issued on August 8, 2001, by the State Board of Registration for the Healing Arts of the State of Missouri. This document reflects that Petitioner's license to practice medicine in Missouri was revoked because he had been found guilty of one felony count of conspiracy to defraud Medicare and Champus, and because conspiracy to defraud Medicare and Champus is a felony offense involving moral turpitude, an essential element of which is fraud and dishonesty. I.G. Ex. 5. Thus, it is clear that Petitioner's license was revoked because of the same circumstances the I.G. has set forth as the basis for excluding Petitioner.

Petitioner argues, however, that he thought his medical license in Missouri had been canceled because he had not renewed it when he moved out of Missouri about five years previously. He does not think his exclusion should be increased because the Missouri Board revoked a license he no longer thought he had. Petitioner submitted a copy of his letter of June 28, 2001 to the Missouri Board indicating Petitioner's belief that "I had forfeited my medical license (#R1C29) by letting it expire when I failed to renew my licence when I moved from Missouri in 1995; and that if I did not renew it within three years that it would expire and I would have to reapply." P. Ex. B. Petitioner's argument, however, does not logically answer the question of whether he was subject to adverse action by any federal, State, or local agency or board, and whether the adverse action was based on the same circumstances the I.G. claims for his exclusion.

Barring an attack on the authenticity of I.G. Ex. 5, I would be hard pressed not to find the I.G. has proven the existence of the fourth aggravating factor. I would also point out that Petitioner's letter to the Missouri Board is dated June 21, 2001. This is before the Board's hearing on July 27, 2001. Thus, the Missouri Board took adverse action against Petitioner even though it presumably knew Petitioner thought he had allowed his Missouri medical licence to lapse. According to the Missouri Board's revocation order, Petitioner's "certificate of registration" had expired on January 31, 1998, but his "medical license" was revoked by the order. The Missouri Board's order shows that this licensing body considered the conduct underlying his conviction to involve derogation of professional responsibility serious enough to demand such action even though the Petitioner no longer had a "certificate of registration" in Missouri. Narendra M. Patel, DAB No. 1736 (2000).

Therefore, I find the I.G. has proven the existence of the fourth aggravating factor.

2. Petitioner has failed to demonstrate the existence of any mitigating factors.

In his brief, Petitioner mentions several "mitigating" factors. First, Petitioner points out all of the ways in which he has contributed to health care during his career. The contributions he lists are summarized above in Section IV. B., and will not be repeated here. But, as also noted above, for determining the reasonableness of the length of exclusion, the ALJ can only consider the existence of mitigating factors if aggravating factors exist, and the ALJ can only consider the mitigating factors listed in the regulations. 42 C.F.R. § 1001.102(c). The allowable mitigating factors are: 1)the individual was convicted of three or fewer misdemeanor offenses, and the financial loss to Medicare was less than $1500; 2)the court determined the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual's culpability;or 3) the individual's cooperation with federal or State officials resulted in others being convicted or excluded from Medicare, Medicaid and all other federal health care programs, additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or the imposition against someone else of a civil money penalty or assessment.

The exclusive list of mitigating factors in the regulations does not provide for mitigation based on an individual's generally good medical career. Therefore, I cannot consider Petitioner's medical career history in association with a determination of the reasonableness of the I.G.'s imposed length of exclusion. In another recent case, the Petitioner also argued that he had provided valuable services to Medicare and that the monetary benefit of these services outweighed any loss to the Medicare program. The ALJ in that case found that the regulation did not allow him to consider evidence of the benefits provided Medicare as a mitigating factor. Dan Anderson, DAB CR855 (2002). Moreover, I note that, even if I could consider contributions Petitioner has made to the nation's health care, he has submitted no evidence other than his own statements to prove his past beneficial activities. He submitted no affidavits regarding his standing in the medical community.

Petitioner makes one argument that could possibly fit within one of the mitigating factors; that is, section 1001.102(c)(3)(iii). Petitioner states that he qualified for this mitigating factor because health programs benefitted "over his years in the Ozarks through his cooperation with the State Medicare Inspectors." P. Br. at 22. I would note, however, that this mitigating factor, by its language, contemplates an individual's "cooperation with federal or State officials result[ing] in others being convicted or excluded or in additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weakness or in the imposition against someone else of a civil money penalty or assessment." Petitioner provides no evidence of cooperation with law enforcement officials, nor evidence even of his history of cooperation with Medicare inspectors. He does not aver that he cooperated with law enforcement officials around the time of his indictment, conviction, and sentencing. Therefore, I cannot find that Petitioner has proven the existence of this mitigating factor.

In sum, I find the Petitioner has not shown the presence of any mitigating factors.

3. Protection of the beneficiaries of Medicare and other federal health care programs is required.

Obviously, Petitioner's conduct is the type that Congress sought to deter for the protection of the beneficiaries of the federal and State health care programs. It follows that, since Petitioner poses a risk to the welfare of Medicare beneficiaries and Medicaid recipients, his untrustworthiness makes him unfit to participate in any of these programs.

I must determine whether the length of exclusion is unreasonable based on the facts as found by me. In order to make that determination, I must consider whether the length of the exclusion imposed by the I.G. is within a reasonable range. Thus, to determine if the IG's length of exclusion is unreasonable, I must consider the parties' evidence as it pertains to the aggravating and mitigating factors delineated at 42 C.F.R. § 1001.102 and, based upon my findings, determine if the I.G.'s decision is within a reasonable range.

The aggravating factors established by the I.G. in this case prove Petitioner is an untrustworthy individual, due to his participation in a conspiracy lasting over one year and resulting in a loss to the Medicare program of over $200,000. The actions for which he was convicted were recurrent and deliberate, not random and impulsive. Petitioner was sentenced to 27 months of incarceration, followed by 3 years of probation, after a full jury trial, suggesting that the sentencing judge found him to be a highly culpable individual.

For the reasons previously stated above, and in light of my consideration of the regulatory criteria, I find that the 15-year exclusion imposed by the I.G. is within a reasonable range of possible exclusion periods given the circumstances of this case, in which four aggravating factors were present and no mitigating factors. I find that the 10-year additional exclusion imposed by the I.G. is not excessive. The 15-year exclusion is a legitimate remedial remedy, which is consistent with the purpose of section 1128 of the Act. In essence, the purpose of section 1128 of the Act is to protect federally-funded health care programs and their beneficiaries and recipients from untrustworthy individuals.

VI. Conclusion

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs for a period of at least five years because of his criminal conviction for an offense relating to delivery of a health care item or service under the Medicare program. The I.G. was also justified in lengthening the period of exclusion, due to the existence of aggravating factors. The 15-year exclusion is therefore sustained.

Anne E. Blair

Administrative Law Judge

1. Petitioner has had an opportunity to fully present his position in this case. He has not suggested he has witnesses to give oral testimony or that he has any testimony to present himself that he has failed to report in the brief he filed.

2. Petitioner attached "Appendix" A, B, C and D to his brief. Because they are few in number, I have not renumbered them to conform to Civil Remedies Division procedures.

3. The relevance of Petitioner's past work in the health care industry is discussed below in Section V. B. 2.

4. 18 U.S.C. § 371 states, in pertinent part:

If two or more persons conspire to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years or both.

5. In his brief, Petitioner mentions laboratory "panels" and "profiles" that his laboratory provided to physicians so the physicians could order customized groupings of tests. He couched these profiles as expedient for the physicians his laboratory served because the physician did not have to review his or her usual panel when ordering services. Petitioner added that, if the physician ordered a more complex panel than might otherwise seem necessary, the patients in the rural Ozark area would be better served because they did not have to travel several times to give specimens. Nonetheless, for the laboratory to add tests a physician did not specifically know were ordered because it was on the physician's customized profile can be fraudulent, just as the practice of unbundling can be. I can only assume, given the citations Petitioner gave to his trial transcript, that his laboratory's physician "profiles" were part of the charges against him (P. Br. at 8, 9) and he was convicted of those charges.

6. In this section of his argument, Petitioner mentions that to include the $12,300 amount he has repaid as part of the total loss would be "double jeopardy." The Board has established, however, that the exclusion provision at section 1128(a)(1) of the Act does not violate the Double Jeopardy Clause of the Constitution. Joann Fletcher Cash, DAB No. 1725 (2000).