Nicholas J. Penna, D.M.D., CR No. 338 (1994)

$05:Exclusion Case

          Department of Health and Human Services

                DEPARTMENTAL APPEALS BOARD

                  Civil Remedies Division

                           
                    )
In the Case of:            )
                           )
Nicholas J. Penna, D.M.D., )    DATE:  October 26, 1994
                           )
   Petitioner,             )
                           )
        - v. -             )    Docket No. C-94-306
                           )    Decision No. CR338
The Inspector General.     )
                           )

                         DECISION

By letter dated January 14, 1994 (Notice), the Inspector General
(I.G.) of the United States Department of Health and Human Services
(HHS) notified Nicholas J. Penna, D.M.D. (Petitioner) that he was
being excluded from participation in the Medicare, Medicaid,
Maternal and Child Health Services Block Grant and Block Grants to
States for Social Services programs for a period of five years. 1/ 
The I.G. advised Petitioner that he was being excluded as a result
of his conviction of a criminal offense related to the delivery of
an item or service under Medicaid, within the meaning of section
1128(a)(1) of the Social Security Act (Act).  The I.G. advised
Petitioner that exclusions of individuals convicted of
program-related offenses are mandated by section 1128(a)(1) of the
Act.  The I.G. further advised Petitioner that section
1128(c)(3)(B) of the Act requires a five-year minimum period of
exclusion.

Petitioner timely requested a hearing, and the case was assigned to
me for hearing and decision.  During an April 5, 1994 prehearing
conference, the parties agreed to proceed in this case by
submitting written arguments supported by documentary evidence.

Thereafter, the I.G. filed a brief, including a statement
enumerating the material facts and conclusions of law the I.G.
considered to be uncontested.  The I.G.'s brief was accompanied by
11 exhibits which I identify as I.G. Ex. 1 through 11.  Petitioner
responded with a brief, including a response to the I.G.'s proposed
findings of fact and conclusions of law. 2/  Petitioner's
responsive brief was accompanied by one exhibit which I identify as
P. Ex. 1.  The I.G. filed a reply brief.

Petitioner has not contested the admissibility of the 11 exhibits
submitted by the I.G.  I admit into evidence I.G. Ex. 1 through 8
and 11.  I.G. Ex. 9 and 10 consist of the I.G's Notice letter and
Petitioner's request for a hearing.  I reject these exhibits
because both of these documents are already in the record.  In my
April 20, 1994 prehearing order, I directed the parties not to file
such duplicative material as exhibits.

The I.G. has not contested the admissibility of P. Ex. 1, and I am
admitting this exhibit into evidence.

I have considered the parties' written arguments and supporting
exhibits, and the applicable statutes and regulations.  I conclude
that there are no material and relevant factual issues in dispute
(i.e., the only matter to be decided is the legal significance of
the undisputed facts).  I conclude also that Petitioner is subject
to the mandatory exclusion provisions of sections 1128(a)(1) and
1128(c)(3)(B) of the Act, and I affirm the I.G.'s determination to
exclude Petitioner from participation in Medicare and Medicaid for
a period of five years.

                      APPLICABLE LAW

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act make it mandatory
for any individual who has been convicted of a criminal offense
related to the delivery of an item or service under Medicare or
Medicaid to be excluded from participation in such programs for a
period of at least five years.

      FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCL)

1.  Petitioner is a dentist.  P.'s Response to I.G.'s Proposed
FFCLs, paragraph 1.

2.  Prior to his conviction, Petitioner owned and operated a
professional corporation that provided mobile dental services to
nursing homes.  I.G. Ex. 6.

3.  An investigation conducted by Financial Investigator Billy D.
Luther of the North Carolina Medicaid Investigations Unit revealed
that Petitioner's corporation would bill Medicaid for dental
services, mostly consisting of examinations and prophylaxis.  Based
on the time spent and the number of patients for which the
corporation billed services, Investigator Luther determined that
Petitioner spent less than four minutes with each Medicaid
recipient.  Consultants opined that in such a short period of time
Petitioner could not have provided the type of services for which
he billed Medicaid.  I.G. Ex. 6, I.G. Ex. 8.

4.  In order to resolve the issues raised by the investigation of
the North Carolina Medicaid Investigations Unit, Petitioner chose
to enter into a plea bargain agreement.  P. Br., p. 4.

5.  Petitioner agreed to plead guilty to a one count misdemeanor
charge of receiving stolen goods, to pay restitution to Medicaid in
the amount of $8,600.21 before sentencing, and to pay a fine of
$8,600.00 and court costs in full at sentencing.  In exchange for
this, the State of North Carolina agreed not to prosecute
Petitioner for any other act relating to the submission of claims
to the North Carolina Medicaid program occurring prior to the entry
of the plea.  I.G. Ex. 4.

6.  Pursuant to the plea bargain agreement, on June 22, 1993, in
the District Court of North Carolina in Wake County, Petitioner
pled guilty to a one count misdemeanor charge of receiving stolen
goods.  The Misdemeanor Statement of Charges to which Petitioner
pled guilty alleged that Petitioner had submitted a fraudulent
claim to the North Carolina Medicaid program for reimbursement for
a dental service.  From this I conclude that the monies Petitioner
obtained as a result of this criminal activity constituted the
"stolen goods" referred to in the charge.  I.G. Ex. 1, I.G. Ex. 4;
P. Br., p. 3.

7.  On June 22, 1993, the court accepted Petitioner's plea and
entered a judgment finding that there was a factual basis to the
charge and that Petitioner was guilty as charged.  I.G. Ex. 5, I.G.
Ex. 7.  

8.  The court sentenced Petitioner to a term of imprisonment for
two years, but suspended this sentence on the condition that
Petitioner be placed on unsupervised probation for three years and
that he pay a fine in the amount of $8,600 and costs.  The judgment
indicated that Petitioner had already paid restitution in the
amount of $8,600.21, and, therefore, ordered no further
restitution.  I.G. Ex. 5.

9.  The Secretary of HHS has delegated to the I.G. the authority to
determine and impose exclusions pursuant to section 1128 of the
Act.  48 Fed. Reg. 21662 (1983).

10.  On January 14, 1994, the I.G. issued a Notice stating that
Petitioner was being excluded from participation in Medicare and
Medicaid for five years, pursuant to section 1128(a)(1) of the Act.

11.  Petitioner's guilty plea, and the court's acceptance of that
plea, constitutes a "conviction", within the meaning of sections
1128(a)(1) and 1128(i) of the Act.  FFCLs 6 - 8.

12.  Petitioner was convicted of a criminal offense related to the
delivery of an item or service under Medicaid, within the meaning
of section 1128(a)(1) of the Act.  FFCLs 3 - 8.  

13.  Pursuant to section 1128(a)(1) of the Act, the I.G. is
required to exclude Petitioner from participating in Medicare and
Medicaid.

14.  The minimum mandatory period of exclusion pursuant to section
1128(a)(1) is five years.  Act, section 1128(c)(3)(B).

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

16.  The determination of the I.G. to impose and direct a five-year
exclusion in this case does not violate the prohibition against
double jeopardy under the United States Constitution.

17.  The determination of the I.G. to impose and direct a five-year
exclusion in this case does not violate Petitioner's right to due
process and equal protection of the law under the United States
Constitution.

18.  Neither the I.G. nor an administrative law judge has the
authority to reduce the five-year minimum exclusion mandated by
sections 1128(a)(1) and 1128(c)(3)(B) of the Act.

                        DISCUSSION

The Act mandates exclusion of:

     Any individual or entity that has been convicted of a criminal
offense related to the delivery of an item or service under . . .
[Medicare] or under . . . [Medicaid].

Act, section 1128(a)(1).

The Act requires further that, in the case of an exclusion imposed
and directed pursuant to section 1128(a)(1), the minimum term of
such exclusion "shall be not less than five years."  Act, section
1128(c)(3)(B).

The I.G. asserts that Petitioner was convicted of a criminal
offense that falls within the meaning of section 1128(a)(1) of the
Act.  The I.G. asserts therefore that Petitioner's exclusion is
mandatory, and that Petitioner must be excluded for at least five
years pursuant to section 1128(c)(3)(B).

In order for imposition of a five-year exclusion to be proper in
this case, the following two statutory criteria must be met:  (1)
Petitioner must be convicted of a criminal offense; and (2) the
criminal offense must be related to the delivery of an item or
service under Medicare or Medicaid.

I.  Petitioner was convicted of a criminal offense.

The first criterion that must be satisfied in order to establish
that the I.G. had the authority to exclude Petitioner under
sections 1128(a)(1) and 1128(c)(3)(B) of the Act is that Petitioner
must have been convicted of a criminal offense.  Section 1128(i) of
the Act defines when a person has been convicted for purposes of an
exclusion.  That provision defines the term "convicted" of a
criminal offense to include those circumstances "when a plea of
guilty or nolo contendere by the individual or entity has been
accepted by a Federal, State or local court; . . ."  Act, section
1128(i)(3).

In the case at hand, evidence adduced by the I.G. establishes that
the State of North Carolina charged Petitioner with the misdemeanor
offense of receiving stolen goods.  I.G. Ex. 1.  On June 22, 1993,
Petitioner pled guilty to this offense in the District Court of
North Carolina in Wake County.  I.G. Ex. 4.  The court's acceptance
of Petitioner's guilty plea is demonstrated by the fact that, on
June 22, 1993, it entered a judgment finding that there was a
factual basis to the charge and that Petitioner was guilty as
charged.  The court sentenced Petitioner to a term of imprisonment
for two years, but suspended this sentence on the condition that
Petitioner be placed on unsupervised probation for three years and
that he pay a fine in the amount of $8,600 and costs.  The judgment
indicated that Petitioner had already paid restitution in the
amount of $8,600.21 and, therefore, ordered no further restitution. 
I.G. Ex. 5.  The evidence adduced by the I.G. is clear and not
subject to conflicting interpretation.  It establishes that
Petitioner was convicted of a criminal offense within the meaning
of sections 1128(a)(1) and 1128(i) of the Act.

In his response to the I.G.'s proposed findings of fact and
conclusions of law, Petitioner stated that he "objects" to the
following statement:  "Petitioner pled guilty, was 
adjudged guilty, and was sentence[d], and therefore he was
`convicted' of a criminal offense within the meaning of Section
1128."  P.'s Response to I.G.'s Proposed FFCLs, paragraph 8.  While
Petitioner objected to this statement, he did not specifically
identify the reason for his objection.  Petitioner does not state
whether he objects to the factual assertions of the I.G. that he
pled guilty, was adjudged guilty, and was sentenced, or to the
legal conclusion that he was "convicted" based on these facts.

The documents submitted by the I.G. are sufficiently clear on their
face to establish the facts as asserted by the I.G.  Petitioner did
not challenge the authenticity of any of these documents and he did
not offer any evidence supporting a different view of the facts. 
On the contrary, in the first two pages of his brief, Petitioner
admitted that he pled guilty to a misdemeanor offense and that this
plea was accepted by the District Court of North Carolina in Wake
County.

If Petitioner is objecting to the legal conclusions to be drawn
from these facts, he does not discuss his objections in his brief. 
Petitioner's brief does not even address the issue of whether the
facts, as established by the record, lead to the conclusion that he
was convicted of a criminal offense within the meaning of section
1128 of the Act.

Thus, in spite of Petitioner's broad objection to the I.G.'s
proposed finding of fact and conclusion of law, I conclude that he
has not raised a genuine dispute of material fact or law on the
issue of whether he was convicted of a criminal offense.  The
uncontroverted evidence adduced by the I.G. supports the conclusion
that Petitioner was convicted of a criminal offense.  

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

The second criterion that must be satisfied in order to find that
the I.G. had the authority to exclude Petitioner under sections
1128(a)(1) and 1128(c)(3)(B) of the Act is that the criminal
offense in question must be "program-related," i.e., related to the
delivery of an item or service under Medicare or Medicaid. 
Throughout this proceeding, Petitioner has consistently maintained
the position that the criminal offense for which he was convicted
was not related to the delivery of an item or service under
Medicare or Medicaid.

The name of the criminal offense which formed the basis of
Petitioner's conviction is receiving stolen goods.  This offense
does not mention Medicare, Medicaid, or any other State health care
program, and, on its face, there is no indication that it is
related to the delivery of an item or service under Medicare or
Medicaid.  However, an appellate panel of the Departmental Appeals
Board has previously held that it is not the particular label
assigned to the crime of which a petitioner is convicted that
determines whether the offense is related to the delivery of an
item or service under Medicare or Medicaid, but rather the actions
and circumstances surrounding the offense.  Berton Siegel, D.O.,
DAB 1467, at 6 - 7 (1994). 

Thus, it is consistent with congressional intent for me to examine
the facts underlying Petitioner's conviction in order to determine
whether the statutory criteria of section 1128(a)(1) have been
satisfied.  In construing the language "related to the delivery of
an item or service," the administrative law judge stated in the
case of H. Gene Blankenship:

     The test of whether a `conviction' is `related to' Medicaid
must be a common sense determination based on all relevant facts as
determined by the finder of fact, not merely a narrow examination
of the language within the four corners of the final judgment and
order of the criminal trial court.

DAB CR42, at 11 (1989).  

The question before me here is whether Petitioner's criminal
offense is related to the delivery of an item or service under
Medicare or Medicaid, not whether Petitioner was convicted under a
criminal statute expressly criminalizing fraud against Medicare or
Medicaid.  My task is not simply to examine the judgment and State
criminal statute to determine whether they specifically refer to
Medicaid fraud.  Rather, my task is to examine the circumstances
surrounding the offense to determine if there is a relationship
between the judgment of conviction and Medicaid.  Had Congress
intended a different result, it would have used the phrase
conviction "for" or conviction "restricted to" instead of "related
to."  An examination of whether a conviction is "related to"
Medicaid necessarily involves an inquiry into the circumstances
underlying Petitioner's criminal conviction.

In his response to the I.G.'s proposed findings of fact and
conclusions of law, Petitioner stated that he "objects" to several
factual assertions of the I.G. relating to the circumstances
surrounding his conviction.  P.'s Response to I.G.'s Proposed
FFCLs, paragraphs 3, 4, 5, 9.  While Petitioner said he objected to
various factual assertions of the I.G., he did not specifically
identify the reasons for his objections.  Moreover, Petitioner did
not offer any evidence supporting an alternative view of the facts. 
On the contrary, Petitioner did not object to the authenticity or
relevance of any of the documents offered by the I.G.

Notwithstanding Petitioner's objections to the I.G.'s factual
assertions, the arguments set forth in Petitioner's brief did not
focus on factual disputes with the I.G.  Instead, Petitioner's
arguments addressed the legal conclusions to be drawn from the
facts.  Petitioner did not dispute the facts as set forth in the
exhibits offered by the I.G.  Instead, Petitioner argued that these
documents do not provide sufficient evidence to lead to the legal
conclusion that he was convicted of a criminal offense related to
the delivery of an item or service under Medicaid, within the
meaning of section 1128(a)(1) of the Act.

I disagree.  The evidence adduced by the I.G. in this case shows
that an investigation conducted by Financial Investigator Billy D.
Luther of the North Carolina Medicaid Investigations Unit revealed
that Petitioner, a dentist, owned and operated a professional
corporation that provided mobile dental services to nursing homes. 
Petitioner's corporation would bill Medicaid for dental services,
mostly consisting of examinations and prophylaxis.  Based on the
time spent and the number of patients for which the corporation
billed services, Investigator Luther determined that Petitioner
spent less than four minutes with each Medicaid recipient. 
Consultants stated that, in their opinion, in such a short period
of time Petitioner could not have provided the type of services for
which he billed Medicaid.  I.G. Ex. 6, I.G. Ex. 8.

Petitioner states that, when "faced with the full weight of the
resources of the State of North Carolina in investigating him for
alleged Medicaid irregularities," he chose to enter into a plea
bargain agreement.  P. Br., p. 4.  Petitioner agreed to plead
guilty to a one count misdemeanor charge of receiving stolen goods,
to pay restitution to Medicaid in the amount of $8,600.21 before
sentencing, and to pay a fine of $8,600.00 and court costs in full
at sentencing.  In exchange for this, the State of North Carolina
agreed not to prosecute Petitioner "for any other act relating to
the submission of claims to the N.C. Medicaid Program occurring
prior to the entry of the Plea."  I.G. Ex. 4.  Pursuant to this
plea bargain agreement, Petitioner pled guilty to receiving stolen
goods and judgment was entered against him.  I.G. Ex. 4, I.G. Ex.
5.

The Misdemeanor Statement of Charges to which Petitioner pled
guilty reads as follows:

     [Petitioner] did unlawfully and willfully receive a payment of
$18.63 from the North Carolina Medicaid Program which was included
as part of a reimbursement check for claim number 1091339609930
submitted by Nicholas J. Penna, D.D.S., P.A. to the North Carolina
Medicaid Program in reference to the alleged provision of a dental
service consisting of prophylaxis to Medicaid recipient Eva Cline
on October 27, 1991, said payment being the property of the North
Carolina Medicaid Program, valued at $18.63, which property was
stolen, taken, and fraudulently obtained by Nicholas J. Penna,
D.D.S., P.A. . . . under circumstances amounting to Medical
Assistance Provider Fraud in violation of N.C.G.S.   108A-63 . .
.

I.G. Ex. 1.  

I conclude that the evidence adduced by the I.G. establishes that
the criminal offense underlying Petitioner's conviction was related
to the delivery of an item or service under Medicaid.  Critical to
my conclusion is that Petitioner admits pleading guilty to the
allegations in the Misdemeanor Statement of Charges.  P. Br., p. 3. 
The charges to which Petitioner pled guilty assert that Petitioner
obtained money under circumstances amounting to Medical Assistance
Provider Fraud.  This document explicitly charges Petitioner with
fraudulently obtaining money from Medicaid as result of submitting
a claim for the "alleged provision of a dental service consisting
of prophylaxis" to a Medicaid recipient.  This document establishes
that the activity which resulted in Petitioner's criminal
conviction was the submission of a Medicaid claim which was, at
least in part, fraudulent.  The monies Petitioner obtained as a
result of this criminal activity constituted the "stolen goods"
referred to in the charge.

The terms of the plea bargain agreement provide additional evidence
that Petitioner's offense was related to the submission of a
fraudulent Medicaid claim.  By entering into a plea agreement,
Petitioner avoided prosecution of "any other act relating to the
submission of claims to the N.C. Medicaid Program."  The use of the
word "other" demonstrates that the act to which Petitioner pled
guilty also related to the submission of claims to Medicaid.  In
addition, the fact that Petitioner agreed to pay restitution to
Medicaid as part of his plea agreement is evidence that the conduct
underlying his conviction resulted in financial harm to Medicaid.

I find a very evident connection between Petitioner's offense and
the delivery of items or services under Medicaid.  It is
well-established in decisions of appellate panels of the
Departmental Appeals Board that a criminal conviction based on
filing fraudulent claims for reimbursement from Medicare or
Medicaid relates to the delivery of items or services under such
programs within the meaning of section 1128(a) of the Act.  Jack W.
Greene, DAB CR19 (1989), aff'd, DAB 1078 (1989), aff'd sub nom.
Greene v. Sullivan, 731 F.Supp. 835, 838 (E.D. Tenn. 1990).  I find
that the offense underlying Petitioner's conviction in this case --
intentionally submitting to Medicaid claims that misrepresented the
services provided -- similarly constitutes financial fraud related
to the delivery of Medicaid services.

III.  Petitioner's constitutional challenges to the exclusion are
without merit.

Petitioner argues that application of the mandatory exclusion
provisions to this case violates the Double Jeopardy Clause of the
United States Constitution because he has already been punished in
the criminal case, and the effect of his exclusion is so extreme as
to constitute a second punishment.  P. Br., p. 5.

The purpose of the minimum mandatory exclusion pursuant to 
sections 1128(a)(1) and 1128(c)(3)(B) is remedial, not punishment
or restitution.  The minimum mandatory exclusion provisions serve
to protect beneficiaries from an individual or entity whose
trustworthiness Congress has deemed questionable based on a
conviction of a program-related crime.  Federal courts have
specifically found that exclusions under section 1128 are remedial
in nature, rather than punitive, and do not violate the prohibition
against double jeopardy of the United States Constitution.  Greene
v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); Manocchio v.
Kusserow, 961 F.2d 1539 (11th Cir. 1992).  The Greene court noted
the "apt comparison between the exclusion remedy and professional
license revocations for lawyers, physicians, and real estate
brokers which have the function of protecting the public and have
routinely been held not to violate the double jeopardy clause." 
731 F. Supp. 838, 840.  In view of the remedial nature of the
exclusion, I reject Petitioner's argument that his exclusion
violates the Double Jeopardy Clause.

In addition, Petitioner points out that in the case of Syed
Hussaini, DAB CR193 (1992) the I.G. imposed a five-year permissive
exclusion under section 1128(b)(1) of the Act after a pharmacist
was convicted of conspiracy to commit Medicaid fraud in violation
of 18 U.S.C.   371. 3/  Petitioner asserts that, based on the
I.G.'s action there, he should also receive only a permissive
exclusion.  Petitioner argues that the "arbitrary imposition of
different types of sanctions upon Medicaid providers for closely
similar offenses" violates his constitutional right to due process
and equal protection of the law.  P. Br., p. 6.

I disagree.  Where, as here, an individual has been convicted of a
program-related offense, the law directs the I.G. to impose an
exclusion of not less than five years.  Even where the same
conviction could give rise to mandatory as well as permissive
exclusions, it is well settled that the I.G. must impose the
mandatory exclusion when the conviction falls within the meaning of
section 1128(a)(1).  Douglas Schram, R.Ph., DAB 1372, at 12 - 13
(1992).

I am not persuaded by Petitioner's argument that Hussaini 
is relevant to this proceeding.  The petitioner in Hussaini was
convicted under a different statute than Petitioner, and I assume
that the I.G. determined that the conviction did not fall within
the parameters of the mandatory exclusion provisions of section
1128.  Once that determination was made, the I.G. was free to
determine whether the conviction merited a permissive exclusion. 
Since the parties in Hussaini did not raise the issue of whether
the I.G. should have treated the petitioner's conviction as the
basis for a mandatory exclusion action, the I.G.'s choice to
proceed under the permissive exclusion authority was not subjected
to the scrutiny of the administrative law judge in Hussaini.

In this case, the I.G. made the determination that Petitioner's
conviction was governed by section 1128(a)(1).  Once that
determination was made, the I.G. had no discretion to impose
anything but a mandatory exclusion.  Niranjana B. Parikh, M.D., et
al., DAB 1334, at 7 (1992).  I conclude that in this case the I.G.
properly classified Petitioner's conviction as falling under the
minimum mandatory exclusion authority of sections 1128(a)(1) and
1128(c)(3)(B).  The law requires that Petitioner be excluded for at
least five years.  It is possible that the I.G. should have treated
the petitioner's criminal conviction in Hussaini as the basis for
a mandatory exclusion.  However, even if the I.G. misapplied the
law in that case, that does not invalidate the exclusion in this
case.

I see nothing unreasonable or inequitable in the I.G.'s exclusion
of Petitioner.  The I.G. is merely carrying out the specific
directive of section 1128 of the Act that a criminal conviction
related to the delivery of a Medicaid item or service mandates a
five-year exclusion.  There is no basis for concluding that
Petitioner's right to due process and equal protection of the law
was violated by the I.G.'s imposition of an exclusion under the
mandatory exclusion provisions of the Act in this case.    

IV.  A five-year exclusion is required in this case.

Petitioner argues that if an exclusion is warranted, it should be
reduced below five years due to mitigating circumstances. 
Petitioner points out that the misdemeanor to which Petitioner
pleaded guilty was the wrongful taking of $18.63, a small amount of
money.  Petitioner points out that he has fully complied with the
sentence imposed, including the payment of restitution.  P. Br., p.
7.

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act require the I.G.
to exclude individuals and entities from Medicare and Medicaid for
a minimum period of five years, when such individuals have been
convicted of a criminal offense related to the delivery of an item
or service under Medicare or Medicaid, within the meaning of
section 1128(a)(1) of the Act.

Since Petitioner was convicted of a criminal offense and it was
related to the delivery of an item or service under Medicaid,
within the meaning of sections 1128(a)(1) and (i) of the Act, the
I.G. was required by section 1128(c)(3)(B) of the Act to exclude
Petitioner for a minimum of five years.  Neither the I.G. nor an
administrative law judge has discretion to reduce the mandatory
minimum five-year period of exclusion.

                        CONCLUSION

Based on the evidence and the law, I conclude that Petitioner was
convicted of a criminal offense related to the delivery of an item
or service under Medicaid, within the meaning of section 1128(a)(1)
of the Act.  The five-year exclusion which the I.G. imposed and
directed against Petitioner was mandated by law.  Therefore, I
sustain the exclusion.

                                                         Joseph K.
Riotto
                         Administrative Law Judge       

1.     In this decision, I refer to all programs from which
Petitioner has been excluded, other than Medicare, as "Medicaid."

2.     In this Decision I will cite to Petitioner's responsive
brief as P. Br., p.    and to his response to the I.G.'s proposed
findings of facts and conclusions of law as P.'s Response to I.G.'s
Proposed FFCLs, paragraph
  .

3.     Section 1128(b)(1) permits exclusion for convictions of
criminal offenses relating to fraud, theft, embezzlement, breach of
fiduciary responsibility or financial abuse, if the offense was
committed either in connection with the delivery of a health care
item or service or with respect to a program, operated or financed,
at least partially, by federal, State, or local government.