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                              Chethan V. Byadgi, DAB CR5039 (2018)
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Chethan V. Byadgi, DAB CR5039 (2018)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Chethan V. Byadgi,
	(OI File No. 3-13-40250-9),
	Petitioner
	v.
	The Inspector General
Docket No. C-17-1133Decision No. CR5039March 14, 2018

        
              
    

      DECISION
Petitioner, Chethan V. Byadgi, was a physician who, until his license was indefinitely suspended, practiced medicine in the State of Pennsylvania.  He conspired to defraud the Medicare and Medicaid programs by submitting false claims.  He was convicted on felony counts of Medicaid fraud, theft by deception, and insurance fraud.  Based on these convictions, the Inspector General (IG) has excluded him for ten years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(1) of the Social Security Act (Act).  Petitioner concedes that he must be excluded for a minimum period of five years but challenges the length of his exclusion beyond that.
For the reasons discussed below, I find that the ten-year exclusion falls within a reasonable range.
Background
In a letter dated June 30, 2017, the IG advised Petitioner Byadgi that, because he had been convicted of a criminal offense related to the delivery of an item or service under
Page 2
Medicare or a state healthcare program, the IG was excluding him from participating in Medicare, Medicaid, and all federal health care programs for a period of ten years.  The letter explained that section 1128(a)(1) of the Act authorizes the exclusion.  IG Exhibit (Ex.) 1.
Petitioner timely requested review.
The IG has submitted its written arguments (IG Br.) and seven exhibits (IG Exs. 1-7).  In the absence of any objections, I admit into evidence IG Exs. 1-7.  Petitioner submitted a one-page written argument in the form of a letter (P. Br.) and some unmarked documents, most of which are already in the record as IG exhibits.  The IG also filed a reply brief.
I asked the parties whether an in-person hearing is necessary in order to resolve this case, and neither party indicated that it would be.  P. Br.; IG Br. at 9.  The parties also agree that Petitioner Byadgi was convicted of crimes related to the delivery of an item or service under Medicare or a state healthcare program and must therefore be excluded from program participation for at least five years.
Discussion
***Based on the aggravating factors and one mitigating factor, a ten-year exclusion is reasonable***.1
Section 1128(a)(1) mandates that the Secretary of Health and Human Services exclude an individual who has been convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  *See* 42 C.F.R. § 1001.101(a).
In this case, Petitioner Byadgi was licensed to practice medicine in the State of Pennsylvania.  IG Ex. 6 at 1.  With others, he conspired to defraud Medicare, Medicaid, and private insurers by billing them for services that were not provided as billed.  Specifically, services were performed by medical assistants and office personnel who lacked the proper education, training, and licenses to provide the services.  But Petitioner and his colleague billed the insurers, claiming that they had provided the services.  IG Ex. 5; IG Ex. 6 at 2.
Petitioner pled guilty in state court to one felony count of conspiracy to commit Medicaid fraud (62 Pa. Stat. § 1407(a)(12)); one felony count of theft by deception (18 Pa. Cons. Stat. § 3922(a)(1)); and one felony count of insurance fraud (18 Pa. Cons. Stat.
Page 3
§ 4117(a)(3)).  IG Ex. 2; IG Ex. 3 at 3-4; IG Ex. 5 at 2-3.  The court entered judgment against him on March 29, 2017.  IG Ex. 2.
The Court sentenced Petitioner to serve nine to 23 months in prison, followed by seven years probation, and to complete 1,000 hours of community service.  He was ordered to pay $99,094.53 in restitution to the Medicaid program and private insurance companies.  IG Ex. 2; IG Ex. 3 at 8-9.
Petitioner agrees that he must be excluded for at least five years.  Act § 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a); 1001.2007(a)(2); P. Br. at 1.2
  I now consider whether the length of the exclusion, beyond five years, falls within a reasonable range.
Among the factors that may serve as a basis for lengthening the period of exclusion are the four that the IG relies on in this case:  1) the acts resulting in the conviction, or similar acts, caused a government program or another entity financial losses of $50,000 or more; 2) the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; 3) the sentence imposed by the court included incarceration; and 4) the convicted individual 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 a basis for the exclusion.  42 C.F.R. § 1001.102(b).  The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion.
**Program financial loss (42 C.F.R. § 1001.102(b)(1))**.  Restitution has long been considered a reasonable measure of program losses.  *Jason Hollady, M.D. a/k/a Jason Lynn Hollady*, DAB No. 1855 (2002).  Here, the sentencing judge ordered Petitioner to pay $99,094.53 in restitution to the victims of his crimes – the Medicaid program and private insurers.  IG Ex. 2; IG Ex. 3 at 7-9.  Thus, Petitioner’s actions resulted in program financial losses roughly double the threshold amount for aggravation, which, by itself, justifies increasing the period of exclusion beyond the five-year minimum.3
**Duration of crime (42 C.F.R. § 1001.102(b)(2))**.  Petitioner’s criminal acts were committed over a period of more than two years – beginning February 1, 2012, and continuing until March 31, 2014.  IG Ex. 5 at 2-3.  The Departmental Appeals Board has sustained significant increases in the period of exclusion based on “wrongful acts [that]
Page 4
were committed for ‘slightly more’ than the one-year minimum standard.”  *Jeremy Robinson*, DAB No. 1905 at 12 (2004), *citing Donald A. Burstein, Ph.D.*, DAB No. 1865 at 12 (2003).
**Incarceration (42 C.F.R. § 1001.102(b)(5))**.  The criminal court sentenced Petitioner to a substantial period of incarceration – nine to 23 months.  IG Ex. 2.  While any period of incarceration justifies increasing the period of exclusion, the Board has repeatedly held that longer periods of incarceration are relevant in determining whether a period of exclusion is reasonable.  *Eugene Goldman, M.D., a/k/a Yevgeniy Goldman, M.D.*, DAB No. 2635 at 6 (2015).  Generally, the longer the jail time, the longer the exclusion, because a lengthy sentence evidences a more serious offense.  *See Brenda Mills, M.D*., *a/k/a Brenda Kluttz*, DAB CR1461 (2006), *aff’d,* DAB No. 2061 (2007) (finding that six months home confinement justifies increase in length of exclusion); *Jeremy Robinson*, DAB No. 1905 (characterizing a nine-month incarceration as “relatively substantial.”); *Jason Hollady, M.D.*, DAB No. 1855 at 12 (finding that a nine-month incarceration with work release justifies extending the exclusion period); *Stacy Ann Battle, D.D.S. & Stacy Ann Battle, D.D.S., P.C.*, DAB No. 1843 (2002) (finding that four months in a halfway house, followed by four months home confinement justifies lengthening the period of exclusion).
**Other adverse actions (42 C.F.R. § 1001.102(b)(9))**.  Based on the circumstances underlying this exclusion, the Pennsylvania State Board of Medicine indefinitely suspended Petitioner’s license to practice medicine.  IG Ex. 6.  The New York State Office of the Medicaid Inspector General excluded him from participating in that state’s Medicaid program, citing his conviction of a crime related to billing for medical care or services.  IG Ex. 7
**Mitigating factors**.  The regulations consider mitigating just three factors:  1) a petitioner was convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $5,000; 2) the record in the criminal proceedings demonstrates that a petitioner had a mental, physical, or emotional condition that reduced his culpability; and 3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed.  42 C.F.R. § 1001.102(c).
Petitioner does not cite any of these factors.  Rather, he claims that he served his jail sentence, paid restitution, and otherwise complied with the court’s orders.  He expects that his medical license will be reinstated in a year or so and insists that his attitudes and behaviors have changed.  The regulations do not include any of these as mitigating factors.
Finally, Petitioner claims that the state attorney general promised him a five-year exclusion.  In support, he submits one page from his plea agreement (unmarked).  But
Page 5
that plea agreement does not say that Petitioner’s exclusion would be limited to five years; it says that, as a condition of his plea agreement, Petitioner promises not to challenge his five-year exclusion from the Medicare and Medicaid programs.  In any event, the state attorney general has no authority to determine the length of the exclusion; that determination is reserved for the IG.  *See* 42 C.F.R. § 1001.1(b).
For more than two years, Petitioner conspired with others to defraud Medicaid and private insurers.  His felonious conduct cost these programs substantial amounts of money.  Because his crimes were so serious, the Court sentenced him to prison and ordered him to pay substantial restitution to the Medicaid program and private insurers, the Pennsylvania state licensing board revoked his license to practice medicine, and the Office of the New York Medicaid Inspector General excluded him from that program.  No mitigating factors offset these significant aggravating ones.  The IG thus reasonably determined that Petitioner poses a threat to program integrity.
Conclusion
The IG properly excluded Petitioner from participating in Medicare, Medicaid and other federal health care programs.  So long as the period of exclusion is within a reasonable range, based on demonstrated criteria, I have no authority to change it.  *Joann Fletcher Cash*, DAB No. 1725 at 7 (2000) (citing 57 Fed. Reg. 3298, 3321 (1992)).  I find that the ten-year exclusion falls within a reasonable range.

          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. I make this one finding of fact/conclusion of law. back to note 1
                      2. As noted below, under his plea agreement, Petitioner agreed not to challenge a five-year exclusion. back to note 2
                      3. Until February 13, 2017, a $5,000 program loss was considered an aggravating factor, but this amount has been increased. 82 Fed. Reg. 4100, 4103, 4112 (January 12, 2017). I apply the amount in effect at the time the IG imposed Petitioner’s exclusion (June 30, 2017). back to note 3 Back to top
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