Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Decision No. CR1619
Centers for Medicare & Medicaid
Services.

In the Case of: )
)

Windsor Manor Rehabilitation Center, — ) Date: June 29, 2007
)
Petitioner, )
)

-V.- ) Docket No. C-06-628

)
)
)
)

DECISION GRANTING MOTION FOR
SUMMARY DISPOSITION

| grant the motion of the Centers for Medicare & Medicaid Services (CMS) for summary
disposition in this case. Consequently, I sustain the remedy that CMS determined to
impose against Petitioner, Windsor Manor Rehabilitation Center, a denial of payment for
new admissions during a period that began on July 5, 2006 and which ended on July 7,
2006.

I. Background

Petitioner is a skilled nursing facility doing business in the State of California. It
participates in the Medicare program. Its participation in Medicare is governed by
sections 1819 and 1866 of the Social Security Act and by implementing regulations at 42
C.F.R. Parts 483 and 488.

Petitioner was surveyed for compliance with Medicare participation requirements on
April 14 and June 9, 2006 (April and June surveys). The surveyors found a total of 14
deficiencies at the April survey and one additional deficiency at the June survey.
Petitioner requested a hearing and the case was assigned to me for a hearing and a
decision.
4

‘The parties completed pre-hearing exchanges pursuant to which they submitted briefs and
exhibits that included the written direct testimony of proposed witnesses. CMS submitted
a total of 55 proposed exhibits, which it designated as CMS Ex. 1 - CMS Ex. 55.
Petitioner submitted a total of 54 proposed exhibits, which it designated as P. Ex. | - P.
Fx. 54. I scheduled an in-person hearing. Then, CMS moved for summary disposition
and Petitioner opposed the motion.

If. Issues, findings of fact and conclusions of law
A. Issues

The ultimate issue in this case is whether Petitioner failed to comply substantially with
one or more Medicare participation requirements during the July 5 - 7, 2006 period.
Regulations mandate that I sustain the denial of payment for new admissions that CMS
determined to impose if Petitioner manifested a deficiency or deficiencies during this
period. See 42 C.F.R. § 488.417(a)(1).

‘There is also a threshold issue in this case of whether it is appropriate to issue summary
disposition without holding an in-person hearing. Regulations governing hearings in
cases involving CMS do not provide explicitly for summary disposition in such cases.
However, administrative law judges and the Departmental Appeals Board have held that
summary disposition is appropriate in a case involving CMS where the criteria for
summary judgment set forth by Rule 56 of the Federal Rules of Civil Procedure are
satisfied.

Rule 56 provides that summary judgment may be imposed where there are no genuinely
disputed issues of material fact. Under Rule 56 a “material fact” is a fact which, if it
exists, may affect the outcome ofa case. A “genuinely disputed” material fact exists
when opposing parties advance different versions of an event. The concept of a genuine
dispute as to the facts is critical to understanding how summary judgment works. A fact
offered by a party is not in dispute simply because the opposing party asserts that it is in
dispute. In order for there to be a dispute as to the facts the opposing party must offer a
version of events that differs materially from the version offered by the moving party.

Furthermore, Rule 56 draws a distinction between facts and conclusions that are based on
facts. A disagreement between parties as to the meaning of facts is not an impediment to
summary judgment under Rule 56. The trier of fact always has the authority to draw
conclusions from facts, whether the case is disposed of by summary judgment, or after a
hearing. Thus, arguments about the meaning of facts — as opposed to disputes as to what
facts exist — constitute no impediment to granting summary judgment in a case.
3
B. Findings of fact and conclusions of law

| make findings of fact and conclusions of law (Findings) to support my decision in this
case. I set forth each Finding below as a separate heading. I discuss each Finding in
detail.

CMS premised its remedy determination in this case on its determination that Petitioner
manifested 14 deficiencies at the April survey and an additional deficiency in June. It is
not necessary that I address all or even most of the deficiencies that CMS found or even
all or most of those on which CMS based its motion for summary disposition. The
presence of even a single deficiency during the July 5 - 7, 2006 period justifies the
remedy of denial of payment for new admissions during that period. Consequently, I
address only three of the 15 deficiencies cited by CMS. With respect to each of these
deficiencies I find that CMS’s assertion of noncompliance is supported by the plain
meaning of the applicable regulation and by undisputed material facts.

1. The undisputed material facts establish that Petitioner failed to comply
substantially with the requirements of 42 C.F.R. § 483.15(h)(2).

The regulation at issue requires that a facility must provide housekeeping and
maintenance services necessary to maintain a sanitary, orderly, and comfortable interior.
CMS asserts that, at the April survey, the surveyors adduced facts that establish that
Petitioner was not complying substantially with this requirement. Specifically:

+ The surveyors observed personal care items such as breathing equipment, urine
collection cups, urinals, urine hats, and bedpans stored uncovered on bedside
tables, on the floor, and on the tops of toilets in communal bathrooms. CMS Ex. 5,
at3-5.

+ The uncovered storage of personal care items violated Petitioner’s own policy
governing the storage of such items. Petitioner’s policy required that personal
items be labeled and stored in a bedside cabinet or on a bathroom shelf. CMS Ex.
50, at 99.

' The fact that I do not address the other twelve deficiencies cited by CMS does
not mean that CMS would not prevail on one or more of these other deficiencies at a
hearing or even that CMS might not be entitled to summary disposition as to one or more
of them. However, it is unnecessary that I address them here because the presence of
even one deficiency during the July 5 - 7, 2006 period justifies the remedy of denial of
payment for new admissions.
4

+ The surveyors smelled strong odors of urine and feces in Petitioner’s facility.
They observed brown smears on residents’ toilets. CMS Ex. 5, at 5.

The foregoing facts, if not disputed, establish a violation of 42 C.F.R. § 483.15(h)(2).
The presence of odors of urine and feces in and of themselves are a basis for finding
noncompliance. No interpretation of the regulation would excuse a facility from
subjecting its residents to such odors. The storage of personal items uncovered and in
violation of Petitioner’s own personal item storage policy is a violation of the regulation
because such storage is neither sanitary nor orderly. CMS Ex. 50, at 99.

Petitioner makes the following arguments against summary disposition:

+ It asserts that only by imposing a “strict liability standard” of compliance would
the facts offered by CMS support a finding of noncompliance with the regulation.
Petitioner argues that it cannot be held responsible for every offensive sight,
sound, or smell on its premises. Petitioner’s response to CMS’s motion (response)
at 9. On the other hand, according to Petitioner, it cannot be required to restrain,
unduly isolate or control its incontinent residents’ movements to the extent that
there is never a misplaced item, foul odor, or a smudge on a toilet. /d.

+ There is a dispute as to the significance of the surveyors’ findings of items not
properly stored because CMS has not offered evidence establishing that these
items had been misplaced for any significant period of time or that they were
misplaced by facility staff or residents. Response at 10.

+ CMS has not made any allegation that the items observed by the surveyors were
not “sanitized as needed.” Response at 10.

* CMS has not proven that unlabeled items belonged to any particular resident.
Response at 11.

* Contrary to CMS’s allegations Petitioner in fact has a policy that provides for the
safe storage and labeling of residents’ bedside equipment. Response at 11.

+ The surveyors’ smelling urine and/or feces in the facility and their observations
of brown smears on a resident’s toilet demonstrate nothing more than the fact that
Petitioner houses elderly residents who, from time to time, have episodes of
incontinence. Response at I 1.
5

Petitioner disputes none of the facts relied on by CMS. Petitioner does not assert that the
surveyors’ findings are inaccurate or that the surveyors did not see what they contend to
have seen. Furthermore, Petitioner offers no facts of its own to counter those offered by
CMS. It has not offered any facts that would place CMS’s facts into a context that is
favorable to Petitioner’s position.

Petitioner secms to be contending — without offering a single fact to support its contention

that the surveyors’ findings constitute, at most, observations of a brief moment in time
when there happened to be disorder and foul odors in Petitioner’s facility. The heart of
Petitioner’s argument against summary disposition is that these observations cannot be
used to characterize the state of Petitioner’s facility because they do not depict a long-
term or ongoing situation. Ultimately, according to Petitioner, the facts presented by
CMS add up to nothing more than proof that incontinent residents are at times
incontinent. Moreover, according to Petitioner, it would be unreasonable to require
Petitioner to assure that its facility was free from the consequences of incontinence,
including stains and odors. It asserts that some odors and unsanitary conditions are
simply part of the business of taking care of incontinent residents.

| find this argument to be unpersuasive. The facts presented by CMS are, to be sure, a
snapshot of Petitioner’s operation. That snapshot establishes both disorder and unsanitary
conditions at the facility. It is entirely reasonable to conclude from these facts that
problems with sanitation and disorder typified Petitioner’s operation. Moreover, it is the
only reasonable conclusion that [ may draw based on the undisputed material facts
because Petitioner offered no facts to suggest that anything else is the case. Nor has
Petitioner suggested that, somehow, a hearing would produce evidence that contradicts in
any respect the facts that CMS presented in support of its motion.

If Petitioner wanted to argue that the facts offered by CMS depict aberrant circumstances,
it had the burden of offering something affirmative to counter those facts. For example,
if Petitioner wanted to contend that episodes of incontinence and their aftereffects are
simply momentary events that are attended to immediately and efficiently by its staff, it
could offer testimony or documentary evidence showing how the staff responds to such
episodes. But, in response to CMS’s motion, Petitioner offered nothing of the kind.
Petitioner has offered nothing -- literally, no facts whatsoever — that would serve as an
impediment to concluding that the disorder and lack of sanitation observed by the
surveyors was an ongoing problem.

Nor am I persuaded by Petitioner’s argument that odors, stains, and a certain level of
poor sanitation are inevitable when it comes to caring for incontinent residents. The
regulation does not build in a margin of error when it comes to caring for incontinent
6

residents. Obviously, unfortunate accidents will from time to time occur in a facility that
cares for the incontinent. But, the regulation presumes that such accidents will be
attended to immediately by staff and that there will be no lingering odors or residues. The
uncontradicted facts offered by CMS are strong proof that Petitioner did not live up to
this standard.

Petitioner’s assertions that CMS has failed to show that items were not “sanitized as
needed” is an unreasonable characterization of what CMS’s burden is in this case. CMS
does not have to account for every possible fact scenario in order to prevail here. Its
burden is to present a set of facts that show a failure by Petitioner to comply with a
participation requirement. It is Petitioner’s obligation to offer facts that would negate or
neutralize those presented by CMS. Petitioner has the obligation to show that it
“sanitizes” items as needed if it contends that such action is a reasonable way to assure
that residents are provided with clean and safe incontinence products. But, Petitioner has
offered no facts to show that it takes such action.

Petitioner’s assertion that CMS failed to offer facts to show that unlabeled products
belong to a particular resident similarly lacks merit. First, it is unclear to me why having
such products labeled or unlabeled matters in the context of CMS’s noncompliance
allegations. There is no dispute that these products were being used to provide care to *
residents. And, Petitioner has offered nothing to dispute the facts offered by CMS
showing that these products were stored in an unsafe and potentially unsanitary manner.
Residents might be exposed to even greater health hazards if CMS were to offer facts
showing that Petitioner’s staff commingled these products and used them interchangeably
on different residents without properly sanitizing them. But, that allegation is not
necessary to CMS’s case.

Petitioner’s assertion that it has a policy for safe storage and labeling of residents’ bedside
equipment begs the question of its compliance. CMS is not alleging that Petitioner lacked
such a policy. To the contrary, CMS offered undisputed facts that Petitioner violated its
storage and labeling policy.

2. The undisputed material facts establish that Petitioner failed to comply
substantially with the requirements of 42 C.F.R. § 483.25(h)(1).

The applicable regulation mandates that a facility ensure that its resident environment
remains as free of accident hazards as possible. The regulation’s intent is clear. It
requires a participating facility to eliminate from its physical plant all known or
foreseeable hazards that might pose a threat of injury to residents. Such hazards include
defective or poorly maintained equipment and access to locations that might prove
7

dangerous to residents. CMS Ex. 52, at 80. A facility must take into account the physical
and mental conditions of its residents in researching and eliminating hazards. Residents
of skilled nursing facilities are by definition impaired individuals, often having severe
mental and/or physical handicaps. Environmental factors which might pose minimal
danger to young and healthy individuals could be life-threatening to nursing facility
residents. Consequently, each facility must exercise extraordinary vigilance to assure that
its residents are housed safely.

CMS relies on the following fact assertions to support its argument that I should enter
summary disposition against Petitioner for failing to maintain a hazard-free facility:

* The surveyors who conducted the April survey found that one of the resident’s
rooms (Room 101B) had poorly maintained bedside furniture equipment and
splintered door frames. CMS Ex. 42. Additionally, they found that in Room 109
there was a splintered and rough overbed table. None of the broken furniture had
been replaced by Petitioner in accordance with its policy. CMS Ex. 50, at 99.

+ At the April survey a surveyor observed an unsecured outdoor chemical storage
locker that residents could obtain access to through a nearby unlocked door.
Petitioner’s maintenance supervisor told the surveyor that the storage locker
should have been locked. CMS Ex. 41.

‘The conclusion that I draw from these facts, if there is nothing to contradict them, is that
Petitioner’s premises were not free from accident hazards. The risk of exposure to
chemicals is particularly evident here, in a facility which houses frail and demented
individuals.

In response to CMS’s motion Petitioner asserts the following:

+ The surveyors’ findings that pieces of furniture were rough or splintered does
not automatically qualify the furniture as broken or unsafe. Response at | 2.
According to Petitioner, there are no facts showing that a resident ever complained
about the furniture or that the furniture was in a location that was likely to come
into contact with residents’ skin. Petitioner argues also that CMS did not prove
that Petitioner failed promptly to repair the broken furniture when its presence was
brought to Petitioner’s attention. /d. .
8

* CMS has not offered facts showing for how long the chemical storage locker
was unlocked nor has CMS shown that Petitioner’s staff was unaware of the open
locker. Response at 12. Also, according to Petitioner, the facts offered by CMS
do not suggest that residents had access to the open locker or that the locker posed
a threat to residents’ safety. /d.

Petitioner also asserts that there are disputed material facts. It argues that, contrary to
CMS’s assertions, Petitioner’s policy governing replacement of broken or damaged items
does not cover replacement of broken or splintered furniture. Response at 13. It argues
also that there is a “triable issue of fact” as to whether the wear and tear described by
surveyors demonstrated that furniture needed to be replaced. With respect to the
unlocked storage locker, Petitioner asserts that CMS concedes that the locker was
outdoors and out of Petitioner’s common areas, thereby again raising a triable issue of
fact as to whether the locker posed a hazard.”

I find that none of these arguments serve as an impediment to granting summary
disposition. To begin with, Petitioner does not challenge any of the fact findings made by
the surveyors. It does not dispute that there were rough and splintered furniture and door
frames in residents’ rooms. Nor does it dispute that there was an unlocked chemical
storage locker on its premises. And, it says nothing about the surveyors’ findings that
residents had access to the locker through an unlocked door.

Nor has Petitioner offered any facts of its own to challenge CMS’s fact assertions. For
cxample, it has not offered facts showing that, contrary to the surveyors’ finding,
residents did not have access to Petitioner’s unlocked chemical storage locker. Neither
has it offered any facts to show that furniture and door frames were not, in fact, rough and
splintered.

Furthermore, the arguments offered by Petitioner consist essentially of speculation about
possible scenarios that are simply unsupported by any facts. There is nothing to show that
Petitioner’s staff promptly repaired broken furniture and door frames. Nor has Petitioner
advanced any facts to show that Petitioner’s staff was aware of the unlocked chemical
storage locker and took actions to protect residents from the unlocked locker.

’ Petitioner asserts also that there is a fact dispute concerning residents’ access to
an oxygen tank storage area. Response at 13. However, resident access to the oxygen
tank storage area was not a basis for CMS’s motion for summary disposition concerning
Petitioner’s noncompliance with 42 C.F.R. § 483,25(h)(1).
9

Petitioner’s assertions notwithstanding, the only reasonable conclusion that I can draw
from the unchallenged facts presented by CMS is that splintered furniture and door
frames in residents’ rooms posed a hazard to residents. An overbed table, for example, is
an object that a resident would come in contact with more or less constantly. Similarly, a
splintered door frame would pose a risk to a resident each time that resident passed
through it. And, Petitioner is simply wrong in arguing that CMS failed to offer facts
showing that residents had access to the unlocked chemical storage locker. The
unchallenged facts offered by CMS are that residents had access to the locker through an
unlocked door.

3. The undisputed material facts establish that Petitioner failed to comply
substantially with the requirements of 42 C.F.R. § 483.60(a).

The applicable regulation requires that a facility:

provide pharmaceutical services (including procedures that assure the
accurate acquiring, receiving, dispensing, and administering of all drugs and
biologicals) to meet the needs of each resident.

CMS contends that Petitioner failed to comply with this requirement based on the
following facts:

* During the April survey a surveyor observed ina refrigerator three expired
Novalog flex pen prefilled syringes of insulin that had been prescribed for one of
Petitioner’s residents who is identified as Resident # 14. The expiration date for
the pens was March 2006 and one of the pens had been opened and used. CMS.
Ex. 39, at 22-23; CMS Ex. 5, at 31- 32. No other supplies of insulin for the
resident were present.

* Novalog insulin had been prescribed to Resident # 14 for administration in
March and April 2006. Between April 1 and April 8, 2006 Resident # 14 was
administered Novalog insulin at least once, and, on occasion, twice daily. CMS
Ex. 14, at 2.

+ The surveyor observed an additional vial of insulin, prescribed to another
resident, Resident # 2, that had been opened on March 2, 2006, more than 30 days
before the April survey. The surveyor was told by a nurse on Petitioner’s staff that
Petitioner’s policy was to dispose of insulin 30 days after it is opened. CMS Ex.
39, CMS Ex. 14, CMS Ex. 49, at 43.
10

* Petitioner’s policy required that expired drugs be stored separately, away from
use, until destroyed or returned to the provider. CMS Ex. 25, at 11. However,
Petitioner was not storing the expired Novalog insulin away from other drugs.

+ Manufacturer’s instructions for Novalog require that it be discarded after 28
days. The manufacturer also instructs that an opened Novalog flex pen should not
be refrigerated. www.novonordisk-us.com; CMS Ex. 34, at 4.

These facts, if unchallenged, establish a failure by Petitioner to comply with the
“requirements of the regulation. They show that Petitioner: retained insulin after its
cxpiration date; stored expired insulin commingled with other, non-expired medications;
and improperly refrigerated opened syringes of insulin. Additionally, the facts support
only one conclusion concerning Petitioner’s administration of insulin to Resident # 14,
and that is that the resident was administered expired and improperly stored insulin. That
is because there were no insulin supplies present for the resident that were unexpired.

Petitioner disputes none of these facts. [t does not deny that it retained expired insulin,
that it refrigerated opened insulin contrary to the manufacturer’s directions, or that it
commingled expired with unexpired drugs. And, significantly, it offers no facts to refute
the conclusion that Resident # 14 received expired insulin. It did not allege, for example,
that there were other supplies of insulin maintained separately for the resident.

Petitioner makes the following arguments in opposition to CMS’s motion for summary
disposition on this deficiency:

+ There is no evidence that Resident # 14 received expired insulin or that the
insulin maintained by Petitioner for the resident had degraded to the extent that it
was ineffective. Response at 21. Further, there is no documentation that Resident
# 14 actually received insulin from the opened syringe. /d. at 22.

+ There is no evidence that Resident # 2 was administered insulin after its
expiration date. Nor is there evidence that expired insulin that had been prescribed
for Resident # 2 degraded. Response at 22.

* The regulation governs the “acquiring, receiving, dispensation, and
administration of drugs” and not their storage. Consequently, there is no basis for
finding Petitioner deficient even if all of CMS’s allegations are true. Response at
22.
11

| find these arguments to be unpersuasive. First, and as I discuss above, the only
reasonable conclusion that one may draw from the undisputed facts offered by CMS is
that Resident # 14 was receiving expired insulin. That is because the surveyors found no
supply of insulin for the resident other than the expired Novalog syringes and because
Petitioner has offered no facts to show that it maintained an additional supply. Second, it
is not CMS’s burden to prove that the expired insulin had degraded to the extent that it
was ineffective. The only reasonable conclusion one may draw from the fact that
Petitioner was administering expired insulin to a resident is that it was administering a
medication in a way that contradicted the manufacturer’s instructions. That is, on its face,
a failure by Petitioner to administer medication in a way that is consistent with its
residents’ needs. Similarly, the fact that Petitioner stored expired insulin for another
Resident, Resident # 2, leads inescapably to the conclusion that it was administering
expired insulin to this resident. I note also that Petitioner has offered no facts to counter
CMsS’s allegations that it was refrigerating opened insulin contrary to the manufacturer’s
instructions.

| disagree with Petitioner’s argument that CMS’s allegations, even if true, do not amount
to a failure to comply with regulatory requirements. CMS does not allege only that
Petitioner stored medications improperly. It has presented undisputed facts showing that
it administered insulin that had been stored improperly. That practice is covered by the
explicit language of the regulation at issue. Moreover, I find that the language of the
regulation is sufficiently broad to extend to improper storage and maintenance of drugs
because storage of medications is an essential element of the process by which
medications are administered and dispensed.

4. The only reasonable conclusion that I may draw from the undisputed
material facts is that Petitioner’s noncompliance with 42 C.F.R.
§§ 483.15(h)(2), 483.25(h)(1), and 483.60(a) persisted until July 7, 2006.

Petitioner argues that summary disposition is inappropriate because CMS:
fails completely to offer any evidence of . . . whether any of the
acts/omissions of purported noncompliance cited during the April survey
continued through July 5, 2006, the date of the imposition of . . . [the

remedy of denial of payment for new admissions].

Response at 2.
12

However, CMS has no burden of coming forward with facts showing a continuing state of
noncompliance after the April survey. A finding of noncompliance by a facility
establishes a presumption of continuing noncompliance until CMS determines that the
facility has re-attained compliance or until the facility proves by the preponderance of the
evidence that it has done so. Here, Petitioner has offered no facts to show that it
corrected its noncompliance with the three participation conditions that I discuss at
Findings 1, 2, and 3 of this decision, prior to July 7, 2006, the date on which CMS
determined that Petitioner had re-attained compliance.’

/s/

Steven T. Kessel
Administrative Law Judge

‘ If Petitioner corrected one or two of the three deficiencies prior to July 7 the
remaining uncorrected deficiency would, standing alone, justify imposition of denial of
payment for new admissions.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Colonial Oaks Guest Care Center, Date: June 29, 2007

Petitioner,

Docket No. C-07-172
Decision No. CR1618

-V.-

Centers for Medicare & Medicaid
Services.

DECISION

| consider once more whether a long-term care facility has a right to a hearing when the
Centers for Medicare & Medicaid Services (CMS) withdraws the enforcement remedies
provided for in 42 C.F.R. § 488.406. I conclude that the facility is not entitled to a
hearing and grant CMS’s motion to dismiss.

Petitioner has no right to a hearing if CMS has not imposed a remedy.'

Petitioner, Colonial Oaks Guest Care Center, is a skilled nursing facility located in
Bossier City, Louisiana, that is certified to participate in the Medicare and Medicaid
programs as a provider of services. In a letter dated December 21, 2006, Petitioner asked
to appeal deficiencies cited during a September 21, 2006 survey conducted by the
Louisiana Department of Health and Hospitals (State Agency). Petitioner acknowledges
that CMS has withdrawn all remedies initially proposed, and recognizes that, by a long
line of cases, the Departmental Appeals Board has ruled that, once CMS rescinds those
remedies, Petitioner no longer has a hearing right.

' There being no dispute of fact in this case, | make this one conclusion of law.
2

Petitioner asks that I reconsider this position. Citing the Board’s decision in Desert
Knolls Convalescent Hospital, DAB No, 1769 (2001), Petitioner points out that facilities
are entitled to review where agency findings of substandard quality of care result in the
loss of approval to provide nurse aide training. Petitioner suffered no such loss, but
argues that it has been comparably damaged by the secondary consequences of the survey
findings: prejudicing its ability to defend itself in potential civil litigation; increasing its
liability insurance rates; and compromising its ability to market its services.

I do not doubt that, even where CMS declines to impose a penalty, findings of substantial
noncompliance may damage a facility in collateral ways. However, this does not create
jurisdiction for me to review those findings. The hearing rights of a long-term care
facility are established by federal regulations at 42 C.F.R. Part 498. A provider
dissatisfied with CMS’s initial determination is entitled to further review, but
administrative actions that are not initial determinations are not subject to appeal. 42
C.F.R. § 498.3(d). The regulations specify which actions are “initial determinations” and
set forth examples of actions that are not. A finding of noncompliance that results in the
imposition of a remedy specified in 42 C.F.R. § 488.406 is an initial determination for
which a facility may request an administrative law judge (ALJ) hearing. 42 C.F.R. §
498.3(b)(13). Unless the finding of noncompliance results in the imposition of a
specified remedy, however, the finding is not an initial determination. 42 C.F.R. §
498.3(d)(10)(ii). Where, as here, CMS does not impose a remedy, Petitioner has no
hearing right because no determination that is subject to a hearing exists. See, Lakewood
Plaza Nursing Center, DAB No. 1767 (2001); Schowalter Villa, DAB No. 1688 (1999).

In Desert Knolls, the Board found a right to hearing not because the penalty imposed was
so onerous, but because the regulations include among the list of appealable initial
determinations the finding of substandard quality of care that results in the loss of
approval for nurse aide training programs. DAB No. 1769, at 2; 42 C.F.R. §
498.3(b)(15); see also 64 Fed. Reg. 39,934, 39,937 (July 23, 1999).

CMS has imposed no remedy; consequently, Petitioner has no right to an ALJ hearing.
An ALJ may dismiss a hearing request where a party has no right to a hearing. 42 C.F.R.
§ 498.70(b). I therefore grant CMS’s motion to dismiss and order this case dismissed.

/s/

Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Pamela Diane Eaddy, R.N., ) Date: June 26, 2007

)
Petitioner, )
)

-V.- ) Docket No. C-06-688

) Decision No. CR1617
The Inspector General. )
)

DECISION

Pursuant to section 1 128(b)(4) of the Social Security Act (Act), the Inspector General
(I.G.) has excluded Petitioner, Pamela Diane Eaddy, from participation in Medicare,
Medicaid, and all federal health care programs until she obtains a valid California nursing
license. Petitioner appeals. The I.G. argues that Petitioner’s appeal should be dismissed
as untimely filed. I agree. Moreover, even if she were entitled to review, Petitioner’s
California nursing license was revoked for reasons bearing on her professional
competence and performance, so the I.G. appropriately excluded her from program
participation.

Discussion

In a letter dated June 28, 2002, the I.G. advised Petitioner that she was excluded from
participation in Medicare, Medicaid, and all federal health care programs because her
license to provide health care in the State of California had been revoked, suspended or
otherwise lost or was surrendered while a formal disciplinary proceeding was pending
before a state licensing authority for reasons bearing on her professional competence,
professional performance, or financial integrity. Attached to the letter was a one page
statement of additional information, which includes notice of Petitioner’s right to request
a hearing before an administrative law judge (ALJ) and says that such request “must be
made in writing within 60 days of your receiving” the exclusion letter. [.G. Ex. 1, at 2.
7
Petitioner filed her hearing request on September 18, 2006, more than four years after the
filing deadline had passed. The 1.G. has moved to dismiss the hearing request because it
is untimely.

The I.G. has submitted five exhibits (1.G. Exs. 1-5). Petitioner attached to her submission
a number of documents, some of which are marked as exhibits, but the markings are
confusing and do not conform to Civil Remedics procedures. Petitioner’s documents
have therefore been re-marked as Petitioner's exhibits (P. Exs.) 1-9. | have admitted into
evidence 1.G. Exs. 1-5 and P. Exs. 1-9.

1. Because Petitioner did not timely file her hearing request, I have no
alternative but to dismiss it pursuant to 42 C.F.R. § 1005.2(e)(1).'

The regulations that govern these proceedings grant me virtually no discretion. An
aggrieved party must request a hearing within sixty days after receiving the notice of
exclusion. 42 C.F.R. §§ 1001.2007(b); 1005.2(c). Petitioner is presumed to have
received the notice five days after the its date “unless there is a reasonable showing to the
contrary.” 42 C.F.R. § 1005.2(c). During the prehearing conference call in this matter,
Petitioner claimed that she moved to New York and did not reccive the I.G. notice letter,
which was mailed to her California address. Order and Schedule for Filing Briefs and
Documentary Evidence (November 13, 2006).

In its brief, the 1.G. raises the issue of timeliness, but Petitioner’s written submissions are
virtually silent on the issue. She offers little evidence to support her contention that she
did not receive the notice letter, listing only a couple of California addresses (on page 8 of
her Response Brief) and claiming to have moved from the Atherton Avenue address,
where the I.G.’s notice letter was sent, in 2000. P. Exs. 8, 9. She does not mention a
move to New York.

I have carefully reviewed all of her exhibits, and find one additional potentially relevant
submission, an unsigned, unauthenticated document that appears to be on Time Warner
Cable letterhead, with a New Jersey business address. It is dated April 6, 2007, and states
that Petitioner had service with Time Warner from June 15, 2002 to June 30, 2004. P. Ex.
4.

' | make findings of fact/conclusion of law to support my decision. I set forth
cach finding, in bold and italics, as a separately numbered heading.
3

| find that this evidence falls short of establishing the “reasonable showing” necessary to
overcome the presumption that Petitioner timely received the I.G. notice. And the
regulations specify that the ALJ “will dismiss” where a petitioner’s hearing request is not
timely filed. 42 C.F.R. § 1005.2(e)(1). I understand “will dismiss” to be inflexible — it
affords me no discretion to waive a late filing or to grant an extension of time in which to
file. See Sharon Anderson, D.P.M., DAB CR793, at 3 (2001), aff'd, DAB No. 1795
(2001).

2. Because the state licensing authority suspended Petitioner’s nursing
license for reasons bearing on her professional competence or
performance, the I.G. may appropriately exclude her from participation
in Medicare, Medicaid, and other federally funded health care programs.

Even if her claim were otherwise reviewable, Petitioner could not prevail. The statute
authorizes the Secretary to exclude from participation in any federal health care program
an individual whose license to provide health care “has been revoked or suspended by any
State licensing authority” for reasons bearing on the individual’s “professional
competence, professional performance, or financial integrity.” Act §1128(b)(4)(A). See
also 42 C.F.R. § 1001.501.

According to the I.G., Petitioner’s California nursing license was revoked effective
October 28, 2001, based on charges that she tested positive for cocaine while working in
the emergency department of a medical center and that she improperly withdrew 75
milliliters of Maperidine (Demerol) from the Emergency Department, for a patient who
did not exist. The Board of Registered Nursing, Department of Consumer Affairs,
determined that such conduct was “unprofessional.” I.G. Exs. 2, 3.

Petitioner does not deny the Board’s actions, but argues that her New York nursing
license is in good standing. She also complains that the positive test results were in error,
that she was not able to defend herself before the state board because of difficulties with
her attorney(s), and that she was not able to appeal the license revocation. As the I.G.
correctly observes, however, I am bound by the state board’s final determination. Where,
as here, an exclusion is based on the existence of a determination made by another
governmental agency, the basis for the underlying determination is not reviewable.

42 C.F.R. § 1001.2007(d); Roy Cosby Stark, DAB No. 1746 (2000). Iam required to
determine the reasons for the state board’s actions, but not whether its reasoning was
valid. Here, the state board unquestionably revoked Petitioner’s nursing license because
of her professional competence and performance. | must therefore sustain the exclusion.
4

3. The exclusion period may not be less than the period during which
Petitioner’s medical license is revoked.

Neither | nor the I.G. have much discretion in determining the duration of an exclusion
under section 1128(b)(4) of the Act, since that duration is set by statute. For a person
excluded under section 1 128(b)(4) of the Act, the statute requires that the period of
exclusion “shall not be less than the period during which the individual's or entity’s
license ... is... revoked.” Act § 1128(c)(3)(E). I therefore have no authority to change
the length of the exclusion period. Tracey Gates, R.N., DAB No. 1768 at 9 (2001).

Conclusion

For the above reasons, I dismiss Petitioner’s hearing request as untimely pursuant to
42 CFR. § 1005.2(e)(1).

/s/

Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Corpus Christi Nursing & )
Rehabilitation (CCN:67-6107), ) Date: June 26, 2007

)
Petitioner, )
)

-V.- ) Docket No. C-07-302

) Decision No. CR1616
Centers for Medicare & Medicaid )
Services. )
)

DECISION DISMISSING
REQUEST FOR HEARING

In this case, the Centers for Medicare & Medicaid Services (CMS) has moved to dismiss
the hearing request of Petitioner, arguing that all remedies have been rescinded, and thus,
Petitioner has no right to a hearing. Petitioner does not oppose this motion. I therefore
grant CMS’s motion to dismiss pursuant to 42 C.F.R. § 498.70(b).

I. Background

Petitioner, Corpus Christi Nursing & Rehabilitation, is a skilled nursing facility located in
Corpus Christi, Texas, certified to participate in the Medicare and Medicaid programs as
a provider of services. On September 29, 2006, the Texas Department of Aging and
Disability Services (State Survey Agency) completed a Health Safety Code Survey of
Petitioner and found noncompliance. P. Ex. A. In a notice letter dated January 10, 2007,
CMS informed Petitioner that it would impose a Civil Monetary Penalty (CMP) of
$2250.00. fd. Petitioner filed its request for a hearing on March 8, 2007. On April 10,
2007 CMS notified Petitioner that the CMP was rescinded. (CMS Ex. 2).
2

On June 1, 2007, CMS filed its motion to dismiss. By letter dated June 11, 2007,
Petitioner advised me that it did not oppose the motion to dismiss.

II. Discussion

The hearing rights of a long-term care facility are established by federal regulations at 42
C.F.R. Part 498. A provider dissatisfied with CMS’s initial determinations is entitled to
further review, but administrative actions that are not initial determinations are not
subject to appeal. 42 C.F.R. § 498.3(d). The regulations specify which actions are
“initial determinations” and sets forth examples of actions that are not. A finding of
noncompliance that results in the imposition of a remedy specified in 42 C.F.R. § 488.406
is an initial determination for which a facility may request an administrative law judge
(ALJ) hearing. 42 C.F.R. § 498.3(b)(13). No right to a hearing exists pursuant to 42
C.F.R. § 498.3(b)(13), unless CMS actually imposes one of the specified remedies.
Schowalter Villa, DAB No. 1688 (1999). Where CMS rescinds its remedy determination,
Petitioner no longer has a right to a hearing. Fountain Lake Health & Rehabilitation,
Inc., DAB No. 1985 (2005) and cases cited therein.

The April 10, 2007 letter from CMS to Petitioner clearly states that the remedies were
rescinded. (CMS Ex. 2).

II. Conclusion

CMS has rescinded its remedy determination, and consequently, Petitioner no longer has
a right to an ALJ hearing. An ALJ may dismiss a hearing request where a party has no
right to a hearing. 42 C.F.R. § 498.70(b). Accordingly, I order that this case be
dismissed.

/s/

Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

)
In the Case of: )
) Date: June 21, 2007
Ijeoma O. Orafu, )
a.k.a., Ijeoma O. Orafu-Tiggs, )
) Docket No. C-07-110
Petitioner, ) Decision No. CR1615
)
-V.- )
)
The Inspector General. )
)
DECISION

Petitioner, Ijeoma O. Orafu, a.k.a., Ijeoma O. Orafu-Tiggs, is excluded from participation
in Medicare, Medicaid, and all other federal health care programs pursuant to section
1128(b)(4)(A) of the Social Security Act (the Act) (42 U.S.C. § 1320a-7(b)(4)(A)),
effective November 20, 2006, because her license to provide health care as a registered
nurse in the State of Ohio was suspended by the Ohio Board of Nursing, for reasons
bearing upon her professional competence, professional performance, or her financial
integrity. There is a proper basis for exclusion. Petitioner’s exclusion for not less than
the period during which her state license is suspended is required by the Act.” Act

§ 1128(c)(3)(E) (42 U.S.C. § 1320a-7(c)(3)(E)).

* Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only
after the period of exclusion expires. Reinstatement is not automatic upon completion of
the period of exclusion.
I. Background

The Inspector General for the Department of Health and Human Services (the I.G.)
notified Petitioner by letter dated October 31, 2006, that she was being excluded from
participation in Medicare, Medicaid, and all federal health care programs pursuant to
section 1 ]128(b)(4) of the Act for not less than the period that her license is revoked,
suspended, or otherwise lost or surrendered.

Petitioner timely requested a hearing by letter dated November 17, 2006. The case was
assigned to me for hearing and decision on November 27, 2006. On January 17, 2007, I
convened a prehearing telephonic conference, the substance of which is memorialized in
my Order of January 18, 2007. The parties agreed during the prehearing conference that
this matter may be resolved on the documentary evidence and briefs of the parties and
they waived the right to an in-person hearing for the taking of testimony.

The [.G. filed its opening brief (I.G. Brief) and exhibits (I.G. Ex.) 1 through 5 on March
5, 2007. Petitioner filed her response brief (P. Brief) and exhibits (P. Ex.) | through 5 on
April 20, 2007. On May 9, 2007, the I.G. waived filing a reply brief. No objections have
been made to the admission and my consideration of any of the offered exhibits and all
are admitted.

I. Discussion
A. Findings of Fact

The following findings of fact are based upon the uncontested and undisputed assertions
of fact in the pleadings and the exhibits admitted. Citations may be found in the analysis
section of this decision if not included here.

1. Petitioner entered a Consent Agreement with the Ohio Board of Nursing effective
March 17, 2000, in lieu of suspension of her nursing license, after admitting that
she failed to check a patient’s identification band which resulted in the
administration of the wrong medication and death of the patient. P. Brief at 3-4.

2. The March 2000 Consent Agreement limited Petitioner’s work activities as a
Registered Nurse (RN) and required that she inform employers of the agreement.
P. Brief at 4.
3

Petitioner entered an Addendum to the Consent Agreement with the Ohio Board of
Nursing effective November 19, 2004, in lieu of suspension of her nursing license,
after she admitted to previously undisclosed nursing practice violations and to
giving false statements to the Ohio Board. P. Brief at 3-4.

The Addendum to the Consent Agreement placed additional restrictions on her
license and required that she work only under supervision. P. Brief at 4.

Petitioner admits that she violated the terms of both the Consent Agreement and
the Addendum by failing to notify employers of the Agreement with the Ohio
Board of Nursing; by working shifts without supervision; and by failure to report
to the Ohio Board. P. Brief at 4.

On March 17, 2006, the Ohio Board of Nursing suspended Petitioner’s license
indefinitely but for no less than three years. P. Brief at 5; P. Ex. 5; 1.G. Ex. 5.

On October 31, 2006, the I.G. notified Petitioner that she was being excluded from
participation in Medicare, Medicaid, and all federal health care programs pursuant
to section | 128(b)(4) of the Act until such time as she regained her Ohio nursing
license. P. Ex. 1; I.G. Ex. 1.

Petitioner requested a hearing by letter dated November 17, 2006.

Petitioner’s nursing license was suspended by the Ohio Board of Nursing for
reasons bearing upon her professional performance and professional competence.

B. Conclusions of Law
Petitioner’s request for hearing was timely and I have jurisdiction.

There is a basis for Petitioner’s exclusion pursuant to section | 128(b)(4)(A) of the
Act.

Pursuant to section | 128(c)(3)(E) of the Act, the minimum period of exclusion
under section 1 128(b)(4) is not less then the period during which her state license
is revoked, suspended, or surrendered and is presumptively reasonable. See also
42 C.F.R. § 1001.501(b)(1).
C. Issues

The Secretary of the Department of Health and Human Services (the Secretary) has by
regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and,
Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).
D. Law Applicable

Petitioner’s right to a hearing by an Administrative Law Judge (ALJ) and judicial review
of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C.

§ 1320a-7(f)). Petitioner’s request for a hearing was timely filed and I do have
jurisdiction.

Pursuant to section 1 128(b)(4)(A) of the Act, the Secretary may exclude from
participation in Medicare, Medicaid, and all federal health care programs, any individual
whose license to provide health care is revoked or suspended by any state licensing
authority for reasons bearing upon the individual’s professional competence, professional
performance, or financial integrity. See also 42 C.F.R. § 1001.501(a)(1).

E. Discussion

1. There is a basis for Petitioner’s exclusion pursuant to section
1128(b)(4)(A) of the Act.

The I.G. cites section 1 128(b)(4) of the Act as the basis for Petitioner’s mandatory
exclusion. I.G. Ex. |, at 1; I.G. Brief at 5. The statute provides:

(b) PERMISSIVE EXCLUSION. — The Secretary may
exclude the following individuals and entities from
participation in any Federal health care program (as defined in
section | 128B(f)):

ROR OR

(4) LICENSE REVOCATION OR SUSPENSION. — ANY
INDIVIDUAL OR ENTITY —
5

(A) whose license to provide health care has
been revoked or suspended by any State
licensing authority, or who otherwise lost such a
license or right to apply for or renew such a
license, for reasons bearing on the individual’s
or entity’s professional competence,
professional performance, or financial integrity.

The statute permits the Secretary to exclude from participation any individual or entity:
(1) whose state license to provide health care has been suspended or revoked by a state
licensing authority; and (2) the revocation or suspension is for reasons bearing on the

individual’s professional competence, professional performance, or financial integrity.

Petitioner concedes that her registered nurse license was suspended by the Ohio Board of
Nursing on March 17, 2006. P. Brief at 5; I.G. Ex. 5; P. Ex. 5. However, Petitioner
argues that she was not suspended for reasons bearing on her professional performance or
competence, thus the I.G. did not have authority to exclude her pursuant to section
1128(b)(4). Petitioner argues that the evidence shows that she was suspended for failure
to comply with requirements of a Consent Agreement from 2000 and an Addendum to the
consent agreement that she had entered in 2004, both with the Ohio Board as a result of
disciplinary proceedings. P. Brief at 5-7. Petitioner also argues that her exclusion
pursuant to section | 128(b)(4) of the Act is inconsistent with the legislative intent of the
provision, which is to protect against incompetent practitioners and from inappropriate or
inadequate care. P. Brief at 7-8. Petitioner’s arguments are belied by the language the
Ohio State Board used in its Adjudication Order dated March 17, 2006:

However, the Board has determined in its expertise that in
order to protect the public Ms. Orafu should be permanently
restricted from direct patient care and supervision of direct
patient care and certain practice areas based upon Ms. Orafu’s
demonstrated lack of attention to detail and violations of
restrictions placed on her license.

P. Ex. 5, at 1; 1G. Ex. 5, at 1. The language chosen by the Ohio Board clearly shows that
Petitioner’s suspension was for reasons bearing upon her professional performance and
competence and not simply her violation of the consent agreement and addendum.
Furthermore, the Board was clearly concerned, as I am, that the public be protected from
Petitioner.
6

I conclude that there is a basis for Petitioner’s exclusion pursuant to section
1128(b)(4)(A) of the Act and that her exclusion is consistent with the intent of the Act.

2. The period of exclusion is reasonable as a matter of law.

There is no issue regarding the duration of the exclusion, as section 1 128(c)(3)(E) of the
Act specifies that the exclusion shall not be less than the period during which her state
license to provide health care is revoked, suspended, or surrendered. See also 42 C.F.R.
§ 1001.501(b)(1). The Secretary’s regulations provide that the I.G. will consider a
request for reinstatement only after the individual obtains a valid license in the state
where the individual’s license was originally suspended. 42 C.F.R. § 1001.501(b)(4).

II. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare,
Medicaid, and all federal health care programs effective November 20, 2006, 20 days
after the October 31, 2006, I.G. notice of exclusion.

/s/

Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Alan K. Mitchell, M.D., ) Date: June 19, 2007

)
Petitioner, )
)

-V.- ) Docket No. C-07-115

) Decision No. CR1614
The Inspector General. )
)

DECISION

This matter is before me on the Inspector General’s (1.G.’s) Motion to Dismiss, as
untimely filed, the Request for Hearing filed on November 7, 2006 by Petitioner, Alan K.
Mitchell, M.D. The I.G.’s Motion is based on the terms of 42 C.F.R. §§ 1001.2007(b)
and 1005.2(c). As I explain below, I find that the Request for Hearing was not timely
filed, and for that reason I grant the I.G.’s Motion to Dismiss.

I. Procedural Background

On August 31, 2006, the I.G. wrote to Petitioner and notified him of his exclusion from
Medicare, Medicaid, and all federal health care programs. The I.G.’s letter relied on the
authority of sections 1128(b)(14) and 1892 of the Social Security Act (Act), 42 U.S.C.
§§ 1320a-7(b)(14) and 139Scce, and asserted that the predicate for the I.G.’s action was
Petitioner’s alleged failure to repay or otherwise discharge his National Health Service
Corps Debt.' Petitioner requested a hearing in a pro se letter dated November 7, 2006.

' The I.G.’s notice letter also cited section 1892 of the Act, 42 U.S.C. § 1395ccc,
as a source of his authority to exclude Petitioner. The I.G. does not rely on section 1892
in these proceedings as an additional basis for Petitioner’s exclusion, and this Decision
does not address Petitioner’s exclusion under section 1892 of the Act.
2

Following an unsuccessful effort to do so on December 27, 2006, I convened a prehearing
conference with the parties by telephone on Monday, February 12, 2007, pursuant to

42 C.F.R. § 1005.6. A summary of that conference appears in my Order of February 12,
2007. It should be noted that although Petitioner filed his Request for Hearing pro se, he
was represented by counsel during the conference and has been represented by that
counsel at all subsequent stages of this litigation.

Since the dates of the I.G.’s notice letter and Petitioner’s Request for Hearing suggested
the issue of its timeliness within the terms of 42 C.F.R. § 1005.2(c), I established a
schedule for the I.G.’s submission of a Motion to Dismiss, and for briefing on that
Motion. That cycle of motion practice and briefing is now closed. Petitioner filed no
Response Brief, yet failed to give notice of his intention not to file such a brief as he was
required to do by the plain terms of paragraph 5(d) of the Order of February 12, 2007.

The record on which I decide this case is made up of five exhibits. Petitioner raised no
objection to the four exhibits proffered by the I.G., and I have admitted them as I.G.
Exhibits 1-4 (1.G. Exs. 1-4). On my own motion, and in the circumstances set out in my
Order of May 25, 2007, I have admitted ALJ Exhibit 1 (ALJ Ex. 1). Neither party has
objected to my doing so.

Petitioner attached two unmarked documents to his April 10, 2007 pleading, and in the
text of that pleading refers to one of them as Petitioner’s Exhibit A. It is a copy of the
1.G.’s August 31, 2006 notice letter, which I have admitted as I.G. Ex. 1. The second
attached but unmarked document is a copy of his November 7, 2007 Request for Hearing,
which I have admitted as I.G. Ex. 2. Pursuant to paragraph 10 of the Order of February
12, 2007, these two unmarked documents are not admitted to the record in this case,
although, as I note above, copies of them have been admitted as I.G. Exs. | and 2.

II. Issue

The issue before me is whether Petitioner’s Request for Hearing was filed in a timely
manner, in compliance with the terms of 42 C.F.R. §§ 1001.2007(b) and 1005.2(c). If the
Request was not filed in a timely manner, I am obliged by the mandatory terms of

42 C.F.R. § 1005.2(e)(1) to dismiss it.

This issue must be resolved against Petitioner. Although his Request for Hearing was
filed only a day later than the deadline for doing so established by regulation, the
regulations do not permit me to consider the narrowness of the margin by which
3

Petitioner missed the deadline, or the cause of his untimeliness. Because he has failed
here to make a reasonable showing that he did not receive the I.G.’s August 31, 2006
notice on or before September 5, 2006, his November 7, 2006 Request for Hearing must
be dismissed.

Ill. Controlling Statutes and Regulations

Section 1128(b)(14) of the Act, 42 U.S.C. § 1320a-7(b)(14), authorizes the exclusion
from participation in Medicare, Medicaid, and all other federal health care programs of
“Any individual who the Secretary determines is in default on repayments of scholarship
obligations or loans in connection with health professions education made or secured, in
whole or in part, by the Secretary... .” The terms of section 1128(b)(14) are restated in
similar regulatory language at 42 C.F.R. § 1001.1501(a)(1).

An exclusion based on section 1128(b)(14) of the Act is discretionary, and the I.G. is
charged with effecting exclusions based on that section. See 42 C.F.R. § 1001.1501. If
the I.G. determines that a valid predicate exists for the exclusion, and that the exclusion is
warranted, he must send written notice of his final decision to exclude to the affected
individual, and must in that notice provide information about the appeal rights of the
excluded party. 42 C.F.R. § 1001.2002. See also Act, section 1128(c), 42 U.S.C.

§ 1320a-7(c).

The individual or entity to be excluded may appeal the exclusion by filing a request for
hearing before an Administrative Law Judge (ALJ). 42 C.F.R. § 1001.2007. That
regulation sets limits on the issues that may be considered on appeal and sets certain
requirements in the hearing request’s content. It also establishes a discrete time limit for
the filing of a request for hearing. 42 C.F.R. § 1001.2007(b) provides that:

The excluded individual or entity has 60 days from the receipt of notice of
exclusion provided for in § 1001.2002 to file a request for such a hearing.

This filing time limit is reiterated in the regulations governing the conduct of an excluded
party’s appeal before the ALJ, which appear at 42 C.F.R. §§ 1005.1-1005.23. The 60-day
deadline appears at 42 C.F.R. § 1005.2(c):

The request for a hearing will be made in writing to the DAB; signed by the
petitioner or respondent, or by his or her attorney; and sent by certified mail.
The request must be filed within 60 days after the notice, provided in
accordance with §§1001.2002, 1001.203 or 1003.109, is received by the
4

petitioner or respondent. For purposes of this section, the date of receipt of
the notice letter will be presumed to be 5 days after the date of such notice
unless there is a reasonable showing to the contrary.

The terms of 42 C.F.R. § 1005.11(a)(4) provide that pleadings and other papers in
proceedings such as this are considered filed when they are mailed.

Finally, 42 C.F.R. § 1005.2(e) directs that:
The ALJ will dismiss a hearing request where —

(1) The petitioner’s or the respondent’s hearing request is not filed in a
timely manner.

The ALJ may not extend the 60-day filing deadline. A tardy or dilatory petitioner can
gain relief only by negating the presumption of receipt through a “reasonable showing”
that the I.G.’s notice letter was not received as presumed by 42 C.F.R. § 1005.2(c).

IV. Findings and Conclusions

I find and conclude as follows:

1. The I.G. mailed notice of the proposed exclusion of Petitioner from Medicare,
Medicaid, and all other federal health programs pursuant to section 1128(b)(14) of the

Act to Petitioner on August 31, 2006. I.G. Ex. 1.

2. Petitioner received the I.G.’s August 31, 2006 notice letter not later than September 5,
2006. I.G. Exs. 1, 4; 42 C.F.R. § 1005.2(c).

3. Petitioner’s Request for Hearing was dated November 7, 2006, and for purposes of
this Decision I find that it was mailed on that date. I.G. Ex. 2; ALJ Ex. 1.

4. Petitioner has failed to make a reasonable showing that he did not receive the I.G.’s
August 31, 2006 notice letter on or before September 5, 2006. I.G. Exs. 1, 3; 42 C.F.R.
§ 1005.2(c).

5. Petitioner’s Request for Hearing was not timely filed and must be dismissed.
42 C.F.R. §§ 1001.2007(b), 1005.2(c), and 1005.2(e)(1).
V. Discussion

My ruling on the I.G.’s Motion to Dismiss applies principles long established in the
jurisprudence of this forum.

The first principle is the presumption of the receipt, within five days, of exclusion notices
mailed pursuant to 42 C.F.R. § 1001.2002. This principle is established by 42 C.F.R.

§ 1005.2(c) and is endorsed in Sharon R. Anderson, D.P.M., DAB No. 1795 (2001). In
the context of this case, that presumption is buttressed by I.G. Ex. 4, the affidavit of the
Director of the I. G.’s Exclusions Staff, who asserts that her office’s regular practice in
conducting its official business is to mail exclusion letters on the day they are dated, and
that the exclusion letter sent to Petitioner was not returned as undelivered. This first
principle establishes the presumed date on which Petitioner received the I.G.’s notice
letter as not later than September 5, 2006.

The second principle is found in the terms of 42 C.F.R. § 1005.11(a)(4): “Papers are
considered filed when they are mailed.” This record does not contain direct evidence of
the precise day on which Petitioner mailed his letter dated November 7, 2006, but in the
absence of any showing or suggestion to the contrary, I have treated it as having been
mailed — and thus filed — on the date it bears, November 7, 2006. I.G. Ex. 2; ALJ Ex.
1.

The third principle is the extension of the first two, and provides that if a hearing request
is to be timely pursuant to 42 C.F.R. § 1001.2007(b), it must be mailed not more than 65
days after the date of the notice letter to which it responds. The only relief available from
that time limit demands a “reasonable showing to the contrary” of the presumption set out
at 42 C.F.R. § 1005.2(c) that the notice letter was timely received. By strict “day-
counting,” the 65th day in this case would have been Saturday, November 4, 2007, but 42
C.F.R. § 1005.12(a) operates to exclude both Saturday, November 4, 2007 and Sunday,
November 5, 2007 in tolling the last day of the appeal period. In the absence of a
“reasonable showing to the contrary” of the presumption of timely receipt, Petitioner’s
Request for Hearing would have been timely only if mailed on or before Monday,
November 6, 2007.

The fourth principle is the precedent-established rule that “a reasonable showing to the
contrary” of the presumption of timely receipt must be made through demonstration of
facts calling the presumed receipt of the notice directly into question, and not by mere
speculation or self-serving denials of receipt. Andrew M. Perez, DAB CR1371 (2005);
George P. Rowell, M.D., DAB CR974 (2002); Peter D. Farr, M.D., DAB CR909 (2002);
Sunil R. Lahiri, M.D., DAB CR296 (1993). In the context of this case, as I shall discuss
6

below, Petitioner has offered nothing more than unsupported speculation and a labored
effort to suggest that a week shortened by a Monday holiday should somehow not count
in measuring the deadline for filing.

But it may be well first to emphasize that Petitioner’s position here does not depend on
the very narrow margin by which he missed the filing deadline, nor on a possible error in
the calculation of the deadline’s last day. Petitioner concedes that the presumptive appeal
period began to run on September 5, 2007 and expired on November 6, 2007. He does not
suggest that I can or should treat the one-day violation of the deadline as de minimis and
ignore it. His argument is that his own purported work schedule amounted to a
“reasonable showing to the contrary” of the presumed regular delivery of the I.G.’s notice
letter, and thus operated to extend the presumptive deadline. Here, in his own words, is
how he makes his argument, beginning with his unequivocal acknowledgment of the
presumptive deadline for appeal:

On its face, the calculation of 65 days requires Mitchell to request a hearing
on or before November 6, 2006. Mitchell’s request for hearing was filed on
November 7, 2007. One day after the presumptive deadline to file a request
for hearing.

Petitioner’s Answer Brief (Pet. Ans. Br.) at 2.

Having made that concession, Petitioner then advances his case against the presumed
delivery of the notice letter by September 5, 2006:

Mitchell received the I.G.’s notice on Monday, September 11, 2006 not on
Tuesday, September 5, 2006 as presumed. Labor Day is a National
Holiday. In the year 2006 Labor Day was celebrated on Monday,
September 4, 2006. The U.S. Post Office did not deliver mail on September
4, 2006. As a result, the earliest date Mitchell could have gotten the I.G.’s
notice was Tuesday, September 5, 2006.

However, the presumption is rebuttable. Because of the holiday weekend
from Friday, September 1, 2006 to Tuesday, September 5, 2006 and the
short week of September 6, 2006, Mitchell did not resume normal and
regular routine until Monday, September 11, 2006. As a result, Mitchell did
not have actual notice of the I.G.’s notice until September 11, 2006.
7

Because all presumptions are rebuttable, it is conceivable to conclude that
because of the long holiday weekend and the short holiday week, Mitchell
did not get actual notice of the I.G.’s notice until September 11, 2006. As
such, Mitchell’s request for hearing would be timely filed up to and
including November 12, 2006. And because November 12, 2006 was a
Sunday, Mitchell’s request for hearing would be timely filed up to and
including November 13, 2006.

Pet. Ans. Br. at 3.

Now, save for its first sentence, there is almost nothing exceptional about Petitioner’s first
paragraph. That the 2006 Labor Day holiday precluded the delivery of mail on Sunday,
September 3, 2006 and Monday, September 4, 2006 is an assertion safely beyond cavil.
Whether Petitioner’s mail was undelivered on Saturday, September 2, 2006 is less certain
and ultimately not important. But Petitioner’s first sentence is neither proof nor an offer
of proof: it is instead rather pure ipse dixit, and valueless as part of a “reasonable
showing to the contrary.” And Petitioner’s second paragraph offers nothing more of
substance. It will be noted that Petitioner employs the somewhat elastic phrase “did not
resume normal and regular routine until Monday, September 11, 2006” in implying,
without proof or offer of proof, that Petitioner left his medical office unvisited, his
practice unattended, and his mail unread for the remaining four days of the Labor Day
week.

Thus, the first two paragraphs of Petitioner’s argument set out above place it squarely
within the application of the fourth principle I mention above. That principle requires the
demonstration of articulated facts, not speculation or self-serving denials, as the
evidentiary bricks and mortar in a “reasonable showing to the contrary” of presumed
receipt. Moreover, the cases upon which that principle rests are especially apposite here.
For example, Petitioner has offered no evidence whatsoever in support of his ipse dixit of
receipt on September 11, 2006. He has offered no evidence of any sort reflecting
precisely what his “normal and regular routine” was during the times at issue, or that it
was interrupted at all. He has not offered evidence to clarify the exact scope, nature, or
duration of any such interruption, or to clarify in what degree that alleged interruption
operated to keep him from receiving his mail as presumed by law. Those deficiencies are
fatal shortcomings in his effort to make a “reasonable showing to the contrary.” Andrew
M. Perez, DAB CR1371; George P. Rowell, M.D., DAB CR974; Peter D. Farr, M.D.,
DAB CR909. ‘Two of these cases, and the principle itself, were called to Petitioner’s
attention in the I.G.’s Reply Brief. Detailed guidance on what might help in attempting a
8

“reasonable showing” was available to Petitioner in Dulal Bhattacharjee, M.D., DAB
CR1107 (2003). Although thus on notice of the importance of this point, Petitioner filed
no Response Brief. From that tactical decision, I can conclude only that he has no
articulated facts to demonstrate.

But would Petitioner’s position now be stronger if he could prove that his medical office
was closed during those four days, and that the mail simply piled up until Monday,
September 11, 2006? The answer is found in Sunil R. Lahiri, M.D., DAB CR296, and
that answer is “No.” Petitioner’s management of his office and any consequences that
arise from it, including delays in his personally reviewing mail delivered to him at that
address, are simply not sufficient as a “reasonable showing to the contrary.”

The final principle, established by regulation and repeatedly acknowledged by decision, is
that because the ALJ lacks the authority to extend the filing deadline, the ALJ is without
jurisdiction to consider an untimely-filed hearing request and must dismiss it. 42 C.F.R.

§ 1005.2(e)(1); Lynette Mae Rohar, DAB CR1382 (2005); Andrew M. Perez, DAB
CR1371; Patricia Ann Petrak, DAB CR1172 (2004); John F. Pitts, R.Ph., DAB CR820
(2001); Clifford M. Sonnie, M.D., DAB CR732 (2001). It cannot be gainsaid that the
margin of Petitioner’s untimeliness here is the narrowest possible, but I have been unable
to find any authority or rationale by which I may disregard it, excuse it, or treat it as de
minimis. Since the terms of 42 C.F.R § 1005.4(c)(1) expressly forbid me to ignore the
clear terms of 42 C.F.R. § 1005.2(e)(1), I must apply the latter regulation.

? With a single exception, no other decisions in this forum have addressed a
hearing request late by only one day. That exception is Nelson Ramirez-Gonzalez, M.D.,
DAB CR175 (1992), a case decided according to procedural regulations no longer
applicable to exclusion cases. At that time the controlling regulations permitted the ALJ
to consider whether good cause might exist for Dr. Ramirez’ failure to meet his appeal
deadline. Dr. Ramirez filed his hearing request one day late. The ALJ weighed Dr.
Ramirez’ attempted showing of good cause, found it wanting, and dismissed Dr.
Ramirez’ appeal.
VI. Conclusion

For all of the reasons set forth above, I grant the I.G.’s Motion to Dismiss. Pursuant to 42
C.F.R. § 1005.2(e)(1), the Request for Hearing filed by Petitioner Alan K. Mitchell,
M.D., on November 7, 2006 must be, and it is, DISMISSED.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Allen S. Levy, ) Date: June 20, 2007

)
Petitioner, )
)

-Vv.- ) Docket No. C-07-181

) Decision No. CR1612
The Inspector General. )
)

DECISION

In this case, the parties agree that Petitioner, Allen S. Levy, was convicted of grand
larceny because he submitted false claims to Medicare and to the New York State
Medicaid program. He is therefore subject to exclusion from participation in federal
health care programs under sections 1 128(a)(1) and 1 128(a)(3) of the Social Security Act
(Act). The sole issue in dispute is the length of his exclusion. The Inspector General
proposes a 13- year exclusion, and, for the reasons set forth below, I find that the
imposition of a 13-year exclusion is reasonable. .

I. Background

By letter dated October 31, 2006, the I.G. notified Petitioner that, based on his felony
conviction in New York’s Rockland County Court, he was being excluded from
participation in Medicare, Medicaid, and all federal health care programs for a period of
13 years. I.G. Ex. I, at 1. The letter explained that section | 128(a)(1) authorizes such
exclusion for criminal convictions related to the delivery of an item or service under the
Medicare and Medicaid programs. Section 1128(a)(3) authorizes exclusion for felony
convictions related to fraud in connection with the delivery of a health care item or
service.

Petitioner thereafter requested a hearing, and the case was assigned to me. I held a
prehearing conference on January 31, 2007, at which Petitioner conceded that he had
been convicted and is subject to exclusion under sections 1128(a)(1) and (3). The parties
agreed that no factual issues were in dispute, and that the case could be resolved based on
2

written submissions, without the need for an in-person hearing. Order Scheduling
Submission of Briefs and Documents (February 5, 2007). Both parties have submitted
written arguments, and the I.G. has filed 11 exhibits (I.G. Exs. 1-11). Petitioner has filed
28 exhibits (P. Exs. 1-28). In the absence of objection, I receive into evidence I.G. Exs.1-
11, and P. Exs. 1-28. The I.G. also submitted a reply brief.

IE. Issue

The parties agree that the I.G. has a basis upon which to exclude Petitioner from
participation in the Medicare, Medicaid, and all federal health care programs, so the sole
issue before me is whether the length of the exclusion (13 years) is reasonable. 42 C.F.R.
§ 1001.2007.

ILI. Discussion

Section 1128(a)(1) requires that the Secretary of Health and Human Services (Secretary)
exclude an individual who has been convicted under federal or state law of a criminal
offense relating to the delivery of an item or service under Medicare or a state health care
program.' Section 1128(a)(3) directs the Secretary to exclude an individual convicted of
a felony “relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or
other financial misconduct” in connection with the delivery of a health care item or
service. See also 42 C.F.R. § 1001.101. Individuals excluded under either section
1128(a)(1) or section 1 128(a)(3) must be excluded for a period of not less than five years.
Act, section | 128(c)(3)(B).

The Secretary has delegated to the I.G. the authority to impose exclusions. 42 C.F.R.

§ 1001.401(a). 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).

' The term “state health care program” includes a state’s Medicaid program.
Section 1128(h)(1) of the Act; 42 U.S.C. § 1320a-7(h)(1).
3

A, Based on the aggravating factors presented in this case, the 13-year
exclusion falls within a reasonable range. 42 C.F.R. § 1001.102(b)(2).’

Federal regulations set forth criteria for determining the length of exclusions imposed
pursuant to section 1128 of the Act. 42 C.F.R. § 1001.102. Evidence that does not
pertain to one of the aggravating or mitigating factors listed in the regulation may not be
used to decide whether an exclusion of a particular length is reasonable.

The following factors may serve as bases for lengthening the period of exclusion: (1) the
acts resulting in the conviction, or similar acts, resulted in a financial loss to Medicare
and the state health care programs of $5,000 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 or
entity 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). The presence of an aggravating factor or factors not offset by any
mitigating factor or factors justifies lengthening the mandatory period of exclusion.

Here, Petitioner was a clinical social worker who, until his felony convictions, was
licensed to practice psychotherapy in the State of New York. I.G. Ex. 3 at 5-6; I.G. Ex.
10, at 5. On February 4, 2003, he pled guilty in Rockland County Criminal Court to one
count of third degree grand larceny, a felony, for stealing more than $3,000 from a private
health insurance plan. I.G. Exs. 6, 7, 10, at 8. He was sentenced to five years probation
and ordered to pay $4,622.28 in restitution. I.G. Ex. 7.

Two years later, on June 21, 2005, he pled guilty to two counts of second degree grand
larceny. IG. Ex. 3, at 8-9, 26-28, 30. He admitted in open court that, between March 1,
1998, and December 31, 2002, he submitted numerous claims to the New York State
Medicaid program, falsely claiming that he had provided forty-five to fifty-minute
psychotherapy services to Medicaid recipients; in fact, he had not provided those services.
1G. Ex. 3, at 12-13; see also 1.G. Ex. 3, at 8 (Count | — Medicaid larceny). During the
same period (March 1, 1998 until December 31, 2002), he submitted similar claims to the
Medicare program for similar bogus services. I.G. Ex. 3, at 12-13; see also I.G. Ex. 3 at
8 (Count 2 — Medicare larceny).

? I make findings of fact and conclusions of law to support my decision in this
case. I set forth each finding, in italics, as a separate hearing.
4

He admitted receiving $274,431.56 to which he was not entitled (I.G. Ex. 3, at 18), and
was ordered to pay that amount in restitution. I.G. Ex. 3, at 9; 1.G. Ex. 4, at 3.

On August 23, 2005, he was sentenced to six months jail time and five years probation.
1.G. Exs. 4, 5.

Based on the 2005 indictment, the New York State Department of Health (which
administers the state’s Medicaid program) excluded Petitioner from Medicaid
participation. I.G. Ex. 9. Based on his 2003 conviction, the State Board of Social Work
suspended for two years his license to practice as a clinical social worker, although the
final year of his suspension was subsequently stayed, and he was placed on probation for
two years. I.G. Ex. 10, at 1, 6, 8. On November 10, 2005, he surrendered his social work
license because of his 2005 conviction. I.G. Ex. 11.

Thus, four aggravating factors justify lengthening the period of exclusion beyond the
five-year minimum.

Program Financial Loss. Petitioner’s actions resulted in a program financial loss well in
excess of $5,000. Petitioner explicitly admitted, and the Court determined, that he stole
more than $274,000 from the Medicare and Medicaid programs. Nevertheless, Petitioner
now suggests otherwise, arguing that State Attorney General calculated the program loss
“based on a mathematical ratio,” and the result included charges for services he actually
delivered. P. Br. at 5. Petitioner quotes selectively from the court transcript of his June
21, 2005 conviction, asserting that his admission “does not represent ‘that he criminally
took that money.’ ” /d. at 6.

In fact, the criminal court judge was insistent that Petitioner acknowledge, as part of his
plea, the amount taken:

THE COURT: | am not interested if it was civilly or
criminally wrongful or just a mistaking. There was money he
was not permitted to take... . I simply stated that the
restitution amount is money that was wrongfully taken. I
didn’t say criminally. I haven’t said civilly. It wasn’t his to
take under any kind of situation. If he can’t admit that, I
don’t want to take the plea. I won’t take the plea.

OR RK
5

THE COURT: Dr. Levy, let me try to make your life a little
easier. Are you prepared to admit today, sir, that you received
two hundred and seventy-four thousand four hundred thirty-
one dollars and fifty-six cents ($274,431.56), which you were
either not entitled to obtain or retain.

MR. ASHE:* Under the rules governing Medicare and
Medicaid?

THE COURT: Yes.
THE DEFENDANT: I do.

THE COURT: I need not make a distinction which is criminal
or which is not. I just have to be certain that the restitution
number is correct. That is the sole purpose.

1.G. Ex. 3, at 17-18. The amount of program loss was thus adjudicated by the criminal
court, and I am bound to accept the court’s finding. See 42 C.F.R. § 1001.2007(d); Joann
Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, R.Ph., DAB No. 1380, at 8
(1993) (“There is no reason to ‘unnecessarily encumber the exclusion process’ with
efforts to reexamine the fairness of state convictions.”); Jra Katz, Little Five Points
Pharmacy, DAB CR1044 (2003). Petitioner “[s]imply cannot challenge the facts relating
to his criminal conviction ....” See Jose Grau, DAB CR930, at 12 (2002).

Period of misconduct. Petitioner’s criminal conduct spanned almost five years (March 1,
1998 until December 31, 2002), obviously well beyond the one year necessary for
aggravation.

Incarceration. The sentence imposed by the criminal court judge included incarceration;
Petitioner was sentenced to six months jail time. Petitioner complains that he did not
want to accept a plea offer that included jail time, but his attorney warned him that, if
convicted after a trial, the judge threatened to sentence him to the State Penitentiary for at
least four years, possibly longer. Petitioner’s motivation for entering into a plea
agreement that includes jail time — a motivation that is probably common to many, if not
most, of such guilty pleas — is simply irrelevant.

> Mr. Ashe represented Petitioner in the criminal proceeding.
6

Other adverse actions. Finally, two state agencies took adverse actions against him, based
on the same circumstances that underlie this exclusion. Petitioner acknowledges these
additional adverse actions, but attributes them to the natural momentum generated by his
conviction. He also points out that New York’s sanctions are for only two to three years,
and that the State of Connecticut declined to take adverse action.

Again, these arguments are irrelevant. By regulation, the Secretary has determined that
the existence of adverse action by other government agencies or boards demonstrates that
the sanctioned individual presents a heightened risk to program integrity, justifying a
longer exclusion. I am bound by that regulation.

B. No mitigating factors justify decreasing the period of exclusion.

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 $1,500; (2) the record 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).
Characterizing the mitigating factor as “in the nature of an affirmative defense,” the
Departmental Appeals Board has ruled that Petitioner has the burden of proving any
mitigating factor by a preponderance of the evidence. Barry D. Garfinkel, M.D., DAB
No. 1572, at 8 (1996).

Obviously, because Petitioner’s felony convictions involved program financial losses
many times greater than $1,500, the first factor does not apply here. He does not claim
that any medical condition reduced his culpability, or argue any cooperation with
government officials. Therefore, this case presents no mitigating factors to justify
reducing the period of exclusion.

While recognizing that his convictions subject him to exclusion, Petitioner, under the
guise of “mitigation,” attacks the bases for those convictions, and the motives of those
who prosecuted him. He insists that he provided medically necessary services, and
suggests that his crimes were not really crimes at all because he made no deliberate or
conscious attempt to steal from Medicare or Medicaid (“I may not have violated the law
in spirit.”). P. Br. at 14. As noted above, Petitioner may not collaterally attack his
underlying convictions.
7

When the exclusion is based on the existence of a criminal conviction. . .

where the facts were adjudicated and a final decision was made, the basis

for the underlying conviction . . . is not reviewable and the individual or

entity may not collaterally attack it either on substantive or procedural grounds, in
this appeal.

42 C.F.R. § 1001.2007(d); Joann Fletcher Cash, DAB No. 1725 (2000); Chander
Kachoria, R.Ph., DAB No. 1380, at 8 (1993); Ira Katz, Little Five Points Pharmacy,
DAB CR1044 (2003).

Petitioner also offers letters and other evidence attesting to his good character and service
to the community. Under the regulation, these do not create mitigating factors.

IV. Conclusion

I conclude that the I.G. was authorized, under sections | 128(a)(1) and 1128(a)(3) of the
Act, to exclude Petitioner from participation in Medicare, Medicaid, and all other federal
health care programs. The evidence establishes that he has stolen a large sum of money
from the Medicare and Medicaid programs, and has stolen from a private insurer. He
engaged in his illegal conduct for several years. He was sentenced to jail time, and was
appropriately disciplined by both the state social work board and the state Medicaid
agency. All of this justifies a significant period of exclusion. No mitigating factors offset
these aggravating factors. I find that Petitioner presents a significant risk to program
integrity, and the 13-year exclusion falls within a reasonable range.

/s/

Carolyn Cozad Hughes
Administrative Law Judge