Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Edward M. Horvath, D.P.M.,
(O.L. File No. 3-04-40372-9),

Petitioner,
v.
The Inspector General.
Docket No. C-11-114
Decision No. CR2370

Date: May 11, 2011

DECISION

This matter is before me on the Inspector General’s (1.G.’s) Motion for Summary
Disposition affirming the I.G.’s determination to exclude Petitioner Edward M. Horvath,
D.P.M., from participation in Medicare, Medicaid, and all other federal health care
programs for a period of 13 years. The I.G.’s Motion and determination to exclude
Petitioner are based on section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C.

§ 1320a-7(a)(1). The undisputed facts of this case demonstrate that the minimum
five-year exclusion must be imposed, and that the I.G.’s determination to enhance that
period to 13 years, based on the aggravating factors found at 42 C.F.R. § 1001.102(b)(1),
(2), (5), and (9), is reasonable. Accordingly, I grant the I.G.’s Motion for Summary
Disposition.

I. Procedural Background

Until November 14, 2009, Petitioner Edward M. Horvath, D.P.M., was licensed as a
podiatrist by the State of Maryland. A portion of his practice, known as Main Street
Podiatry Center, included providing services to residents of nursing homes and senior
apartment buildings.
2

Petitioner was charged on or about November 10, 2008, with two felony offenses relating
to the submission of false and fraudulent claims to the Medicare and Medicaid programs
for podiatry services he did not provide. Represented by counsel, Petitioner negotiated a
plea agreement with prosecutors, and on March 5, 2009 he appeared in the Circuit Court
for Baltimore City, Maryland, and pleaded guilty to Counts One and Two of the Criminal
Information, admitting his guilt to Felony Medicaid Fraud and Felony Theft from
Medicare, in violation of MD. CODE ANN. CRIM. LAW §§ 8-509 and 7-104. He was
sentenced on September 15, 2009 to 14 months of home detention and five years
probation on each count, the sentences to be served concurrently. In addition, he was
ordered to pay restitution to the Maryland State Medicaid program in the sum of
$350,000. I.G. Exs. 2, 3, 4, 5, and 7.

The Maryland Board of Podiatric Medical Examiners (MBPME) suspended Petitioner’s
license to practice podiatry effective November 14, 2009, for a one-year period with all
but six months stayed. In addition, the suspension was to remain in effect until Petitioner
met the conditions outlined in the MBPME’s Consent Order. The MBPME’s action was
explicitly based on Petitioner’s conviction and sentence in the Circuit Court, and the
MBPME’s Consent Order adopted language finding that the criminal violations of which
Petitioner was convicted were directly related to his practice of podiatric medicine, in
violation of the Maryland Podiatry Act, MD. CODE ANN., HEALTH-OCC. § 16-311(a)(3).
LG. Ex. 6.

On September 30, 2010, the I.G. notified Petitioner that he was to be excluded pursuant
to the terms of section 1128(a)(1) of the Act for a period of 13 years based on his
conviction. The I.G. notified Petitioner that the period of exclusion was enhanced based
on the presence of four aggravating factors. Acting pro se, Petitioner sought review of
the I.G.’s action by letter dated November 18, 2010. I convened a prehearing conference
by telephone on December 20, 2010, pursuant to 42 C.F.R. § 1005.6, in order to discuss
procedures best suited for addressing the issues presented by this case. The parties
agreed that this case could be decided based on the parties’ written submissions. By
Order of December 21, 2010, I established a schedule for the submission of documents
and briefs.

The record in this case closed for purposes of 42 C.F.R. § 1005.20(c) with the receipt of
Petitioner’s response brief on March 29, 2011. The evidentiary record on which I decide
the issues before me contains nine exhibits. The I.G. proffered eight exhibits marked I.G.
Exhibits 1-8 (1.G. Exs. 1-8). Petitioner proffered one exhibit marked Petitioner’s Exhibit
1 (P. Ex. 1). In the absence of objection, I have admitted all proffered exhibits.

IL. Issues

The legal issues before me are limited to those set out at 42 C.F.R. § 1001.2007(a)(1). In
the context of this record, they are:
3

a. Whether the LG. has a basis for excluding Petitioner from participating
in Medicare, Medicaid, and all other federal health care programs pursuant
to section 1128(a)(1) of the Act; and

b. Whether the length of the proposed period of exclusion is unreasonable.

The controlling authorities require that these issues be resolved in favor of the I.G.’s
position. Section 1128(a)(1) of the Act mandates Petitioner’s exclusion for his predicate
conviction, and this is not in dispute. A five-year period of exclusion is the minimum
period established by section 1128(c)(3)(B) of the Act, 42 U.S.C. § 1320a-7(c)(3)(B).
The enhancement of that period to 13 years is not unreasonable because the four
aggravating factors relied on by the I.G. found in 42 C.F.R. § 1001.102(b)(1), (2), (5),
and (9) are fully established in the record, and because Petitioner has not demonstrated
any mitigating factor that would reduce the proposed period of exclusion.

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), requires the exclusion from
participation in Medicare, Medicaid, and all other federal health care programs of any
individual or entity convicted of a criminal offense related to the delivery of an item or
service under title XVIII of the Act (the Medicare program) or any state health care
program. The terms of section 1128(a)(1) are restated in similar language at 42 C.F.R.
§ 1001.101(a). Petitioner does not deny that the I.G. has a basis upon which to exclude
him.

The Act defines “conviction” as including those circumstances “when a judgment of
conviction has been entered against the individual... bya... State... court,” Act

§ 1128(4)(1); “when there has been a finding of guilt against the individual... bya...
State ... court,” Act § 1128(i)(2); or “when a plea of guilty . . . by the individual . . . has
been accepted bya... State... court,” Act § 1128(i)(3). These definitions are repeated
at 42 C.F.R. § 1001.2.

An exclusion based on section 1128(a)(1) is mandatory and the I.G. must impose it for a
minimum period of five years. Act § 1128(c)(3)(B), 42 U.S.C. § 1320a-7(c)(3)(B). The
regulatory language of 42 C.F.R. § 1001.102(a) affirms the statutory provision. The
mandatory minimum period of exclusion may be enhanced in some limited circumstances
and on the I.G.’s proof of certain narrowly-defined aggravating factors listed at 42 C.F.R.
§ 1001.102(b). In this case, the LG. seeks to enhance the period of Petitioner’s exclusion
to 13 years, and relies on the four aggravating factors set out at 42 C.F.R.

§ 1001.102(b)(1), (2), (5), and (9). Petitioner does not deny the presence of these
aggravating factors or contest the I.G.’s proof of them.

In cases such as this one where the I.G. proposes to enhance the period of exclusion by
relying on any of those aggravating factors, a petitioner may attempt to limit or nullify
the proposed enhancement through proof of certain mitigating factors, carefully defined
4

at 42 C.F.R. § 1001.102(c)(1)-(3). Petitioner bears the burden of proof and persuasion
regarding mitigating factors by a preponderance of the evidence. 42 C.F.R. § 1005.15(b)
and (c). In this case, the mitigating factor set out at 42 C.F.R. § 1001.102(c)(2) requires
discussion.

IV. Findings and Conclusions
I find and conclude as follows:

1. On his accepted plea of guilty on March 9, 2009, in the Circuit Court for Baltimore
City, Maryland, Petitioner Edward M. Horvath, D.P.M, was found guilty of one count of
Medicaid Fraud in violation of MD. CODE ANN., CRIM. LAW § 8-509, and one count of
Theft from Medicare in violation of MD. CODE ANN., CRIM. LAW § 7-104, both
felonies. I.G. Ex. 2, at 1; .G. Ex. 5, at 1.

2. Petitioner was sentenced on his guilty plea in the Circuit Court on September 15,
2009. As part of his sentence, Petitioner was ordered to serve 14 months of home
detention and five years probation on each count, the sentences to be served concurrently,
and was ordered to pay restitution in the sum of $350,000 to the Maryland Medical
Assistance Program (Medicaid). I.G. Ex. 2; LG. Ex. 7.

3. The accepted plea of guilty and finding of guilt described above constitute a
“conviction” within the meaning of sections 1128(a)(1) and 1128(i)(1), (2), and (3) of the
Act, and 42 C.F.R. § 1001.2.

4. A nexus and a common-sense connection exist between the criminal offenses to which
Petitioner pleaded guilty and of which he was convicted, as noted above in Findings 1, 2
and 3, and the delivery of an item or service under the Maryland Medical Assistance
Program, a state health care program. I.G. Exs. 3, 4, and 5; Berton Siegel, D.O., DAB
No. 1467 (1994); Alexander Nepomuceno Jamias, DAB CR1480 (2006).

5. By reason of Petitioner’s conviction, a basis exists for the 1.G.’s exercise of authority,
pursuant to section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), to exclude
Petitioner from participation in Medicare, Medicaid, and all other federal health care
programs.

6. As a consequence of the same set of circumstances that served as the basis for the
conviction and exclusion described above, Petitioner has been the subject of an adverse
action by the MBPME, effective November 14, 2009. LG. Ex. 6.

7. Because the acts resulting in Petitioner’s conviction caused a financial loss to a
government program of $5,000 or more, the aggravating factor set out at 42 C.F.R.
§ 1001.102(b)(1) is present.
5

8. Because the acts that resulted in Petitioner’s conviction were committed from January
2001 to October 2007, over a period of one year or more, the aggravating factor set out at
42 C.F.R. § 1001.102(b)(2) is present.

9. Because Petitioner was sentenced to 14 months of home detention, the aggravating
factor set out at 42 C.F.R. § 1001.102(b)(5) is present.

0. Because Petitioner has been the subject of an adverse action by the MBPME based
on the same set of circumstances that served as the basis for the conviction described
above, the aggravating factor set out at 42 C.F.R. §1001.102(b)(9) is present.

1. None of the mitigating factors set out at 42 C.F.R. § 1001.102(c)(1)-(3) are present.
2. The I.G.’s exclusion of Petitioner for a period of 13 years is supported by fact and

law, is within a reasonable range, and is therefore not unreasonable. I.G. Exs. 2, 5, 6, and
7; Findings 1-11 above.

3. There are no disputed issues of material fact and summary disposition is
therefore appropriate in this matter. Michael J. Rosen, M.D., DAB No. 2096 (2007);
Thelma Walley, DAB No. 1367 (1992); 42 C.F.R. § 1005.4(b)(12).

V. Discussion

The essential elements necessary to support an exclusion based on section 1128(a)(1) of
the Act are: (1) the individual to be excluded must have been convicted of a criminal
offense; and (2) the criminal offense must have been related to the delivery of an item or
service under Title XVIII of the Act (Medicare) or any state health care program.
Tamara Brown, DAB No. 2195 (2008); Thelma Walley, DAB No. 1367; Boris Lipovsky,
M.D., DAB No. 1363 (1992); Lyle Kai, R.Ph., DAB CR1262 (2004), rev'd on other
grounds, DAB No. 1979 (2005), aff’d sub nom. Kai v. Leavitt, Civ. No. 05-00514 (D.
Haw. July 17, 2006); see also Russell Mark Posner, DAB No. 2033, at 5-6 (2006).
Those two essential elements are fully demonstrated in the evidence before me, and their
demonstration encounters no challenge from Petitioner.

Although the two elements essential to the basic exclusion are not the points on which
Petitioner rests his opposition to the I.G.’s actions, it is important to point out briefly the
existence of the two essential elements necessary to support Petitioner’s exclusion and to
discuss the four aggravating factors established in the evidence before me.

Petitioner’s conviction is shown by LG. Exs. 2, 3, and 5: his guilty pleas were negotiated
in terms set out in writing, were tendered and accepted on March 9, 2009. The Circuit
Court found him guilty on that date, in satisfaction of the definitions of “conviction” set
out at sections 1128(i)(2) and (3) of the Act. The judgment of conviction entered against
him satisfied the definition of “conviction” set out at section 1128(i)(1) of the Act. The
first essential element is established by the record.
The language of Count One charges that Petitioner submitted and caused to be submitted
claims for payment to Medicaid when he knew that the services had not been provided.
1.G. Ex. 4, at 2. The language of Count Two charges that Petitioner filed claims for the
provision of podiatry services to Medicare beneficiaries that he knew had not been
provided. Jd. at 3. The submission of false claims to the Medicaid or Medicare programs
has been consistently held to be a program-related crime within the reach of section
1128(a)(1). Jack W. Greene, DAB No. 1078 (1989), aff’d sub nom. Greene v. Sullivan,
731 F. Supp. 835 (E.D. Tenn. 1990); Julius Williams, II, DAB CR1464 (2006); Kennard
C. Kobrin, DAB CR1213 (2004); Norman Imperial, DAB CR833 (2001); Egbert Aung
Kyang Tan, M.D., DAB CR798 (2001); Lorna Fay Gardner, DAB CR648, aff'd, DAB
No. 1733 (2000); Mark Zweig, M.D., DAB CR563 (1999); Alan J. Chernick, D.D.S.,
DAB CR434 (1996). I find the factual underpinnings of Petitioner’s offenses
demonstrate the required nexus and common-sense connection between the criminal acts
and the Medicaid and Medicare programs. Berton Siegel, D.O., DAB No. 1467.
Moreover, the Circuit Court ordered Petitioner to pay restitution in the amount of
$350,000 to the Maryland Medicaid program. I.G. Ex. 7. As I have written elsewhere, if
an individual has been convicted of a criminal offense, proof that any sentence based on
that conviction included the payment of restitution to a protected program creates a
rebuttable presumption of a nexus or common-sense connection between the conviction
and the delivery of an item or service under the program. Alexander Nepomuceno
Jamias, DAB CR1480. Thus, the second essential element is established by the record.

The LG. relies on four aggravating factors set out at 42 C.F.R. § 1001.102(b)(1), (2), (5),
and (9) in seeking to enhance the period of Petitioner’s exclusion to 13 years. The
aggravating factor set out at 42 C.F.R. § 1001.102(b)(1) is present when there is a
showing of financial loss to a Government program or other entities of more than $5,000.
The court records show that Petitioner was required to pay restitution in the amount of
$350,000 to the Maryland Medicaid program. The “amount of loss” aggravating factor
is present here.

The aggravating factor at 42 C.F.R. § 1001.102(b)(2) is present when “the acts resulting
in the conviction, or similar acts, were committed over a period of one year or more.”
The Criminal Information to which Petitioner pleaded guilty is clear in its recitation that
the acts that formed the basis of Petitioner’s convictions continued for well over a one-
year period: the acts relating to the Medicaid Fraud conviction occurred between January
1, 2002 to October 1, 2007, and the acts relating to the Theft from Medicare conviction

* The LG.’s notice letter notes the amount of financial loss as $250,000; the plea
agreement notes that Petitioner agreed to pay $400,000 in restitution with $50,000 to be
paid at the time of his sentencing; and the sentencing document notes that Petitioner was
ordered to pay $350,000 in restitution. Any discrepancy in the amount of financial loss
does not affect my decision since each amount noted is substantially above the $5,000
threshold required for the “financial loss” factor to be used as an aggravating factor. I.G.
Ex. 1, at 1; LG. Ex. 3, at 2; LG. Ex. 7; 42 CF.R. § 1001.102(b)(1).
7

occurred between January 1, 2001 to October 1, 2007. LG. Ex. 4, at 2,3. Thus, the
“period of time” aggravating factor is present here.

The aggravating factor set out at 42 C.F.R. § 1001.102(b)(5) is present when the
“sentence imposed by the court included incarceration.” In this case, Petitioner was
sentenced to 14 months of home detention and five years probation on each count, the
sentences to be served concurrently. [.G. Ex. 2; 1.G. Ex. 5. Petitioner’s sentence meets
the definition of incarceration at 42 C.F.R. § 1001.2, and the “incarceration” aggravating
factor is therefore present here.

The aggravating factor set out at 42 C.F.R. § 1001.102(b)(9) is present when a convicted
individual “has been the subject of any other adverse action by any . . . local government
agency or board, if the adverse action is based on the same set of circumstances that
serves as the basis for the imposition of the exclusion.” The MBPME suspended
Petitioner’s license effective November 14, 2009. The MBPME’s action was explicitly
based on Petitioner’s conviction and sentence as discussed above. I.G. Ex. 6. The “other
adverse action” aggravating factor is present here. The I.G. has therefore properly
invoked and proven all four aggravating factors.

Evidence relating to aggravating factors may be countered by evidence relating to any
mitigating factors set forth at 42 C.F.R. § 1001.102(c)(1)-(3). Here, Petitioner asserts that
the documentation errors and billing irregularities that resulted in his conviction were
affected by his Attention Deficit Hyperactivity Disorder (ADHD) and his Depressive
Disorder. Petitioner maintains that these two psychiatric disorders existed when he
committed his crimes, and that he is therefore entitled to claim benefit of the mitigating
factor set out at 42 C.F.R. § 1001.102(c)(2). P. Ans. Br. at 4-5. Petitioner’s claim to the
benefit of this mitigating factor requires some discussion here, although it is not ultimately
successful.

Since Petitioner’s mitigating factor is in the nature of an affirmative defense, Petitioner
bears the burden of proving the mitigating factor by a preponderance of the evidence.
Russell Mark Posner, DAB No. 2033; Barry D. Garfinkel, M.D., DAB No. 1572 (1996).
This allocation of the burden of proof, set out at 42 C.F.R. § 1005.15(b)(1), is fully
consistent with Board pronouncements. Stacey R. Gale, DAB No. 1941 (2004); Dr.
Darren James, D.P.M., DAB No. 1828, at 7-8 (2002).

The mitigating factor Petitioner claims is set out in the following language:
(2) The record in the criminal proceedings, including sentencing
documents, demonstrates that the court determined that the individual had a
mental, emotional or physical condition before or during the commission of

the offense that reduced the individual’s culpability ....

42 CFR. § 1001.102(c)(2).
8

Petitioner’s psychiatric condition is not in and of itself a mitigating factor under the
regulation. Rather, the regulation requires that Petitioner produce evidence that the court
determined that he had a mental, emotional or physical condition that reduced his
culpability, and the regulation further requires that any such evidence must address
Petitioner’s capacities before or at the time of the criminal acts. Frank R. Pennington,
M.D., DAB No. 1786, at 6 (2001); Jospeh M. Rukse, Jr., R.Ph., DAB No. 1851(2002). In
reviewing the record of the criminal proceedings in the matter now before me, I find that
there is nothing in the evidence sufficient to support a reasonable inference that the
sentencing judge made a determination that Petitioner’s July 2009 assessments for
ADHD and Depressive Disorder reduced his culpability for the crimes he committed
between 2001 and 2007. I.G. Exs. 2, 3, 4, 5, 6, and 7.

Now, although Petitioner’s July 27, 2009 assessment was completed six weeks before his
sentencing on September 15, 2009, Petitioner himself admits that the assessment was not
presented to the sentencing court: “[T]he discovery of the underlying psychiatric
condition was subsequent to the court proceedings and was not know at the time.”

P. Ans. Br. at 3. No reference to the assessment or to the psychiatric problems it
discusses can be found in any of the court records before me; notably, Petitioner’s March
5, 2009 plea agreement contains no such references. Thus, by the terms of Petitioner’s
own concession, the sentencing court had no information whatsoever before it that could
ave affected its view of his culpability for his crimes, although Petitioner enjoyed six
months — from the time of his guilty pleas on March 9, 2009, to the date of his
sentencing — in which to assess his psychiatric problems and bring them to the court’s
attention.

However, in cases like this one, where there is no explicit reference by the sentencing
court to a petitioner’s reduced culpability because of a “mental, emotional or physical
condition,” the Board has developed a comprehensive and case-specific rule for the
examination of a claim in mitigation based on 42 C.F.R. § 1001.102(c)(2). The details
and application of that rule are outlined in Russell Mark Posner, DAB No. 2033 and
Arthur C. Haspel, D.P.M., DAB No. 1929, at 3 (2004). The rule suggests that not only
the sentencing record as a whole but the entire record must be examined for indications
that the sentencing court reached a determination of Petitioner’s reduced culpability.

In this case, even a hint that a link existed between Petitioner’s psychiatric condition and
its possible effects on the sentence he received is nonexistent. This is not a situation in
which the sentencing court imposed an extremely light sentence, thereby potentially
raising the inference that it had implicitly made a determination of reduced culpability.
Here, Petitioner and prosecutors agreed on a range of months — the prosecution asking
18 months, Petitioner asking 12 months — for Petitioner’s incarceration and the
sentencing judge imposed a term in the broad center of that range. I.G. Ex. 2; I.G. Ex. 3,
at 2. Petitioner’s July 2009 assessment is the only qualified evidence of his psychiatric
condition. The assessment is not even in itself a firm assertion of Petitioner’s reduced
culpability, and it was put to that use only later, in the MBPME proceeding. P. Ans. Br.
at 2. The only reference to Petitioner’s psychiatric condition in the MBPME proceedings
9

is the requirement that he undergo psychiatric evaluation to assess his fitness to return to
the practice of podiatry. I. G. Ex. 6, at 8. The record of the MBPME proceedings is
devoid of any reference to Petitioner’s reduced culpability for the acts that led to his
discipline by that body. Thus, I can find neither in the record of Petitioner’s sentencing,
nor in the record before me as a whole, evidence sufficient to support a reasonable
inference that the sentencing court made the determination of reduced culpability
necessary for Petitioner to claim benefit of the mitigating factor set out at 42 C.F.R.

§ 1001.102(c)(2). Petitioner has not established this mitigating factor.

Petitioner argues that his involvement in 200 hours of community service should also be
considered a mitigating factor, based on language in Arthur D. Freiberg, D.P.M., DAB
CR63 (1990). P. Ans. Br. at 5-6. His argument is based on the Freiberg Administrative
Law Judge’s (ALJ) determination that remorse — ostensibly manifested by Freiberg’s
engagement in community service — was a legitimate mitigating factor because it
suggested that Freiberg had from it learned trustworthiness. Even at the time, under
regulations that did not enumerate or define what factors might be considered mitigating,
community service was not seen by all ALJs as being indicative of trustworthiness.
Leonard N. Schwartz, R.Ph., DAB CR36 (1989). But the regulations have been modified
substantially since Freiberg, and community service is not now among the factors
identified as the only ones that “may be considered mitigating” at 42 C.F.R.

§ 1001.102(c)(1)-(3).

Petitioner maintains that the length of his exclusion is unreasonable. However, the I.G.’s
discretion in exclusion cases when weighing the importance of aggravating and
mitigating factors commands great deference when reviewed by ALJs. Jeremy Robinson,
DAB No. 1905; Keith Michael Everman, D.C., DAB No. 1880 (2003); Stacy Ann Battle,
D.D.S., et al., DAB No. 1843 (2002). The ALJ may not substitute his or her own view of
what period of exclusion might appear “best” in any given case for the view of the LG.
on the same evidence. An ALJ may reduce an exclusionary period only when they
discover some meaningful evidentiary failing in the aggravating factors upon which the
1.G. relied, or when they discover evidence reliably establishing a mitigating factor not
considered by the I.G. in setting the enhanced period. Jeremy Robinson, DAB 1905.
Here, all four of the aggravating factors relied on by the I.G. have been established as
pleaded and Petitioner has not established the mitigating factor based on reduced
culpability. Given these consideration, the I.G.’s determination to enhance the term of
Petitioner’s exclusion to 13 years is manifestly not unreasonable. Its length is well within
a reasonable range and is commensurate with the range established as reasonable in
Russell Mark Posner, DAB No. 2033; Stacey R. Gale, DAB No. 1941; Jeremy Robinson,
DAB No. 1905 (2004); Thomas D. Harris, DAB No. 1881 (2003); Fereydoon Abir,
M.D., DAB No. 1764 (2001); Joann Fletcher Cash, DAB No. 1725 (2000); Lawrence J.
White, D.D.S., DAB CR 1584 (2007); and Stanley Junious Benn, DAB CR1501 (2006).

Because Petitioner appears here pro se, I have taken additional care in reading his
submissions, guided by the Board’s reminders that pro se litigants should be offered
“some extra measure of consideration” in developing their records and their cases. Louis
10

Mathews, DAB No. 1574 (1996); Edward J. Petrus, Jr., M.D., et al., DAB No. 1264
(1991). In doing so, I have found nothing that might suggest a valid defense to the
exclusion or its enhanced term.

Summary disposition is authorized by the terms of 42 C.F.R. § 1005.4(b)(12). Resolution
of a case by summary disposition is particularly fitting when settled law can be applied to
undisputed material facts. Marvin L. Gibbs, Jr., M.D., DAB No. 2279 (2009); Michael J.
Rosen, M.D., DAB No. 2096 (2007). The material facts in this case are undisputed and
unambiguous. They support summary disposition as a matter of settled law, and this
Decision issues accordingly.

VI. Conclusion

For the reasons set forth above, the I.G.’s Motion for Summary Disposition should be,
and it is, GRANTED. The I.G.’s exclusion of Petitioner Edward M. Horvath, D.P.M.,
from participation in Medicare, Medicaid, and all other federal health care programs for a
period of 13 years pursuant to the terms of section 1128(a)(1) of the Act, 42 U.S.C.

§ 1320a-7(a)(1), is sustained.

/s/
Richard J. Smith
Administrative Law Judge