DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of:
Mira Tomasevic, M.D., DATE: January 17, 1989

Petitioner,

Docket No. C-46
Decision No. CR17

-v-

The Inspector General.

DECISION

This case is before me on Petitioner's request for a
hearing challenging her suspension from participating in
the Medicare and Medicaid programs. By notice dated
August 12, 1986, the Inspector General (the I.G.)
announced that he had suspended Petitioner from
participating in these programs for three years,
pursuant to section 1128(a) of the Social Security Act,
42 U.S.C.1320a-7. The reason provided for Petitioner's
suspension was her conviction in federal court of an
offense related to her participation in the Medicaid
program. Petitioner requested a hearing on August 23,
1988, protesting the length of the suspension and arguing
that it should be reduced to two years. The I.G. moved
to dismiss the hearing request, arguing that it was not
timely filed. He asserted, alternatively, that the
three-year suspension is reasonable. I conducted a
hearing in Chicago, Illinois, on October 4, 1988, at
which I received evidence as to both the issues of
timeliness of the hearing request and the reasonableness
of the suspension. I conclude that the hearing request
was timely filed, and I deny the motion to dismiss. I
conclude further that the three-year suspension imposed
on Petitioner is reasonable.

ISSUES
The issues in this case are whether:

1. Petitioner is entitled to a hearing based on her
hearing request, filed August 23, 1988.
2. The length of the suspension imposed on Petitioner
is reasonable.

APPLICABLE LAWS AND REGULATIONS
1. Section 1128 of the Social Security Act: As of

the date of Petitioner's suspension, Section 1128(a) of
the Social Security Act, 42 U.S.C. 1320a-7(a), required
the Secretary of Health and Human Services (the
Secretary) to suspend from participation in the Medicare
and Medicaid programs any physician or other individual
who had been convicted of a criminal offense related to
that person's participation in the delivery of medical
care or services under titles XVIII (Medicare), XIX
(Medicaid), or XX (block grants to states) of the Act.
The law did not prescribe a minimum suspension. The law
was revised in August 1987 to require a minimum exclusion
from participation in the Medicare and Medicaid programs
of five years for any individual or entity "convicted of
a criminal offense related to the delivery of an item or
service under title XVIII or under any State health care
program," Pub. L. 100-93 (August 18, 1987), 42 U.S.C.
1320(a)(1) and (c) (3) (B). !

Both the law in effect as of the date of Petitioner's
suspension and the current law provide that a suspended
or excluded individual is entitled to an administrative
hearing as to the suspension or exclusion. The law in
effect as of Petitioner's suspension provided at 42
U.S.C. 1320a-7(e) that a suspended individual is entitled
to a hearing "to the same extent as is provided in
section 205(b) of the Social Security Act." Virtually
identical language is contained in the 1987 revision at
42 U.S.C. 1320a-7(f) (1). Section 205(b) (1) of the Social
Security Act, 42 U.S.C. 405(b) (1), provides that a person
entitled to an administrative hearing by virtue of an
adverse decision shall be given reasonable notice and
opportunity to be heard, and provides further that the
hearing decision shall be based "on evidence adduced at
the hearing."

' Many of the preexisting statute's provisions were
retained without significant change as part of the
revised statute. For purposes of simplicity, this
decision will, cite to the revised statute, except where
specifically noted.
2. Requiations Governing Suspension, Exclusion, or
Termination of Practitioners, Providers, Suppliers of
Services and Other Individuals. Regulations governing
suspension and exclusion of individuals convicted of
program-related offenses are contained in 42 C.F.R. Part
1001. Section 1001.123(a) provides that when the I.G.
has conclusive information that an individual has been
convicted of a program-related crime he will give that
individual written notice that he is being suspended from
participation beginning 15 days from the date of the
notice. Section 1001.125(b) establishes criteria for the
I.G. to consider in determining the length of a
suspension to impose on an individual convicted of a
program-related crime. These instruct the I.G. to
consider: "(1) The number and nature of the program
violations and other related offenses; (2) The nature and
extent of any impact the violations have had on
beneficiaries; (3) The amount of the damages incurred by
the Medicare, Medicaid, and the social services programs;
(4) Whether there are any mitigating circumstances; (5)
The length of the sentence imposed by the court; (6) Any
other facts bearing on the nature and seriousness of the
program violations; and (7) The previous sanction record
of the suspended party under the Medicare and Medicaid
program."

Section 1001.128(a) provides that an individual suspended
for conviction of a program-related crime may request a
hearing before an administrative law judge on the issues
of whether: (1) he or she was in fact, convicted; (2) the
conviction was related to his or her participation in the
delivery of medical care or services under the Medicare,
Medicaid, or social services program; and (3) the length
of the suspension is reasonable.

3. Requiations Governing Appeals Procedures.
Regulations governing the hearings and appeals procedures
in suspension and exclusion cases are contained in
42 C.F.R. Part 498. Section 498.10 provides that any
affected party may appoint another individual to
represent him. Section 498.11(b) provides that a notice
or request may be sent to either a party, his or her
representative, or to both. Section 498.40(a)(2) states
that an affected party or that party's representative
must file a written hearing request "within 60 days of
the receipt of the notice" of an adverse determination in
order to be entitled to a hearing. Section 498.22
provides that the date of receipt of a notice will be
presumed to be five days after the date on the notice,
hp

unless there is a showing that it was, in fact, received
earlier or later.

FINDINGS OF FACT AND CONCLUSIONS OF

LAW
A. Findings and Conclusions as to Petitioner's Right to
a_ Hearing.

1. Beginning in at least 1983, Petitioner owned a
condominium at 426 West Barry Street, Chicago, Illinois.
Tr. 23.

2. Petitioner resided at that address at various times
until July, 1986. Id..

3. In July, 1986, Petitioner left the United States to
reside in Yugoslavia. She resided there continuously
until December, 1987. Tr. 33, 51; P. Ex. 11, 21.

4. On June 13, 1986, Petitioner's attorney advised the
I.G. in writing that he represented Petitioner in
connection with the I.G.'s review of her possible
suspension from participating in the Medicare and
Medicaid programs. P. Ex. 4. On July 7, 1986,
Petitioner's attorney again wrote to the I.G. on her
behalf. P. Ex. 5.

5. On August 12, 1986, the I.G. sent written notice to
Petitioner, pursuant to 42 U.S.C. 1320a-7(c), and
42 C.F.R. 1001.123, advising her that she would be
suspended from participating in the Medicare and Medicaid
programs. P. Ex. 1. The notice was sent to Petitioner's
residence address at 426 West Barry Street. No copy of
the notice was sent to Petitioner's attorney. Id..

6. Petitioner did not reside at 426 West Barry Street

on the date the notice was sent, and did not receive the
notice. Tr. 56.

2? Exhibits, the transcript of this case, and the
parties! briefs, will be cited as follows:

Petitioner's Exhibit P. Ex. (exhibit number) / (page)

I.G.'s Exhibit I.G. Ex. (exhibit
number) / (page)

Transcript Tr. (page)

Petitioner's Brief P.'s Brief at (page)

I.G.'s Brief I.G.'s Brief at (page)
ana

7. Petitioner first learned that she had been
suspended from participating in the Medicare and Medicaid
programs in July or August 1988, in connection with her
application for employment as a staff physician at a
hospital in Texas. Tr. 56.

8. Petitioner's attorney received a copy of the notice
of suspension on August 11 or 12, 1988 and filed a
hearing request on Petitioner's behalf on August 23,
1988.

9. The hearing request was filed within 60 days from
Petitioner's receipt of the notice of suspension and was
timely filed within the requirements of 42 C.F.R.
498.40(b) (2).

10. Petitioner is entitled to a hearing.

B. Findings and Conclusions as to the Whether the Length
of the Suspension is Reasonable.

11. Petitioner is a medical doctor who has been
employed in a variety of settings as a physician since
1974. Tr. 193; P. Ex. 6/1.

12. Between January and May, 1983, Petitioner was
employed as a physician in Chicago, Illinois, at clinics
operated by Drug Industry Consultants (D.I.C.).

Tr. 22-23; P. EX. 7/5-7.

13. Petitioner's salary while employed by D.I.Cc. was
$200 per day. Tr. 192.

14. Commencing early in her employment with D.I.c.,
Petitioner began receiving complaints from her superiors
that she was prescribing inadequate amounts of
medications to clinic patients. Tr. 181; P. Ex. 5/2;
7/6.

15. Petitioner understood that the additional
medications she was pressured to prescribe were not
medically necessary, but that their sale contributed to
the financial success of D.I.C. Tr. 181-182; P. Ex. 7/6.

16. Petitioner acceded to her superiors' pressure to
prescribe additional medications, and prescribed
medications which she knew were not medically necessary
for the patients she was treating. Tr. 181-182; I.G. Ex.
12/1-2; P. Ex. 7/7.
an

17. There were some unnecessary medications, such as
endocrine drugs, which Petitioner was pressured to
prescribe, but which she refused to prescribe. Tr. 182.

18. By intentionally prescribing unnecessary
medications to patients of D.I.C.-operated clinics,
Petitioner participated in a scheme to defraud the
Illinois Department of Public Aid (Medicaid). I.G. Ex.
12/1-2. The conspiracy involved numerous individuals and
employees of D.I.C. operating out of several clinics and
pharmacies. See I.G. Ex. 3; I1.G. Ex. 4/1. The co-
conspirators included physicians and pharmacists. I.G.
Ex. 4/1. The scheme obtained approximately $20 million
from Medicaid. Id..

19. Petitioner disagreed with the activities she
observed and was induced to engage in. Tr. 183; I.G. Ex.
4/50. She resigned from D.I.C. after about 70 days'
employment. P. Ex. 5/2.

20. Subsequent to terminating her employment with
D.I.c., Petitioner received reimbursement checks from the
Illinois Department of Public Aid, totalling over
$25,000, which Petitioner surrendered to her former
employer. Tr. 185-186; P. Ex. 16.

21. Petitioner also learned after terminating her
employment with D.I.c., that an individual was signing
her name to health insurance claim forms. Tr. 183-184;
P. Ex. 17-19. Petitioner reported these acts to the
Illinois Department of Public Aid. Tr. 183-184.

However, she did not report having prescribed unnecessary
medications or the activities she had observed at D.I.C.-
run clinics. Tr. 183.

22. Subsequent to her employment by D.I.C., Petitioner
was advised by the United States Attorney's office that
her activities as a D.I.C. employee were being
investigated, and that she might be the subject of an
indictment. Tr. 190. Petitioner truthfully admitted her
activities to the United States Attorney; however, the
United States Attorney did not use evidence provided by
Petitioner in connection with its investigation or in
prosecutions of other individuals. I.G. Ex. 8.

23. Petitioner was indicted by a federal grand jury in
December 1984, and charged with felonies, consisting of
unlawful conspiracy and mail fraud. I.G. Ex. 3. The
indictment named 36 individuals, including Petitioner, as
co-conspirators. Id..
aa

24. Petitioner pleaded guilty on May 3, 1985, to two
felony counts of mail fraud. I.G. Ex. 12. The maximum
sentence Petitioner could have received for these crimes
was ten years' imprisonment, a $2,000 fine, and
restitution. Id.. On April 7, 1986, Petitioner received
a sentence of three years' probation. I.G. Ex. 5; P. Ex.
11/10. The sentencing judge noted that Petitioner's
involvement in the conspiracy lasted only 71 days; that
Petitioner initially thought that the terms of her
employment by D.I.C. were legitimate; that Petitioner
became aware that her activities were not legitimate and
complained about them; and that she expressed contrition
for her involvement in the scheme. Id@..

25. The criminal offenses to which Petitioner pleaded
guilty constitute criminal offenses related to her
participation in the delivery of medical care or services
under the Medicaid program, as provided by 42 U.S.C.
1320a-7(a). Petitioner's guilty pleas constitute
convictions as defined by 42 U.S.C. 1320a-7(i).

26. The Secretary is required by law to bar Petitioner
from participating in the Medicare program, and to direct
state agencies to bar her from participating in the
Medicaid program, as a consequence of Petitioner's
conviction of crimes related to her participation in the
delivery of medical care or services under the Medicaid
program, 42 U.S.C. 1320a-7(a) (1).

27. The law in effect as of Petitioner's conviction
did not specify a minimum exclusion length; however, the
law was amended in August, 1987, to require a minimum
five-year exclusion of persons convicted of a criminal
offense related to the delivery of an item or service
under the Medicare or Medicaid programs. Pub. L. 100-93
(August 18, 1987), 42 U.S.C. 1320a-7(a) (1) and (c) (3) (B).

28. The Secretary has delegated to the I.G. the
responsibility for suspending from participation in
Medicare and Medicaid persons convicted of program-
related offenses. 42 C.F.R. Part 1001.

29. The Secretary has adopted internal guidelines to
facilitate processing of suspensions pursuant to the law
and regulations. I.G. Ex. 10, 11.

30. The internal guidelines in effect as of the date
Petitioner was sentenced for her crimes provided for a
minimum suspension of three years for persons suspended
for program-related offenses. I.G. Ex. 11/15.
oo

31. A principal purpose of legislation requiring
suspension of persons convicted of program-related
offenses is to deter other individuals from committing
such offenses. See S. Rep. No. 100-109, 1987 U.S. Code
Cong. & Ad. News 682, 686.

32. The objective in establishing a minimum suspension
period was to create a deterrent against the commission
of program-related offenses. I.G. Ex. 11/15.

33. In evaluating Petitioner's case, the I.G.
considered the number and nature of the program
violations committed by Petitioner, pursuant to 42 C.F.R.
1001.125(b) (1), and concluded that Petitioner had been
convicted of two felony charges involving potentially
severe penalties. These were determined to be in the
mid-range of offenses encountered by the I.G. in
suspension cases. Tr. 132.

34. The I.G. concluded, pursuant to 42 C.F.R.
1001.125(b) (2), that he could not determine whether
Petitioner's crimes had an adverse impact on program
beneficiaries. Tr. 133.

35. The I.G. determined, pursuant to 42 C.F.R.
1001.125(b) (3), that Petitioner's unlawful acts had
diverted funds from legitimate program purposes and had
defrauded the program. Tr. 134. Although the precise
amount of damages could not be calculated, they were
concluded to be in the mid-range of damages encountered
by the I.G. in suspension cases. Tr. 137.

36. The I.G. concluded, pursuant to 42 C.F.R.
1001.125(b) (4), that there did not exist mitigating
factors in Petitioner's case which would justify a
reduced suspension. Tr. 140-141. Specifically, the I.G.
concluded that Petitioner's truthful statements to the
United States Attorney did not constitute a mitigating
factor. Tr. 142, 145. The I.G. also concluded that the
facts that: Petitioner did not profit from her crimes,
apart from her salary, her involvement with D.I.c. lasted
only about 70 days, and she expressed contrition over her
involvement did not constitute mitigating factors.

Tr. 162. The I.G. also concluded that Petitioner's
compliance with the terms of her sentence was not a
mitigating factor. Tr. 163.

37. The I.G. considered Petitioner's sentence,
pursuant to 42 C.F.R. 1001.125(b) (5), and concluded that
the three~year probation imposed on Petitioner fell
woo

within the mid-range of sentences encountered in
suspension cases. Tr. 139.

38. Based on the facts of the case, the regulations,
and guidelines, the I.G. imposed a three-year suspension
on Petitioner from participating in the Medicare and
Medicaid programs. Tr. 143-144. The suspension was for
the minimum length specified by the guidelines. Tr. 174.

39. In determining the length of the suspension, the
I.G. considered the regulatory criteria in 42 C.F.R.
1001.125(b).

40. The suspension imposed on Petitioner by the I.G.
advances the statutory purpose of deterring individuals
from committing crimes related to the delivery of
services under the Medicare and Medicaid programs.

41. Based on the law, regulations, and evidence, a
three-year suspension of Petitioner from participating in
the Medicare and Medicaid programs is reasonable.

ANALYSIS

A. Petitioner's Entitlement to a Hearing.

The threshold issue in this case is whether Petitioner is
entitled to a hearing. The I.G. contends that
Petitioner's hearing request, filed more than two years
after she was sent the notice of suspension, was not
timely filed. He argues that, consequently, Petitioner
is not entitled to a hearing and that I should dismiss
her hearing request. Petitioner asserts that her hearing
request was timely filed and that she is therefore
entitled to a hearing on the merits. Based on the
evidence and on applicable regulations, I conclude that
the request was timely filed and that Petitioner is
entitled to a hearing.

Certain relevant facts are not in dispute. The parties
agree that for several years, Petitioner maintained a
residence at 426 West Barry Street, Chicago, Illinois.
At the time the I.G. suspended Petitioner, he understood
the West Barry Street address to be Petitioner's
residence, and so he sent the suspension notice to that
address.

The parties disagree as to when Petitioner received the
suspension notice. Petitioner testified that several
10
-~10-

weeks prior to the date the notice was sent, she moved
from West Barry Street to her family's home in
Yugoslavia. She averred that she remained in Yugoslavia
until December 1987; that mail sent to her Chicago
residence was not forwarded to her, and that she did not
receive the suspension notice until her attorney obtained
a copy from the 1.G. in August, 1988. The I.G. argues
that these assertions are not credible. He asserts that
Petitioner either actually received the notice in August
1986, or at any rate, long before she now says she did.

I am satisfied that Petitioner did not receive the
suspension notice until her attorney obtained a copy of
it in August 1988. Petitioner's testimony as to her move
to Yugoslavia is credible and is corroborated by visa
stamps on her passport. Her assertion that she remained
in Yugoslavia until December 1987 is also credible and is
substantiated by a stream of correspondence between
Petitioner in Yugoslavia and her attorney in Chicago.

Her testimony that mail sent to her Chicago residence was
not forwarded to her is likewise credible. The I.G. has
offered little to rebut this evidence, other than
producing a certified mail receipt for the suspension
notice, signed with Petitioner's name. Petitioner has
testified that she did not sign the receipt, and there is
no probative evidence to establish that the signature on
the receipt is Petitioner's.

The regulations provide, at 42 C.F.R. 498.40(a) (2), that
a party must file a hearing request within sixty days
from "receipt of the notice" in order to be entitled toa
hearing. Petitioner complied with this regulation by
filing her hearing request on August 23, 1988, within
sixty days from the date her attorney obtained a copy of
the suspension notice from the I.G.

The I.G. argues that the regulations should not be
construed to require actual receipt of the suspension
notice as a trigger date for the limitations period
within which a party must file a hearing request. He
contends that notwithstanding the plain language of 42
C.F.R. 498.40(a) (2), regulations which permit service of
notices by mail would be meaningless if the I.G. had to
ascertain in each case whether the affected party
actually received the notice. He asserts that if, as in
this case, he sends the notice of suspension to an
address which he reasonably believes is the affected
party's address, then he has discharged his duty to
provide notice to that party. Furthermore, according to
the 1.G., the Petitioner was obliged to notify the I.G.
11
-11-

of any change in her mailing address. Having failed to
do so, the Petitioner should not be "allowed to seek
refuge" behind non-receipt of the notice. I.G.'s Brief
at 9. Petitioner's failure to notify the I.G. of a
change in her address was a "gross indifference regarding
receipt" of the notice, according to the I.G. Id.
Therefore, the I.G. asserts that Petitioner's hearing
request should be dismissed as untimely even if she never
received the notice which was sent to her Chicago
residence.

The I.G. has confused the process requirements of law and
regulations for effectuating a suspension with the
regulatory notice criteria which trigger the time period
within which a party may file a hearing request. Actions
which satisfy the former requirement may not be
sufficient to satisfy the latter requirement.

The law provides that a suspension shall be effective at
such time and upon such reasonable notice to the public
and to the suspended party as may be specified in
regulations. 42 U.S.C. 1320a-7(c). Regulations provide
that a suspension for a person convicted of a program-
related crime will become effective beginning fifteen
days from the date of written notice of suspension given
by the I.G. to the suspended party. 42 C.F.R. 1001.123.
The regulations do not specify how the notice must be
transmitted, other than that it be in writing. However,
it is reasonable to infer that the regulations permit
service by mail.

It may be, as the I.G. contends, that actual receipt of
the notice by the suspended party is unnecessary to
initiate a suspension provided that the I.G. makes a good
faith effort to transmit the notice by mail to the
party's last known address. But it is clear that actual
receipt of the notice is required to trigger the sixty
day limitations period within which a hearing request
must be filed. 42 C.F.R. 498.40(a)(2).’ Contrary to the
I.G.'s assertion, the limitations regulation does not
impose an affirmative duty on a party to advise the I.G.

3 The regulations do not require that the I.G.

prove in every case that the suspended party actually
received the notice. Receipt is presumed to be 5 days
after the date on the notice, unless a party proves
otherwise. 42 C.F.R. 498.22(b)(3). In this case,
Petitioner has rebutted the presumption of receipt.
12
-12-

of a change in address, nor does it permit constructive
notice to substitute for actual notice of suspension.

It should be noted that the record does not support the
I.G.'s claim that Petitioner was indifferent to receipt
of the suspension notice. As of the date of Petitioner's
suspension, her attorney was communicating with the I.G.
on her behalf, and was forcefully advocating reasons to
reduce the suspension. Had the I.G. sent a copy of the
suspension notice to Petitioner's attorney, as was his
option pursuant to 42 C.F.R. 498.11, the question of
receipt would never have arisen.

The I.G.'s arguments are not supported by the case it
cites, National Labor Relations Board v. Clark, 468 F.2d
459 (5th Cir. 1972), vacated on other grounds, 411 U.S.
912 (1972). The Clark case stands for the principle that
a party need not actually receive notice of an action to
be validly served, where the serving party mails the
notice in good faith to the receiving party's last known
address. Clark does not address the question of whether
such service would trigger the limitations period to
answer the notice.

B. Reasonableness of the Length of the Suspension.

The I.G. suspended Petitioner from participating in the
Medicare and Medicaid programs for three years, pursuant
to section 1128(a) of the Social Security Act, 42 U.S.C.
1320a-7. The suspension results from Petitioner's
conviction in federal court of offenses related to her
participation in the Medicaid program. Regulations
provide that in cases such as this, substantive issues
which may be considered at a hearing consist of whether:
(1) Petitioner was in fact, convicted of an offense;

(2) the conviction was related to Petitioner's
participation in the Medicare, Medicaid, or social
services program; and (3) the length of the suspension is
reasonable. 42 C.F.R. 1001.128(a)(1)-(3). Petitioner
does not dispute that she was convicted of an offense
related to her participation in the delivery of services
under the Medicaid program. The issue remaining to be
resolved is whether the length of the suspension is
reasonable.

Subsumed in this issue is the question of the standard of
review I am to employ to decide whether the length of the
suspension is reasonable. Petitioner argues that my role
is to independently weigh the evidence in light of the
13
-13-

criteria for determining suspensions established by

42 C.F.R. 1001.125(b), and to impose a "reasonable"
suspension without regard to the I.G.'s suspension
determination. P.'s Brief at 7. This formulation
misstates my statutory and regulatory authority. My role
is limited to evaluating the reasonableness of the I.G.'s
determination. My function is not to substitute my
judgment for his, so long as I conclude that his
determination is reasonable.

The law and regulations plainly state that it is the
Secretary (and his delegate, the I.G.) who bear the
responsibility to determine an appropriate suspension.
The law in effect as of the date that Petitioner was
suspended, and the 1987 revision to that law, clearly
repose in the Secretary the obligation to suspend, and to
determine the appropriate length of a suspension. See
Pub. L. 100-93 (August 18, 1987), 42 U.S.C. 1320a~-7a.
The regulations establishing criteria for determining
length of suspensions provide that they are to be
employed by the L.G. in evaluating particular cases and
imposing suspensions. The regulations provide that the
standard for review of suspensions at administrative
hearings includes the issue of whether the length of the
suspension imposed by the I.G. is reasonable. 42 C.F.R.
1001.128(a) (3). In adopting this regulatory language,
the Secretary made it clear that the administrative law
judge's role was to decide whether the I.G.'s suspension
determination was reasonable. "(T)he word ‘reasonable'
conveys the meaning that (the I.G.) is required at the
hearing only to show that the length of suspension
determined on the basis of these criteria was not extreme
or excessive" (emphasis added). 48 Fed. Reg. 3744 (Jan.
27 1983).

In arguing that I should independently determine and
assess a "reasonable" suspension, Petitioner has
emphasized that the administrative hearing is de novo.
42 U.S.C. 1320a-7(f); 42 U.S.C. 405(b)(1). It is true
that my statutory duty is to conduct a de novo hearing--
rather than to conduct a paper review of the record
generated by the I.G. in making his suspension
determination. There is nothing inconsistent between
this duty and a standard of review which requires a
decision as to the reasonableness of the I.G.'s
determination, based on evidence adduced at the hearing.

The evidence establishes that the I.G. scrupulously
considered the merits of the case, including facts and
arguments raised by Petitioner's attorney, in light of
14
- 14 -

the criteria established by 42 C.F.R. 1001.125(b). The
I.G. concluded, and the record amply substantiates, that
Petitioner committed serious criminal offenses.
Petitioner was a knowing participant in a massive
criminal conspiracy which defrauded the Illinois
Department of Public Aid of millions of dollars in
Medicaid funds. See 42 C.F.R. 1001.125(b)(1),(3),(6).The
offenses to which Petitioner pleaded guilty, two felony
counts of mail fraud, are serious crimes which may result
in substantial prison terms, fines, and court-ordered
restitution. See 42 C.F.R. 1001.125(b)(1). As the
I.G.'s agent noted in his testimony, the degree of
severity of the offenses committed by Petitioner and
their impact on the Medicaid program fall within the mid-
range of offenses for which suspensions are imposed.

Petitioner argues that the I.G. either failed to consider
or improperly disregarded aspects of her case which
should compel a shorter suspension than that imposed by
the I.G. These include Petitioner's reluctant
participation in the conspiracy, the fact that she played
only a small role in the scheme, the fact that her
participation totalled only about seventy days, her
willingness to cooperate with federal authorities once
she knew she was the target of a criminal investigation,
and her contrition for her unlawful acts. Petitioner
also notes that other authorities, including the district
court judge who sentenced her for her crimes, have
expressed compassion in view of the equities of her case.

The regulations require the I.G. to consider potentially
mitigating evidence and weigh that in determining the
length of the suspension. 42 C.F.R. 1001.125(b) (4). The
regulations do not define what constitutes mitigating
circumstances, nor do they direct that particular weight
be attached to specific circumstances. In this case, the
I.G. was aware of and evaluated all of the facts alleged
to be mitigating by Petitioner. The I.G. concluded that
these facts did not constitute extraordinary
circumstances which compelled reducing the suspension
from the three year period he determined to be minimally
necessary.

Prior to enactment of the 1987 revisions to the law
governing suspensions, the Secretary implemented a
suspension policy which focused on the prophylactic and
deterrent effect of suspensions, as opposed to the
equities advanced by suspended individuals in their
particular cases. The Secretary concluded that a
relatively stringent suspension policy was necessary in
15
-15-

order to protect the integrity of the Medicare and
Medicaid programs and to strongly warn providers
participating in these programs against committing
program-related offenses. The Secretary determined that,
absent extraordinary circumstances, a policy of
deterrence would best be served by requiring a minimum
suspension of three years for those individuals convicted
of program-related crimes.

This policy comports with Congressional intent. Congress
intended legislation mandating suspensions for those
convicted of program-related offenses to be remedial in
application. When Congress revised the law in 1987 to
mandate a minimum five-year suspension for those
convicted of program-related offenses, it clarified and
strengthened an existing deterrence policy. The efficacy
and reasonableness of suspensions was intended to be
weighed by their deterrent effect, as opposed to the
extent to which they punished offenders in individual
cases. S. Rep. No. 100-109, 1987 U.S. Code Cong. & Ad.
News 682, 686.

Application of a deterrence policy to specific cases may
sometimes produce consequences that seem harsh in light
of individual equities. Obviously, a statutory policy
which requires a minimum suspension of five years for
program-related offenses will produce suspensions in some
cases that appear to be more extreme than that at issue
in this case. But it is clear that prior to the
enactment of the 1987 legislation, a policy which
mandated exclusions of at least three years in all but
extraordinary cases was supported by sound policy
considerations and legislative intent. Application of
that policy to the facts of this case does not produce an
extreme or excessive suspension. I am satisfied that in
this case, the character of Petitioner's crimes, coupled
with the need for an effective deterrent against the
commission of program- related offenses, outweighs any
equitable circumstances that may exist, and militates in
favor of a relatively stiff suspension. The conspiracy
in which Petitioner participated produced enormous damage
to the Medicaid program, and yet was composed of many
individuals operating at Petitioner's level, whose
individual participation would not, if treated in
isolation, appear to be all that serious. If relatively
stringent suspensions were reserved only for those
offenders who committed crimes involving large sums, or
for which lengthy sentences were imposed, then no
effective deterrent would exist for those individuals
16
-16-

inclined to engage in the type of misconduct Petitioner
engaged in.

CONCLUSION

Based on the law and record of this proceeding I conclude
that Petitioner's hearing request was timely filed within
the requirements of 42 C.F.R.498.40(a)(2), and Petitioner
is entitled to a hearing on the merits. The I.G.'s
motion to dismiss this proceeding is denied. I conclude
that the suspension imposed on Petitioner by the I.G. is
reasonable.

/s/

Steven T. Kessel
Administrative Law Judge


DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board

Civil Remedies Division

In the Case of:

Jan 12, 1989

The Inspector General, DATE:

> ve > Docket No. C-40

Donald 0. Bernstein, DECISION CR 16
D.c.,

Respondent.

DECISTON AND ORDER

The Respondent waived his right to a formal evidentiary
hearing in this civil money penalty and assessment case
and the parties jointly requested that I issue a decision
and order on the basis of their stipulation of facts dated
January 4, 1989.

APPLICABLE FEDERAL STATUTES AND REGULATIONS
A. Statutes

This case is governed by the Civil Monetary Penalties Law
(CMPL), Section 1128A of the Social Security Act,

42 U.S.C. 1320a-7a (West U.S.C.A., 1988 Supp). The CMPL
provides that any person submitting a claim for Medicare
or Medicaid reimbursement for an item or service that the
person knows or should know was not provided as claimed
shall be subject to a civil money penalty of not more than
$2,000 for each item or service, an assessment of not more
than twice the amount claimed for each item or service,
and exclusion from participating in Medicare and Medicaid
programs. These penalties are in addition to any other
penalties that may be prescribed by law.

B. The Regulations

The governing federal regulations (Regulations) are
codified in 42 C.F.R. sections 1003.100 through 1003.133
(1987) and 52 Fed. Reg. 49412 (December 31, 1987). These
Regulations provide for a full and fair trial-type hearing
before an Administrative Law Judge (ALJ).

BACKGROUND STATEMENT

On February 24, 1988, the Inspector General (I.G.) issued
a notice of proposed determination (Notice), through the
Deputy Assistant I.G. for the Civil Fraud Division,
informing Donald 0. Bernstein, D.C. (Respondent), that the
I.G. had determined that the Respondent is subject toa
penalty of $63,000 and an assessment of $3,488. The
Notice alleged that the Respondent had presented or caused
to be presented to Blue Shield of Florida, the designated
Medicare carrier, false claims for Medicare reimbursement
for 210 spinal manipulations that the Respondent knew, had
reason to know, or should have known were not provided as
claimed during the period January 1982 through May 28,
1982, a time when the Respondent was a practicing
chiropractor in Coral Springs, Florida.

On April 26, 1988, the Respondent timely disputed the
I.G.’s allegations concerning liability, argued that the
penalty and assessment proposed by the I.G. are
inappropriate, and raised several legal defenses.

A prehearing conference was held in Denver, Colorado on
October 24, 1988, and a Prehearing Order and Notice of

Hearing was issued on October 27, 1988 summarizing all

matters discussed at the conference.

PREHEARING RULINGS

A. Ruling On The Respondent’s Motion For Competency And
Mental Status Examination

At the prehearing conference, the Respondent presented a
motion to have each of the eight patients whose care and
treatment are at issue in this case examined for
competency and mental status. The I.G. opposed the
Motion, and I denied it during the conference. The
reasons I denied the Motion are: (1) the Regulations at
section 10003.117(a) state that depositions are not
authorized, and I determined that such examination would
be in the nature of an unauthorized deposition, (2) the
Respondent would be given the opportunity to cross-examine
each of these witnesses at a hearing, and (3) the
competency of the witnesses is something that would become
apparent to me as the trier of fact at the formal hearing.
Since the Respondent waived his right to a formal
evidentiary hearing, the issue is moot.

B. Ruling On The Respondent’s Motion To Dismiss

In his request for a hearing, the Respondent moved to
dismiss this action, arguing that the applicable statute
of limitations was five years, that the subject claims for
Medicare reimbursement were submitted by the Respondent
more than five years preceding the date of the I.G.’s
Notice, and that, in effect, the application of the new
six year statute of limitations would be unconstitutional
in that it would revive claims barred by the five year
period of limitations. The Respondent also argued that
the I.G. was allowed to bring only one civil action on the
same set of facts and that since the Respondent was
suspended from participation in the Medicare and Medicaid
programs pursuant to another provision of the Act in 1985,
the I.G. was estopped from initiating this action for a
civil penalty and assessment. Finally, the Respondent
argued that a 1987 agreement between him and the I.G.
precluded the I.G. from bringing this action.

In response, the I.G. argued that (1) the six year statute
of limitations applied in this action; (2) the claims at
issue were within the applicable six year period;

(3) there was no constitutional prohibition to applying
the six year statute of limitations to this action; and
(4) the I.G. was not estopped or precluded from proposing
a civil money penalty and assessment pursuant to the CMPL
merely because the Respondent was suspended under a
separate provision of the Act over three years ago
(section 1128 of the Act) or because of a 1987 agreement
which was no longer in effect.

On September 23, 1988, I issued a ruling denying the
Respondent’s motion to dismiss, and concluding that the
six year statute of limitations (rather than the five year
period of limitations provided for in the Regulations)
applied in this case. Specifically, I ruled that:

(1) Congress intended that the six year statute of
limitations would apply to all CMPL actions initiated
after September 1, 1987; (2) this CMPL action was not
precluded by the Respondent’s prior suspension or by the
1987 agreement between the parties; and (3) section
1003.115(c) of the Regulations denied me the authority to
determine whether the retroactive application of the six
year statute of limitations to this action is a violation
of the Constitution of the United States.
ISSUES
The remaining issues are:

1. Whether the I.G. proved by a preponderance of the
evidence that the Respondent knew, had reason to know, or
should have known that each of the Medicare services at
issue was not provided as claimed by the Respondent.

2. Whether the amount of the penalty and assessment
proposed by the I.G. is appropriate under the
circumstances of this case.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/2/

Having considered the entire record, the arguments and the
submissions of the parties and being advised fully herein,
I make the following Findings of Fact and Conclusions of
Law:

1. For the purposes of this case, I have taken judicial
notice of the statutes of the United States, the
regulations of the Secretary of DHHS, and all other
pertinent regulations of the United States.

Stip. A. 1.

2. This case is governed by the CMPL and the Regulations.
Stip. A. 2.

3. The Secretary had delegated.to the I.G. the authority
to take action under the CMPL and the Regulations, and
this authority has been redelegated to the Deputy
Assistant Inspector General for Civil Fraud. Stip A.
3. to 5.

4. The I.G. issued his Notice to the Respondent on
February 24, 1988. Stip. B. 1.

5. The Respondent filed a timely response to the I.G.’s
Notice on April 2, 1988.

1/Any part of this Decision and Order preceding and
following the Findings of Fact and Conclusions of Law
which is obviously a finding of fact or conclusion of law
is hereby incorporated into this section.

2/All "Stip." references are to the stipulation of facts
dated January 4, 1989.
10.

The Respondent presented, or caused to be presented,
to Blue Shield of Florida each of the claims for
Medicare reimbursement listed in the Appendix to the
I.G.’s February 24, 1988 Notice. Stip. B. 4.

The amounts claimed from the Medicare program and the
amounts paid in Medicare reimbursement with respect to
the claims at issue are correctly reflected in the
Appendix to the February 24, 1988 Notice; as the
designated Medicare carrier in Florida, Blue Shield of
Florida was authorized to process and pay these claims
filed by the Respondent for Medicare reimbursement.
Stip. B. 2 to 5.

The 210 services at issue were described as
"manipulations of the spine," on the HCFA 1490 claim
forms presented or caused to be presented by the
Respondent. On each claim form, the signed or stamped
signature of the Respondent certified "that the

services shown on the . . . form were medically
indicated and necessary for the health of the patient"
and "further, . . . that these services were

personally rendered by [him] or were rendered incident
to [his] professional service by his employee under
immediate personal supervision . . . ." Additionally,
on each claim form it was certified that "x-rays
proximate to course of therapy are available for
review." Stip. B. 6.

The Respondent is in possession of no medical records,
x-rays, financial information, or any other
documentation pertaining to any of the 210 services at
issue. Stip. B. 7.

On or about April 28, 1982, the Respondent presented
or caused to be presented to Blue Shield of Florida a
Medicare claim form seeking payment for 22 spinal
manipulations rendered to Medicare beneficiary Miriam
Silverstein (Medicare # 101109408B) during the period
January-April 1982. If called as a witness,

Mrs. Silverstein would testify, without contradiction,
that she saw the Respondent on only one occasion, and
that the balance of the visits and procedures
specified on the claim form did not occur.
Furthermore, Mrs. Silverstein would testify that at
the time of her only visit to the Respondent, she was
asked to sign several blank Medicare claim forms. The
Respondent knew, had reason to know, or should have
known that 21 of the 22 services specified on the
claim form requesting Medicare reimbursement (counts
113-133) were not provided. Stip. B. 8.
11.

12.

13.

On or about April 28, 1982, the Respondent presented
or caused to be presented to Blue Shield of Florida a
Medicare claim form seeking payment for 26 spinal
manipulations rendered to Medicare beneficiary Fay
Schwartz (Medicare # 088260190A) during the period
January-April 1982. If called as a witness,

Mrs. Schwartz would testify, without contradiction,
that she saw the Respondent on only one occasion,

May 3, 1982, and that all services for which
reimbursement was sought prior to that date were not
rendered. Furthermore, Mrs. Schwartz would testify
that, at the time of her only visit to the Respondent,
he requested that she sign a blank Medicare claim
form. The Respondent knew, had reason to know, or
should have known that the 26 services specified on
the claim form requesting Medicare reimbursement
(counts 86-111) were not provided. Stip. B. 9.

On or about May 27, 1982, the Respondent presented or
caused to be presented to Blue Shield of Florida a
Medicare claim form seeking payment for 27 spinal
manipulations rendered to Medicare beneficiary Bertha
Snyder (Medicare # 569091417A) during the period
January-May 1982. If called upon as a witness,

Mrs. Snyder would testify, without contradiction, that
she did not visit the Respondent for treatment in
1982, and that all the specified services for which
Medicare reimbursement was sought were not rendered.
The Respondent knew, had reason to know, or should
have known that the 27 services specified on the claim
form requesting Medicare reimbursement (counts 162-
188) were not provided. Stip. B. 10.

On or about May 28, 1982, the Respondent presented or
caused to be presented to Blue Shield of Florida a
Medicare claim form seeking payment for 22 spinal
manipulations rendered to Medicare beneficiary Leonard
Snyder (Medicare # 549100591A) during the period
January-May 1982. On July 20, 1982, Mr. Snyder sent a
letter to Blue Shield of Florida stating that "my wife
and I were never in Dr. Bernstein’s office . .. or
did we receive any treatment from him at any time
during 1982." This information would be corroborated
by Mrs. Bertha Snyder who, if called upon as a
witness, would testify, without contradiction, that
neither she or her husband visited the Respondent for
treatment in 1982, and that all the specified services
for which Medicare reimbursement was sought were not
rendered. The Respondent knew, had reason to know, or
should have known, that eight of the services
14.

15.

16.

specified on the claim form requesting Medicare
reimbursement (counts 189-196) were not provided.
Stip. B. 11.

On or about March 31, 1982, the Respondent presented
or caused to be presented to Blue Shield of Florida a
Medicare claim form seeking payment for 24 spinal
manipulations rendered to Medicare beneficiary
Nicholas St. Angelo (Medicare # 134127523A) during the
period January-March 1982. If called upon as a
witness, Mr. St. Angelo would testify, without
contradiction, that he saw the Respondent on only
three or four occasions, and that the balance of the
visits and procedures specified on the claim form did
not occur. Furthermore, Mr. St. Angelo would testify
that, during one of his visits, he was asked to sign a
blank claim form. The Respondent knew, had reason to
know or should have known that 20 of the 24 services
specified on the claim form requesting Medicare
reimbursement (counts 5-24) were not provided. Stip.
B. 12.

On or about April 16, 1982, the Respondent presented
or caused to be presented to Blue Shield of Florida a
Medicare claim form seeking payment for 14 spinal
manipulations rendered to Medicare beneficiary Thomas
Barber (Medicare # 111246759A) during the period
January-April 1982. If called upon as a witness,

Mr. Barber would testify, without contradiction, that
he did not visit the Respondent for treatment in 1982
and that the specified visits and procedures did not
occur. Furthermore, Mr. Barber would testify that,
upon first visiting the Respondent’s office in 1981,
he was asked by the Respondent to sign a blank claim
form. The Respondent knew, had reason to know, or
should have known that the 14 services specified on
the claim form submitted by the Respondent requesting
Medicare reimbursement (counts 25-38) were not
provided. Stip. B. 13.

On or about May 12, 1982, the Respondent presented or
caused to be presented to Blue Shield of Florida a
Medicare claim form seeking payment for 28 spinal
manipulations rendered to Medicare beneficiary Carmen
Murphy (Medicare # 133012456D) during the period
January~May 1982. If called upon as a witness,

Mrs. Murphy would testify, without contradiction, that
she did not visit the Respondent for treatment in 1982
and that the specified visits and procedures did not
occur. The Respondent knew, had reason to know, or
should have known that the 28 services specified on
17.

18.

19.

the claim form submitted by the Respondent requesting
Medicare reimbursement (counts 134~161) were not
provided. Stip. B. 14.

On or about May 26, 1982, the Respondent presented or
caused to be presented to Blue Shield of Florida a
Medicare claim form seeking payment for 20 spinal
manipulations rendered to Medicare beneficiary Lottie
Gerstel (Medicare # 334166693) during the period
April-May 1982. Two other claim forms had also been
previously presented by the Respondent seeking
Medicare payment for services rendered on 12 prior
occasions to beneficiary Lottie Gerstel in March-April
1982. If called upon as a witness, Mr. Gerstel would
testify, without contradiction, that she visited the
Respondent’s office for treatment in 1982 no more than
ten times and that she did not receive treatment from
the Respondent on the 32 occasions for which
reimbursement was requested. Furthermore, she would
testify that she was hospitalized in May 1982 for the
condition for which she initially went to the
Respondent for treatment, and accordingly she could
not have received services from the Respondent on the
dates specified on his claim form. Medical record
documentation from University Hospital in Plantation,
Florida would indicate that Mrs. Gerstel was admitted
to the hospital on May 18, 1982 and discharged on May
21, 1982. The Respondent knew, had reason to know, or
should have known that 20 of the services specified on
claim forms submitted by Respondent requesting
Medicare reimbursement (counts 39-58) were not
provided. Stip. B. 15.

Blue Shield of Florida and the Department of Health
and Human Services received complaints from other
Medicare beneficiaries stating that spinal
manipulations as specified on the Respondent’s claims
for Medicare reimbursement were never rendered to
them. Stip. B. 16.

On August 15, 1984, the Respondent was charged in an
indictment handed down by a federal grand jury with
violations of 18 U.S.C. 1001, 1341 and 2, involving
the submission of false claims for Medicare
reimbursement. He subsequently entered into a Plea
Agreement wherein he agreed to plead guilty to count
two of the indictment pertaining to the submission of
a false Medicare claim for services allegedly rendered
to beneficiary Thomas Barber. The services specified
in count two correspond to counts 25-38 listed in the
Appendix to the February 24, 1988 Notice. In the Plea
20.

21.

22.

23.

24,

Agreement, the Respondent also stipulated to
"mailfing] a claim form (claim # 111246759A) to Blue
Shield in Jacksonville, Florida seeking payment in the
amount of $210 for visits and spinal manipulations
with regard to Thomas Barber, which visits and
manipulations did not occur." Stip. B. 17.

On May 10, 1983, the Respondent was convicted on count
two of the aforementioned indictment, for violating 18
U.S.C. 1001 and 2. He was sentenced on May 10, 1985
in the U.S. District Court for the District of
Colorado to three years probation, was fined $1,000,
and "ordered to serve 30 days in a jail-type
institution on weekends." On January 10, 1986, an
Order was issued modifying the sentence to discharge
"ten days of the 30 day jail sentence." The
Respondent served his period of incarceration, paid
his fine, and fully and completely abided by every
term and condition of probation. The Respondent’s
probation was terminated upon successful completion in
1988. Stip. B. 17.

On September 30, 1985, based on the aforementioned
conviction, the Respondent was suspended from
participation in the Titles XVIII (Medicare) and XIX
(Medicaid) programs for a period of ten years,
pursuant to section 1128(a) of the Social Security
Acct, 42 U.S.C. 1320a-7(a). Stip. B. 17.

In 1983, the Respondent relocated to Colorado, where
he currently practices his profession. In 1987, asa
result of the aforementioned felony plea, the Colorado
State Board of Chiropractic Examiners issued to the
Respondent a Letter of Admonition for his misconduct
in connection with this matter. Since that date, the
Respondent has conducted his practice in accordance
with the rules and regulations of said Board and is in
good standing in Colorado. Stip. B. 18.

The stipulated facts and evidence support a finding of
liability with respect to 164 out of the 210 services
at issue and specified in the Appendix to the I.G.’s
February 24, 1988 Notice. Accordingly, the penalty
and assessment in this case should be predicated only
on these 164 counts. Stip. B. 19.

Further, the parties stipulated to the entry of
judgment against the Respondent in the form of a civil
money penalty of $49,200.00 and an assessment of
$2,722.40. 42 U.S.C. section 1320a-7a(a); Stip. B.
19.
-10-

25. The entry of this Decision and Order, which is based
upon stipulated facts and evidence, in no way
precludes the parties of their appeal rights, as
provided for in 42 U.S.C, 1320a-7a(e) and 42 C.F.R.
1003.125, 1003.127. Stip. B. 20.

26. The parties expressly reserved the right, upon the
rendering of this Decision and Order, to preserve and
pursue any appeals, and the stipulation of facts in no
way limits a legal challenge to the initiation of this
action by the I.G. and a legal challenge to the
imposition of a civil money penalty and assessment on
the Respondent. Stip. B. 20.

27. After weighing all circumstances and examining the
record in this case, it is appropriate to impose a
penalty of $49,200.00 and an assessment of $2,722.40
on the Respondent.

DISCUSSION

Based on the stipulation of facts executed and filed by
the parties, the I.G. has proven by a preponderance of the
evidence that the Respondent did know, had reason to know,
or should have known that 164 Medicare claims submitted in
1982 by the Respondent were false claims for services that
were not provided by the Respondent as claimed and that a
penalty of $49,200.00 and an assessment of $2,722.40 is
appropriate under the circumstances of this case.

While the Respondent has conceded most of the facts
alleged by the I.G. in the I.G.’s February 24, 1988 Notice
and has waived his right to a formal hearing, the
Respondent reserved the right to appeal the legal and
constitutional issues raised.

Accordingly, it is appropriate for me to enter an Order
for the amount of penalty and assessment stipulated to by
the parties.
~i.1r-

ORDER

Based on the entire record, the CMPL, and the Regulations,
it is hereby Ordered that the Respondent:

(1) Pay a penalty of $49,200,00; and

(2) Pay an assessment of $2,722.40

/s/

Charles E. Stratton
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:

Joel Fass, DATE: December 30, 1994

Petitioner,

- Veo Docket No. C-94-388
Decision No. CR349

The Inspector General.

DECISION

By letter dated May 13, 1994, Joel Fass, the Petitioner
herein, was notified by the Inspector General (I.G.) of
the U.S. Department of Health & Human Services (HHS),
that it had been decided to exclude him for a period of
three years from participation in the Medicare program
and from participation in the State health care programs
described in section 1128(h) of the Social Security Act
(Act), which are referred to herein as "Medicaid." The
reason given for this action was that Petitioner had been
convicted in a State court of grand larceny in the fourth
degree. The I.G. concluded that Petitioner's crime
amounted to an offense involving fraud and/or other
financial misconduct in connection with the delivery of
health care and merited exclusion pursuant to section
1128(b) (1) of the Act.

Petitioner filed a timely request for review of the
I.G.'s action by an administrative law judge (ALJ) of the
Departmental Appeals Board (DAB).

I determined that there were no facts of decisional
significance genuinely in dispute, and that the only
matters to be decided in this case were the legal
implications of the undisputed facts. In the absence of
objection, I, therefore, have decided the case on the
basis of the parties' briefs and exhibits.

42 C.F.R. § 1005.4(b) (12) (1992).
2

I find no reason to disturb the I.G.'s determination to
exclude Petitioner from participation in the Medicare and
Medicaid programs for a period of three years.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. During the period relevant to this case, Petitioner
was employed at Brookhaven Memorial Hospital (the
"Hospital"), located on Long Island, in the State of New
York. I.G. Ex. 2.

2. At the same time he was employed by the Hospital,
Petitioner was also a part owner and corporate officer of
Brookhaven Clinical Laboratories ("BCL"), located on Long
Island, in the State of New York. I.G. Br. 2.?

3. New York charged Petitioner, by criminal information,
with grand larceny and receiving unlawful kickbacks from
a clinical laboratory. I.G. Ex. 1.

4. The criminal information alleged that Petitioner,
“acting as secretary and high managerial agent of
Brookhaven Clinical Laboratories, Inc.," collected
$104,366 in fees which should have been paid to the

1 The I.G. submitted six exhibits. I cite the
I.G.'s exhibits as "I.G. Ex(s). (number) at (page)." I
admit into evidence I.G. Exs. 1-6. The I.G. submitted a
motion and brief for summary disposition to which
Petitioner responded. I cite the I.G.'s brief for
summary disposition as "I.G. Br. at (page)." I cite
Petitioner's response as "P. Br. at (page)." In addition
to his response brief, Petitioner submitted a copy of the
motion to vacate his conviction which he filed in State
court. He submitted also a memorandum of law in support
of the motion, with accompanying affidavits. I have
marked Petitioner's exhibits in conformance with my Order
and Schedule for Filing Briefs and Documentary Evidence,
dated August 18, 1994. Thus, Petitioner's memorandum of
law in support of his motion to vacate his conviction is
now P. Ex. 1. Petitioner's notice of motion and
accompanying affirmation are now P. Ex. 2. Ex. A is now
P. Ex. 3; Ex. B is now P. Ex. 4; Ex. C is now P. Ex. 5;
and Ex. D is now P. Ex. 6. The I.G. also submitted a
reply to Petitioner's response, which I cite as "I.G. R.
Br. at (page)."

2 petitioner did not object to the I.G.'s
characterization of Petitioner's position at BCL.
3

Hospital for laboratory work performed for International
Clinical Labs (ICL). I1.G. Ex. 1.

5. The criminal information alleged that Petitioner
obtained the $104,366 by defrauding the Hospital. I.G.
Ex. 1.

6. Pursuant to a plea bargain, Petitioner pled guilty to
a reduced charge of grand larceny in the fourth degree, a
class E felony. I.G. Ex. 4.

7. %In his plea colloquy, Petitioner acknowledged that,
from June 1985 through August 1988, he had knowingly and
wrongfully received sums of money from ICL which were
payable to the Hospital and deposited these monies into
BCL accounts. He further acknowledged to the court that
he knew the monies in question were for tests that were
performed at the Hospital, by Hospital personnel, and not
by any employees of BCL. I.G. Ex. 4.

8. Petitioner was sentenced to 5 years probation and was
required to make restitution in the amount of $104,366.
A forfeiture of $203,181 was also ordered. I.G. Ex. 5.

9. Petitioner was convicted of a criminal offense.
Section 1128(i) (3) of the Act. FFCL 6- 8.

10. A criminal offense involving "the performance of
management or administrative services" is considered to
be "in connection with the delivery of any health care
item or service," within the meaning of section
1128(b)(1) of the Act. 42 C.F.R. § 1001.201(a) (1).

11. Petitioner was convicted of a criminal offense
relating to fraud or financial misconduct in connection
with the delivery of a health care item or service within
the meaning of section 1128(b)(1) of the Act. FFCL 9;
10.

12. Individuals convicted of offenses described in
section 1128(b)(1) of the Act are required to be excluded
for a period of three years, unless certain specified
aggravating or mitigating factors are present. 42 C.F.R.
§ 1001.201(b) .

13. Petitioner's criminal acts took place over a period
of three years and are an aggravating factor. I.G. Ex.
4; 42 C.F.R. § 1001.201(b) (2) (ii).

14. The I.G. was authorized to exclude Petitioner for a
period of at least three years. FFCL 11-13.
4

15. Petitioner may not collaterally attack the
circumstances of his conviction in this administrative
proceeding. 42 C.F.R. § 1001.2007(d).

16. Petitioner's allegations of inadequate counsel at
his State trial, or evidence submitted to prove that he
was not guilty of the criminal offense for which he was
convicted, are not relevant in this proceeding.

17. The permissible payment practices described at 42
C.F.R. § 1001.952 are inapplicable where, as here,
Petitioner's conviction relating to fraud authorizes his
exclusion under section 1128(b)(1) of the Act.

PETITIONER'S ARGUMENT

Petitioner does not deny that he pled guilty to grand
larceny in the fourth degree and agreed to make
restitution in the amount of $104,366. Petitioner's
principal argument, based on his analysis of the law, is
that his conviction fails to support a permissive
exclusion under section 1128(b)(1) of the Act.

Petitioner argues that his grand larceny conviction was
not connected with the delivery of a health care item or
service, since an alleged failure to remit the money owed
to a hospital for laboratory tests did not directly
impact on the provision of health care services. P. Br.
at 5. Petitioner contends that his actions were too
attenuated and remote from actual health care delivery to
be encompassed by section 1128(b)(1). Ida. Petitioner
contends also that the criminal offense of which he was
convicted does not relate to "fraud, theft, embezzlement,
breach of fiduciary responsibility, or other financial
misconduct," within the meaning of section 1128(b)(1) of
the Act. P. Br. at 6. Moreover, Petitioner contended in
his request for a hearing that certain mitigating factors
existed which justified reducing his period of exclusion.
Petitioner argued also that his conduct could not serve
as the basis for an exclusion because his criminal
offense fell within the exceptions listed at 42 C.F.R. §
1001.952. Request for a Hearing, July 7, 1994.

Petitioner contends further that he received inadequate
assistance of counsel since the attorney who represented
him also represented his co-defendants with whom he had
conflicting interests. P. Br. at 8. Petitioner alleges
that his attorney did not explain to him the benefits of
cooperating with the authorities against the other co-
defendants or of consulting his own attorney. P. Br. at
“9-10. Petitioner asserts that his attorney did not
advise him of the collateral consequences of his guilty
5

plea. P. Br at 10. Petitioner argues that due to the
ineffective assistance of his counsel, he has filed a
motion to have his conviction vacated. Finally,
Petitioner requests that these proceedings be stayed
until a ruling is issued on this motion. Id.

DISCUSSION
I. Petitioner was properly excluded under section

1128(b) (1) of the Act.

Pursuant to section 1128(b)(1), the I.G. may exclude any
individual or entity convicted under federal or State law
of a criminal offense relating to fraud, theft,
embezzlement, breach of fiduciary responsibility, or
other financial misconduct, in connection with the
delivery of health care items or services, including the
performance of management or administrative services
relating to the delivery of health care. 42 C.F.R. §
1001.201(a) (1).

I find that Petitioner was convicted of a criminal
offense as defined by section 1128(i)(3) of the Act.
Petitioner entered a guilty plea, the court questioned
him to ensure its validity, and then imposed a sentence.
This is sufficient to constitute a conviction for
purposes of imposing an exclusion under the Act. I find
also that Petitioner's conviction satisfies the criteria
of section 1128(b)(1) of the Act. Specifically,
Petitioner's conviction was for an offense: (1) in
connection with the delivery of a health care item or
service; and (2) related to fraud, theft, embezzlement,
breach of fiduciary responsibility, or other financial
misconduct.

The determination of whether Petitioner's conviction fits
within the language of section 1128(b)(1) requires an
examination of: (1) the criminal offense for which
Petitioner was convicted; and (2) the actions which
formed the basis for the conviction. See Charles W.

Whee an ‘oan K. Todd, DAB 1123 (1990); Francis
Craven, DAB CR143 (1991). Petitioner was convicted of
grand larceny in the fourth degree due to his involvement
in a scheme to defraud the Hospital of $104,366. While
the criminal offense of grand larceny in the fourth
degree does not necessarily relate to the delivery of a
health care item or service, the conduct which led to
Petitioner's conviction plainly related to health care
items and services.
6

Petitioner, an employee of the Hospital, participated in
a scheme with two other owners of BCL by which he billed
one of BCL's clients (ICL) for work that was done by the
Hospital, and not by BCL. As a result of Petitioner's
and the other co-defendants' actions, the Hospital was
defrauded of $104,366. This conduct related to the
delivery of health care items and services in two
respects. First, the scheme involved billing for
clinical laboratory services, which are health care
services. Second, the Hospital was in the business of
providing health care, and Petitioner's criminal
enterprise may have affected the Hospital's ability to
deliver health care services by depriving the Hospital of
funds.’ Criminal acts directed at a health care
provider's administration or financial management will
necessarily be indirect, but nevertheless, can have a
very marked effect on the provision of care, thus meeting
the requirements of the Act.

Petitioner argues that his conviction does not fall
within section 1128(b)(1) of the Act because it is too
attenuated and remote from actual health care delivery.
However, the regulations, as well as administrative law
judge decisions, demonstrate that section 1128(b) (1) does
not require that Petitioner's crime involve the direct or
immediate manipulation of items or services. The
regulations clearly contemplate that administrative
services may satisfy the statutory criteria. 42 C.F.R. §
1001.201(a)(1). In addition, DAB precedent has
established that even false entries in a hospital's
accounting records are deemed to be “in connection with
the delivery of a health care item or service," within
the meaning of the Act. Frank Haney, DAB CR81 (1990).
Because Petitioner's fraudulent scheme deprived the
Hospital of compensation for laboratory services, the
criminal activity for which Petitioner was convicted, was

3 Petitioner asserts that the Hospital was not
deprived of money or services because a co-owner of BCL,
one of Petitioner's co-defendants, was also a contracted
manager of the Hospital's laboratory and must have
authorized Petitioner to use his time or the lab's
services in connection with outside work. This argument
lacks any merit since it fails to address the fact that
the Hospital was not paid anything for the work which was
done using its equipment and perhaps other hospital
services. In any event, such an argument is a challenge
to the circumstances surrounding Petitioner's conviction,
and is therefore irrelevant, as explained in section III
of this decision.
7

committed in connection with the delivery of health care
items and services.

Furthermore, Petitioner's misappropriation by fraud or
trick of $104,366 clearly satisfies the other criterion
of section 1128(b)(1) -- that the crime upon which the
exclusion is predicated, involve fraud or other financial
misconduct. Petitioner argues that the I.G. has failed
to establish that his criminal offense was a crime
involving fraud. I disagree. Petitioner pled guilty to
larceny, as charged in the criminal information. I.G.
Ex. 2; I.G. Ex. 4. By pleading guilty, Petitioner
admitted that he committed the acts charged.
Specifically, he admitted that he obtained the $104,366
by defrauding the Hospital. Therefore, Petitioner's
conviction was related to fraud. Petitioner sought to
prove that ICL, the party from whom he wrongfully
received the compensation due the Hospital, was not
misled by his actions. Any such proof is irrelevant,
since Petitioner was convicted of defrauding the
Hospital.

II. ‘he ions re ti ude:
eriod eas’ a Ss.

The regulations set forth the sole factors which an ALJ
may consider in determining the appropriate length of an
exclusion. In the case of an exclusion under section
1128(b) (1) of the Act, the governing regulation, 42
C.F.R. § 1001.201(b), provides that an exclusion imposed
under 1128(b)(1) of the Act must be for a period of three
years unless specified aggravating or mitigating factors
are present.

In this case, Petitioner was excluded for three years,
despite the presence of an aggravating factor justifying
the imposition of a lengthier exclusion. The regulation,
at 42 C.F.R. § 1001.201(b) (2) (ii), provides that it is an
aggravating factor if the conduct which led to the
conviction were committed over a period of one year or
more. The I.G. alleges, and Petitioner does not deny,
that the acts that resulted in Petitioner's conviction
occurred over a three year period from June 1985 through
August 1988. Since Petitioner's scheme occurred over a
period of one year or more, the I.G. had the discretion
to exclude Petitioner for more than three years.

Petitioner argued in his request for a hearing that his
three-year exclusion should be reduced due to the
presence of mitigating factors. Petitioner did not,
however, cite any of the mitigating factors listed at 42
C.F.R. § 1001.201(b) (3). It is Petitioner's burden to
8

prove the existence of mitigating factors. James H.
Holmes, DAB CR270 (1993). Since Petitioner has not met
this burden, I find that there are no mitigating factors
present here.

Since the I.G. was justified in excluding Petitioner for
more than three years due to the existence of an
aggravating factor, and because there are no mitigating
factors present, I find that the I.G.'s imposition of a
three year exclusion is reasonable.

III. Petitioner may not collaterally attack the
circumsta: is c i ed .

Petitioner argues, in essence, that he was improperly
excluded because his conviction is invalid due to
ineffective assistance of counsel. Petitioner asserts
that, due to his attorney's poor advice, his guilty plea
and his conviction are both invalid. Petitioner contends
that his attorney represented his co-defendants, as well
as himself, and did not advise him of his right to
cooperate with the authorities against these co-
defendants. Petitioner argues that his attorney failed
to alert him to the danger of this conflict of interest
and of the need for Petitioner to hire his own attorney.
In addition, Petitioner argues that his attorney did not
advise him of the collateral consequences of his plea.

The applicable regulations provide that "{w]hen the
exclusion is based on the existence of a conviction,

«+ . . the basis for the underlying determination is not
reviewable and the individual or entity may not
collaterally attack the underlying determination, either
on substantive or procedural grounds." 42 C.F.R. §
1001.2007(d). Thus, Petitioner may not argue either the
merits of his criminal case or the ineffectiveness of his
attorney's advice in this forum. An appellate panel of
the DAB discussed the reasoning for this rule, in regards
to a mandatory exclusion taken under section 1128 (a) (2)
of the Act, in Peter J. Edmonson, DAB 1330 (1992). The
appellate held:

It is the fact of the conviction which causes the
exclusion. The law does not permit the Secretary
to look behind the conviction. Instead, Congress
intended the Secretary to exclude potentially
untrustworthy individuals or entities based on
criminal convictions. This provides protection
for federally funded programs and their
beneficiaries and recipients, without expending
program resources to duplicate existing criminal
processes.
9

This reasoning applies in the case of exclusions taken
under section 1128(b) as well.

In addition, I must reject Petitioner's request to stay
these proceedings until a decision is rendered on his
motion to vacate the underlying conviction. If
Petitioner wished to stay these proceedings, he should
have made this request at the prehearing conference. In
any event, a stay in this proceeding would have no effect
upon the I.G.'s exclusion, since the exclusion is already
in effect and an ALJ does not have the authority to
review the I.G.'s discretion in this regard. 42 C.F.R. §
1005.4(c)(5). Moreover, the regulations provide that if
an individual's conviction is vacated or overturned, the
individual will be reinstated into the Medicare program
retroactive to the effective date of the exclusion. 42
C.F.R: § 1001.3005(a) (1).

Iv. it Ke esc: d_at -F
1 -9 n 1 e to Petitioner's exc. n
tl t. 2: ct.

In Petitioner's request for a hearing, Petitioner alleged
that he was exempt from exclusion since the actions
leading up to his conviction were the type of payment
practices described at 42 C.F.R. § 1001.952. Section
1001.952 lists various exemptions from exclusions imposed
under section 1128B of the Act. Since the basis for
Petitioner's exclusion was his conviction for fraud in
connection with the delivery of an item or service under
section 1128(b)(1) of the Act, these exemptions do not
apply in this case.

CONCLUSION

Section 1128(b)(1) of the Act permits the Secretary of
HHS, in the exercise of her discretion, to exclude any
individual from participation in the Medicare and
Medicaid programs who has been convicted of a criminal
offense relating to fraud, theft, embezzlement, or other
financial misconduct, in connection with the delivery of
a health care item or service. There is no indication
that the Secretary's discretion was misused in this case.

/s/

Joseph K. Riotto
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Peter Anyakora, M.D., DATE: December 15, 1995
Petitioner,

Docket No. C-95-146
Decision No. CR407

-ve

The Inspector General.

DECISION

I conclude that Petitioner, Peter Anyakora, M.D., is
subject to a five-year minimum mandatory period of
exclusion from participation in the Medicare, Medicaid,
Maternal and Child Health Services Block Grant and Block
Grants to States for Social Services programs.!

I. Procedural History

By letter dated January 24, 1995, the Inspector General
(I.G.) of the United States Department of Health and
Human Services (DHHS) notified Petitioner that he was
being excluded for five years from participation as a
provider in Medicare and Medicaid. The 1.G. advised
Petitioner that he was being excluded as a result of his
conviction of a criminal offense relating to neglect or
abuse of patients in connection with the delivery of a
health care item or service, and that the exclusion of
individuals convicted of such offenses is mandated by
section 1128(a)(2) of the Social Security Act (Act).

The I.G. further advised Petitioner that, for exclusions
imposed pursuant to section 1128(a)(2), section

' Unless otherwise indicated, hereafter I refer
to all programs from which Petitioner has been excluded,
other than Medicare, as "Medicaid."

2? Those parts of the Act discussed herein are
codified in 42 U.S.C. § 1320a-7.
2

1128(c) (3)(B) of the Act mandates a five-year minimum
period of exclusion.

By letter dated June 10, 1995, Petitioner filed a request
for hearing. During prehearing conferences held on July
18 and 19, 1995, Petitioner requested an in-person
hearing. During the conferences, I noted that the issues
in the case were limited only to: 1) whether Petitioner
was convicted of a criminal offense and, if so, 2)
whether the offense was related to neglect or abuse of
patients in connection with the delivery of a health care
item or service. Based on the parties' representations
at the conferences, it did not appear to me that there
were disputed issues of fact relevant to the issues in
the case which would require an in-person hearing.
Instead, I determined that the case could be heard based
on a written record. Therefore, I denied Petitioner's
request for an in-person hearing and established a
schedule for the parties to file briefs and documentary
evidence.

The I.G. filed a brief (I.G. Br.), including a statement
enumerating the material facts and conclusions of law the
I.G. considered to be uncontested. The I.G.'s brief was
accompanied by I.G. Exhibits (I.G. Exs.) 1 through 5.
Petitioner responded with a brief (P. Br.), accompanied
by eight attachments he offers as exhibits in the case.
These attachments are not marked in accordance with my
Order of July 27, 1995. Petitioner marked only the first
attachment, which he termed "Exhibit A." The Petitioner
then filed a supplemental brief (P. Supp. Br.),
accompanied by Petitioner's exhibits (P. Exs.) 1 through
10. To avoid confusion with Petitioner's supplemental
submission, I have marked the attachments accompanying
Petitioner's initial brief as P. Exs. A through H.

Petitioner has not objected to the admission into
evidence of the exhibits submitted by the I.G. The I.G.
has not objected to the admission into evidence of the
exhibits submitted by Petitioner. In the absence of
objection, I admit into evidence I.G. Exs. 1 through 5,
and P. Exs. A through H and 1 through 10.

After careful consideration of the briefs and documentary
evidence submitted by the parties, I conclude that there
exist no facts of decisional significance genuinely in
dispute and that the only matters to be decided are the
legal implications of the undisputed facts. Based on
these facts, I conclude that Petitioner is subject to the
minimum mandatory exclusion provisions of sections
1128(a)(2) and 1128(c)(3)(B) of the Act. Accordingly, I
affirm the I.G.'s determination to exclude Petitioner
3

from participation in Medicare and Medicaid for a period
of five years.

II. Issues

The issues are: 1) whether Petitioner was convicted of a
criminal offense under federal or State law; and 2) if
Petitioner was so convicted, whether the conviction
relates to neglect or abuse of patients in connection
with the delivery of a health care item or service.

III. Findings of Fact and Conclusions of Law

1. At all relevant times, Petitioner was a resident
physician at Harlem Hospital Center in New York, New
York. Currently, Petitioner is a medical doctor
practicing in Florida. I. G. Ex. 1; I.G. Ex. 3 at 3; P.
Br. at 1.

2. On February 10, 1993, the State of New York filed a
four-count criminal indictment against Petitioner. I.G.
Ex. 1.

3. The four counts of the indictment charged Petitioner
with offenses occurring from about September 22, 1991 to
about February 28, 1992, during Petitioner's residency at
Harlem Hospital Center in New York. Specifically,
Petitioner was charged with violating public health law
section 2805-b(2) (Count One), falsifying business
records in the first degree (Counts Two and Three), and
tampering with physical evidence (Count Four). I.G. Ex.
1.

4. Following a jury trial, Petitioner was convicted of
all four counts of the indictment. I.G. Exs. 4 - 5.

5. Count One of the indictment alleged that, on or about
September 22, 1991, Petitioner refused to treat a person
arriving at a general hospital to receive emergency
medical treatment who was in need of such treatment.
Count One alleged specifically that, while employed as a
resident physician, Petitioner refused to treat CB’, a
woman who arrived at Harlem Hospital Center in need of
emergency medical assistance in the delivery of a child.
I.G. Ex. 1.

* To preserve this woman's privacy, I refer to

her by her initials only.
4

6. Petitioner's conviction of Count One of the
indictment constitutes a conviction of a criminal
offense. Act, sections 1128(a) (2), 1128(i)(1); Finding
4.

7. Petitioner's conviction of Count One of the
indictment relates directly to neglect of a patient in
connection with the delivery of a health care item or
service. Act, section 1128(a)(2); Findings 4, 5.

8. The Secretary of DHHS (Secretary) has delegated to
the I.G. the authority to exclude individuals from
participation in Medicare and to direct their exclusion
from participation in Medicaid. 48 Fed. Reg. 21,662
(1983); 53 Fed. Reg. 12,993 (1988).

9. The I.G. is required to exclude Petitioner from
participation in Medicare and to direct his exclusion
from participation in Medicaid. Act, section 1128(a) (2).

10. The minimum period of exclusion pursuant to section
1128(a)(2) is five years. Act, section 1128(c) (3) (B).

11. Neither the I.G. nor an administrative law judge has
the authority to reduce the five-year minimum exclusion
mandated by sections 1128(a)(2) and 1128(c)(3)(B) of the
Act.

IV. Discussion

The I.G. excluded Petitioner from participation in
Medicare and directed that Petitioner be excluded from
participation in Medicaid, pursuant to section 1128 (a) (2)
of the Act. This section mandates the exclusion of

{aJny individual or entity that has been
convicted, under Federal or State law, of a
criminal offense relating to neglect or abuse
of patients in connection with the delivery of
a health care item or service.

A. Petitioner has been convicted of a
criminal offense.

I have found that Petitioner was convicted of refusing to
treat a person arriving at a general hospital to receive
emergency medical treatment who was in need of such
treatment. Findings 2 - 5. Petitioner's conviction
falls within the meaning of section 1128(i)(1) of the
Act, in that a judgment of conviction has been entered
against him by a State court. Thus, Petitioner has been

5

convicted of a criminal offense within the meaning of
section 1128(a)(2) of the Act. Finding 6.

Petitioner does not dispute that he was convicted of a
criminal offense within the meaning of section 1128(i) of
the Act. Instead, Petitioner maintains that he should
not have been convicted. Petitioner maintains that he
has never refused treatment to anyone. P. Br. at 1.
Petitioner asserts that Harlem Hospital Center concluded
that "[t]here was NO refusal of patient care but rather,
there was a delay due to overcrowding." P. Br. at 3.
Petitioner asserts further that there was no "medical
Emergency with respect to pregnant mother," CB. P. R.
Br. at 1. Petitioner alleges that there was a "coverup
on the part of the prosecutor," and asserts that his
convictions are the result of "UNJUST PROSECUTION,
DISCRIMINATION, SCAPEGOATING, PROSECUTORS RECKLESS
VIOLATION OF HUMAN AND INDIVIDUAL RIGHTS UNDER THE
CONSTITUTION, AND HIGH-TECH LYNCHING." PP. Br. at 3.

Petitioner's arguments are not persuasive. Petitioner
may not argue the merits of his criminal case in this
administrative proceeding. His arguments amount to an
impermissible collateral attack on his conviction. In
this regard, an appellate panel of the Departmental
Appeals Board held in the case of Peter J. Edmonson, DAB
1330 (1992):

{ijt is the fact of the conviction which causes the
exclusion. The law does not permit the Secretary to
look behind the conviction. Instead, Congress
intended the Secretary to exclude potentially
untrustworthy individuals or entities based on
criminal convictions. This provides protection for
federally funded programs and their beneficiaries
and recipients, without expending program resources
to duplicate existing criminal processes.

Id. at 4.
Further, the applicable regulations provide:

{wjhen the exclusion is based on the existence of a
conviction, . . . the basis for the underlying
determination is not reviewable and the individual
or entity may not collaterally attack the underlying
determination, either on substantive or procedural
grounds.

42 C.F.R. § 1001.2007(da).
6

The correct forum for Petitioner to have disputed the
circumstances of his criminal case is the State court in
which he was charged criminally. Paul R. Scollo, D.P.M.,

DAB 1498, at 14 (1994); Francis Shaenboen, R.Ph., DAB
1249, at 9 (1991).

B. etitioner's conviction is ated to
neglect* of patients in connection
with the delivery of a health care
item or service.

Although the term neglect is not defined in section
1128(a) (2) of the Act, a common and ordinary meaning of
the term includes the failure to satisfy a duty of care
to another person. Lee G. Balos, DAB CR378, at 7 (1995),
aff'd, DAB 1541, at 4 (1995); see also Summit Health
Limited, dba Marina Convalescent Hospital, DAB 1173, at 8
(1990); Janet Wallace, L.P.N., DAB 1326, at 10 (1992) (a
common meaning is "to fail to care for or attend to
sufficiently"). Given the fact of his conviction, there
can be no doubt that Petitioner breached his duty of care
to this patient. Petitioner's criminal offense, refusing
to treat a person arriving at a general hospital to
receive emergency medical treatment who was in need of
such treatment, on its face relates to neglect of a
patient in connection with the delivery of a health care
item or service. Thus, Petitioner's conviction relates
to neglect of a patient in connection with the delivery
of a health care item or service within the meaning of
section 1128(a)(2) of the Act.

Petitioner contends, however, that his offense is not
related to neglect, within the meaning of section
1128(a) (2) of the Act. In support of his contention,
Petitioner alleges: 1) he was only a resident physician,
and the supervising attending physician, not Petitioner,
was responsible for making decisions regarding patient
care (P. Br. at 2); 2) he was responding to a medical
emergency pertaining to another patient (P. Br. at 3); 3)
CB's emergency status was precipitated after Petitioner
first saw her, by EMS personnel who used a scalpel to
break her baby's bag of water (P. Br. at 3); and 4) CB's
companion terrorized and threatened Petitioner, causing a
delay in CB's evaluation. P. Supp. Br. at 2 - 3.

Petitioner's allegations, even if true, do not alter my
conclusion that his conviction is related to the neglect
of patients in connection with the delivery of a health

4 Petitioner's offense relates to neglect. I do
not find that Petitioner's offense relates to abuse.
7

care item or service. Petitioner's allegations amount to
an impermissible collateral attack on his conviction and
are not relevant to my determination that his conviction
is related to neglect of patients in connection with the
delivery of a health care item or service. See Scollo,
DAB 1498, at 14; Shaenboen, DAB 1249, at 9.

Petitioner argues also that no neglect occurred because
neither CB nor her baby suffered physical harm. However,
no actual harm is required for a conviction to relate to
neglect of patients. Balos, DAB 1541, at 6.

Cc. Neither the I.G. nor an
administrative law judge has the
discretion to exclude Petitioner for
less than the mandatory minimum
period of five years.

After careful review of the record, I conclude that the
I.G. properly classified Petitioner's conviction of the
enumerated criminal offenses as falling under the
mandatory exclusion authority of section 1128(a)(2) of
the Act. The law requires that Petitioner be excluded
for at least five years. Act, section 1128(c) (3) (B).

Once a section 1128(a)(2) violation is established,
neither the I.G. nor an administrative law judge has any
discretion to exclude a provider for less than the
minimum mandatory period of five years. Balos, DAB 1541,
at 7.

D. Other arguments advanced by Petitioner do not
persuade me that I have the authority either to
conclude that there was no basis for
Petitioner's exclusion or to change the_
effective date of Petitioner's exclusion.

Petitioner alleges that he did not receive notice of the
exclusion the I.G. imposed and directed against him on
January 24, 1995, until his employer in Florida, the
Women's Health Center of Hardee County, informed him that
requests for Medicaid reimbursement for his services were
being denied. June 10, 1995 Request for Hearing; July
27, 1995 Order and Schedule for Filing Briefs and
Documentary Evidence; P. Supp. Br. at 1. The record
reflects that the letter notifying Petitioner of his
exclusion is dated January 24, 1995. The notice letter
was addressed to Petitioner and was mailed to a post
office box in Baltimore, Maryland. Petitioner alleges
that this post office box has never been connected to
him. Petitioner alleges also that he has been residing
in Florida since November 1993. P. Supp. Br. at 1. For
8

the purposes of this decision, I accept Petitioner's
allegations as true.

Based on this lack of notice, Petitioner argues that he
has been denied due process under the United States
Constitution, because he was excluded before receiving
notice of his exclusion. Petitioner appears to argue
further that, because his exclusion is unconstitutional,
he should not be excluded at all. I do not have the
authority to decide the constitutional validity of an
exclusion imposed and directed in accordance with the Act
and regulations. Balos, DAB 1541, at 9; Shanti Jain,
M.D., DAB 1398, at 7 (1993). Moreover, the Act and
regulations do not entitle Petitioner to a pre-exclusion
hearing. The Act and regulations give Petitioner only
the right to request a hearing on the issue of whether
there is a basis for his exclusion. 42 C.F.R. §
1001.2007. I have afforded Petitioner the hearing (based
on the written record) contemplated by the Act and
regulations.

Petitioner appears to argue also that if, in fact, he
must be excluded, his exclusion should not have become
effective until after he received notice of the
exclusion. I do not have the authority to alter the
effective date of an exclusion imposed and directed in
accordance with the Act and regulations. 42 C.F.R. §
1005.4(c); Samuel W. Chang, M.D., DAB 1198, at 9 - 11
(1990); Jain, DAB 1398 (1993); Kathleen M. Casey, DAB
CR401 (1995).

V. Conclusion
The I.G. properly imposed and directed against Petitioner

a five-year minimum mandatory period of exclusion from
participation in Medicare and Medicaid.

/s/

Jill s.clifton
Administrative Law Judge