Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

RehabCare Group East, Incorporated d/b/a RehabCare,
(CCN: 55-6531)

Petitioner
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-620
Decision No. CR2323

Date: February 15, 2011

DECISION

I sustain the determination made by the Centers for Medicare & Medicaid Services
(CMS) to terminate Petitioner’s participation as a provider of services in the Medicare
program.

I. Background

Petitioner RehabCare Group East, Incorporated d/b/a RehabCare, operated a
rehabilitation agency whose primary location was in Laguna Hills, California. Petitioner
also provided services in other locations in California over a geographical area spanning
several hundred miles. CMS Exhibits (CMS Exs.) 2, at 2; 3, at 2; 10. The services
offered by Petitioner included physical therapy, speech pathology, and occupational
therapy. CMS Ex. 1, at 1, 7; CMS Ex. 3, at 1. A recertification survey completed by the
California Department of Public Health (state agency) on August 27, 2009 (August
survey), found that Petitioner was not in compliance with six conditions of participation
(CoPs) at 42 C.F.R. Part 485, Subpart H (specifically 42 C.F.R. §§ 485.709, 485.713,
485.715, 485.723, 485.725, and 485.727). Petitioner submitted a plan of correction and
the state agency resurveyed Petitioner on December 21, 2009 (December survey). The
resurvey found that Petitioner continued to be out of compliance with three CoPs; 42
C.F.R. §§ 485.709 (administrative management), 485.715 (speech pathology services),
and 485.727 (disaster preparedness). CMS notified Petitioner by letter dated March 4,
2010, that it was terminating Petitioner’s provider agreement as of April 1, 2010, based
on the findings of the December survey. CMS specifically notified Petitioner that the
deficiencies, either individually or in combination, substantially limited Petitioner’s
capacity to render adequate care or adversely affected patient health and safety,
establishing a basis for its conclusion that the CoPs were not met. CMS Ex. 1, at 1-4; 42
CFR. § 488.26(b).

Petitioner requested a hearing by letter dated April 5, 2010. The case was assigned to me
for hearing and decision on April 19, 2010, and my Acknowledgment and Initial
Docketing Order was issued on that date. In response to my Order, CMS filed a motion
for summary disposition (CMS Br.), accompanied by 13 exhibits. Petitioner filed a
response (P. Br.), accompanied by exhibits A and B. CMS filed a motion for leave to file
a reply, with an attached reply (CMS Reply). In the absence of objection, I admit CMS
Exs. 1-13 and Petitioner’s exhibits (P. Exs.) A and B into evidence. I will also consider
the arguments CMS advances in its Reply.

II. Legal Background

Facilities that participate in Medicare may be surveyed on behalf of CMS by state survey
agencies in order to determine whether the facilities are complying with federal
participation requirements. 42 C.F.R. Part 488, Subpart A. CMS may determine that an
institution or agency does not qualify for participation in the Medicare and/or Medicaid
programs if it is not in compliance with the CoPs. 42 C.F.R. § 488.24. The regulations
provide that CMS may terminate a provider agreement if CMS finds that the provider no
longer meets the CoPs. 42 C.F.R. § 489.53.

Ifa provider appeals CMS’s action, then CMS must on appeal make a prima facie case
that the provider has failed to comply substantially with participation requirements. Once
CMS has established its prima facie case, a provider must overcome CMS’s case by a
preponderance of the evidence. MediSource Corporation, DAB No. 2011 (2006);
Batavia Nursing and Convalescent Center, DAB No. 1904 (2004), aff'd, Batavia Nursing
and Convalescent Center v. Thompson, No. 04-3325 (6" Cir. April 15, 2005); Hillman
Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v.
U.S. Department of Health and Human Services, No. 98-3789 (GEB) (D.N.J. May 13,
1999).

The Social Security Act (Act) and regulations make a hearing before an Administrative
Law Judge (ALJ) available to a provider in cases where CMS has terminated its provider
agreement. The scope of the hearing is limited to whether the initial determination CMS
made is correct. 42 C.F.R. § 498.3(b)(8). The hearing is a de novo proceeding.
Anesthesiologists Affiliated, et al., DAB CR65 (1990), aff'd, 941 F.2d 678 (8" Cir. 1991).

An appellate panel of the Departmental Appeals Board (Board) recited the standard for
summary judgment or disposition in Senior Rehabilitation and Skilled Nursing Center,
DAB No. 2300, at 3 (2010), aff'd, Senior Rehabilitation and Skilled Nursing Center v.
Health & Human Services, No. 10-60241 (5th Cir. Dec. 20, 2010). It stated that
summary judgment is appropriate where the record shows that there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter of law.
The party moving for summary judgment bears the initial burden of showing that there
are no issues of material fact for trial and that it is entitled to judgment as a matter of law.
To defeat an adequately supported motion, the non-moving party may not rely on the
denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a
material fact — a fact that, if proven, would affect the outcome of the case under
governing law. In determining whether there are genuine issues of material fact, the
reviewer must view the evidence in the light most favorable to the non-moving party,
drawing all reasonable inferences in that party’s favor. In Holy Cross Village at Notre
Dame, Inc., DAB No. 2291, at 5 (2009), the Board stated that the role of an ALJ in
deciding a summary judgment motion differs from the ALJ’s role in resolving a case after
hearing. An ALJ should not assess credibility or evaluate the weight of conflicting
evidence.’

Ill. Findings and Discussion

My findings of fact and conclusions of law are noted below, in bold, and are followed by
my discussion of each finding.

1. Petitioner was out of compliance with Medicare CoPs at the time of the
December survey.

A rehabilitation agency such as Petitioner is defined by regulation as:

Rehabilitation agency. An agency that —

(1) Provides an integrated interdisciplinary rehabilitation program designed to
upgrade the physical functioning of handicapped disabled individuals by
bringing specialized rehabilitation staff together to perform as a team; and

(2) Provides at least the following services:

(i) Physical therapy or speech-language pathology services.

' Petitioner asserts that it should be allowed to cross-examine Lieutenant Commander
Darren Orgel, who submitted an affidavit on CMS’s behalf. P. Br. at 5. Ido not rely on
this affidavit in making my decision, and Petitioner’s assertion is thus essentially moot.
(ii) Social or vocational adjustment services.
42 C.F.R. § 485.703.

Section 1861(p)(4) of the Act specifies that a rehabilitation agency must meet and
maintain certain CoPs. 42 C.F.R. § 485.701. These CoPs are found in 42 C.F.R. Part
485, Subpart H. Each CoP is contained in a single regulation, which is divided into
subparts called standards. Compliance with a CoP is determined by the manner and
degree to which a provider satisfies the standards within the condition. 42 C.F.R. §§
488.1, 488.26(b). Noncompliance with even one of the standards making up a CoP may
constitute a violation of that CoP if the violation is significant enough. Sonali Diagnostic
Laboratory, DAB No. 2008 (2006); 42 C.F.R. § 488.26(b).

A rehabilitation agency provides services at its primary site and it is that site that has an
approved provider number. State Operations Manual (SOM), Ch. 2, § 2298 (CMS Ex. 4,
at 2).? A rehabilitation agency may also provide services at locations other than its
primary site, including freestanding offices, suites in an office or medical building, or in
existing Medicare/non-Medicare participating providers (skilled nursing facility (SNF) or
hospital). Such sites are termed “extension” locations. An extension location must meet
the CoPs. It may not provide services the primary location does not provide (except
aquatic therapy), but it does not have to provide all services provided at the primary site.
SOM, Ch. 2, § 2298A (CMS Ex. 4, at 2-3). Services may also be provided in a patient’s
home or in a patient’s room in a SNF. Because such locations are not considered
extension locations, neither a patient’s home nor a patient’s room need satisfy the
requirements of the SOM with which an extension location must comply. SOM, Ch. 2, §
2298B (CMS Ex. 4, at 4).

Petitioner argues that it provided its services at a primary site and in patients’ homes or in
rooms in a SNF, and that what it terms non-extension locations should not have been
subject to survey as extension locations, citing the SOM, Ch. 2, § 2298B. Thus, any
results of compliance surveys conducted at those locations should not be considered in
determining whether Petitioner complied with the CoPs here at issue. Petitioner asserts,
moreover, that this is a question of fact, not law, and argues among other things that: the
surveyors required Petitioner’s administrator to list Petitioner’s non-extension locations
as extension locations on the Form CMS-381 (CMS Ex. 10); the distance from the
primary site to the non-extension locations should not be considered to support

While the SOM does not have the force and effect of law, the provisions of the Act and
regulations, interpreted clearly, do have such force and effect. State of Indiana by the
Indiana Dep't of Public Welfare v. Sullivan, 934 F.2d 853 (7th Cir. 1991); Northwest
Tissue Center v. Shalala, | F.3d 522 (7" Cir. 1993). While the Secretary may not seek to
enforce provisions of the SOM, the Secretary may seek to enforce the provisions of the
Act or regulations as interpreted by the SOM.
noncompliance, as nowhere are there stated geographic limits between a primary site and
other locations in a single state; and Petitioner has numerous employees who travel
throughout California to oversee the actions and compliance of its services. P. Br. at 1-6,
18-20. CMS asserts that Petitioner’s argument is contradicted by the Act, regulations,
and CMS guidance.

Petitioner’s argument that the CoPs should not apply to its non-extension locations is
unavailing. The question is one of law. Regardless of where services are provided, a
rehabilitation agency is responsible for complying with the CoPs. The law makes no
distinction between a primary, extension, or other site or location for that purpose. Act,
section 1861(p)(4); 42 C.F.R. §§ 485.701-.729.* The law contains no exception for
services provided in a patient’s home or room in a SNF and reaffirms the requirement
that rehabilitation agencies must be in compliance with applicable CoPs. To allow
otherwise would mean an agency might bill Medicare for providing services in a patient’s
home or room in a SNF without being subject to Medicare participation requirements.
Allowing agencies to bypass rules designed to safeguard patient health and safety
because such services are not provided in a primary or extension site or location would be
in direct contradiction to Medicare participation requirements, which, as CMS notes, are
designed with the patient in mind, not the location where services are provided. CMS Br.
at 20-21; CMS Reply at 2; Act, sections 1861(p)(4), 1866; 42 C.F.R. §§ 489.1, 489.10(a),
489.53(a)(3).

CMS argues that Petitioner is out of compliance with three CoPs. CMS asserts that
Petitioner’s hearing request contains admissions (and omissions) that support CMS’s
findings of condition-level noncompliance.

The admissions referenced by CMS are found at page 6 of Petitioner’s hearing request.
CMS Ex. 2, at 6. Petitioner states that even if deficiencies were present in some
circumstances they did not rise to a level constituting a violation of a CoP, and did not
justify termination of its provider agreement, but instead were mere standard-level
deficiencies. Here is the language Petitioner uses in its April 5, 2010 Request for
Hearing (in quoting it, I have removed the bold-face print from Petitioner’s original
underlined heading to avoid confusion with my own bold-face headings, and I further
note that Petitioner refers to itself in this quoted passage as “Agency,” and should not be
confused with the state agency involved here):

* As noted by CMS, the SOM provision entitled “Exceptions to CoPs,” at SOM, Ch. 2, §
2294 (CMS Ex. 4, at 2), notes that for clinics, rehabilitation agencies, and public health
agencies to participate as providers they must be in compliance with all applicable CoPs,
except that administrative management (42 C.F.R. § 485.709) is not applicable to public
health agencies and rehabilitation program (42 C.F.R. § 485.717) is not applicable to
clinics or public health agencies.

Erroneous Findings on Level of Deficiency Severity

Agency disputes that any Condition Out level deficiencies existed. Even if minor
deficiencies existed at the time of the survey, any such deficiencies did not raise to
the level of Condition Out status. Examples of minor deficiencies which should
not have resulted in Condition Out status include, but are not limited to, the
following:

485.709

° A number of the oversight issues cited in the survey were related to

contract details which did not contribute to deficits in patient care.

° While patient care was started prior to insurance verification on 2
patients, this initiation of care would not be prohibited by the
COPs provided that Agency did not bill for those services if the
patient did not have coverage for said services even if Agency
failed to advise the patient that their care would not be covered.

° While social and vocational services are no longer required
under the COPs, the COPs do not preclude such screening.

° Agency Staff were educated on assorted infection control and
emergency management policies. However, some staff failed to
answer Surveyor’s questions correctly. These erroneous answers
resulted in part due to the confusing nature of the questions and
manner of questioning as presented by the CDPH surveyor.

485.715

° This condition out level deficiency was isolated to one sole
patient at a “non-extension” site. There was no evidence of an
established pattern or practice deficient (sic) with regard to the
provision of speech therapy.

° No Speech Therapy services were delivered at the primary site
since October 22, 2009. Furthermore, there had been no referrals
for speech therapy and the COPs do not specify how frequently
speech services must be provided at the primary site.

Below, I find Petitioner out of compliance with participation requirements at 42 C.F.R.
§§ 485.709 and 485.715 at the condition level. Moreover, if even one CoP is out of
compliance, CMS is justified in terminating Petitioner’s provider agreement. Here, I
sustain CMS’s determination of a deficiency at 42 C.F.R. § 485.715, and find that
condition-level deficiency alone justifies CMS’s decision to terminate. However, I also
discuss 42 C.F.R. § 485.709, as providing another CoP out of compliance. I do not
address the participation requirement at 42 C.F.R. § 485.727, because it is not necessary
that I do so to sustain CMS’s decision to terminate Petitioner’s provider agreement.
Golden Living Center — Frankfort, DAB No. 2296, at 3 n.2 (2009); Community Skilled
Nursing Centre, DAB No. 1987 (2005); Batavia Nursing and Convalescent Center, DAB

No. 1904.
a. Petitioner was out of compliance with the CoP at 42 C.F.R.
§ 485.715 (speech pathology services).

CMS argues that Petitioner’s admissions show that there are no material facts in dispute
regarding Petitioner’s violation of this CoP. The CoP requires that if speech pathology
services are offered, an organization provide an adequate program of speech pathology
services and have an adequate number of qualified personnel and equipment necessary to
carry out its program and fulfill its objectives.’ The standard at 42 C.F.R. § 485.715(a)
includes that an adequate program must provide diagnostic and treatment services to
effectively treat speech disorders. CMS notes that in its hearing request Petitioner
admitted that at the time of the survey it had not provided speech services at its primary
site since October 22, 2009, a period of about two months. Since Petitioner was not
providing speech pathology services at its primary site, it was not authorized to offer such
services elsewhere, because the state agency surveyor was precluded from assessing the
adequacy of Petitioner’s services at its primary site and even from determining whether
Petitioner was in compliance with the CoPs at that primary site.

CMS argues also that Petitioner failed to have the equipment and facilities required under
42 C.F.R. § 483.715(b) for speech pathology services, having no speech pathology
equipment at its primary site or at non-extension locations. CMS notes that Petitioner did
not deny that it had no speech pathologist for the primary site at the time of the survey,
that it had no space set aside at its primary site for providing speech pathology services,
and it had virtually no speech pathology equipment. CMS notes that Petitioner’s speech-
language pathology services policy requires that it provide an array of services that
require the use of instrumentation and adaptive devices in at least some circumstances,
and that its scope of practice and clinical interventions follow American Speech-
Language Hearing Association (ASHA) guidelines, which state that the practice of
speech-language pathology involves using instrumentation and selecting, fitting, and
establishing effective prosthetic/adaptive devices for communicating, swallowing or
other upper aerodigestive functions. CMS Ex. 5, at 7, 12-13. The surveyor did not
observe or discover, and was not shown, any such equipment at the primary site, except
for a book titled “Picture Communicator, Intermediate Size for Everyday Communication
Situations.” CMS Ex. 1, at 47. Moreover, CMS asserts that Petitioner’s
receptionist/physical therapy aide admitted to the surveyor that Petitioner had no speech
pathology area, and a tour of the facility confirmed that there was no space and no

+ Rehabilitation agencies cannot provide services at extension locations not provided at
the primary site. SOM, Ch. 2, § 2298A (CMS Ex. 4, at 3).
equipment in operation to deliver speech pathology services.’ CMS Ex. 1, at 46-47.
Petitioner’s plan of correction after the August survey states that Petitioner would provide
speech services in a leased private treatment room and that speech language pathologists
would be oriented to the practice by its administrator on December 1, 2009. CMS Ex. 1,
at 48.

CMS argues that in its hearing request Petitioner admitted the speech pathology services
it provided to one patient at a non-extension location were deficient. CMS states that the
patient referred to is Patient 5, who began receiving speech pathology services on
December 1, 2009. Patient 5 resided on the “memory unit” of one of the facilities where
Petitioner provided services. Patient 5 was referred to Petitioner by the facility because
of a decreased ability to swallow a regular diet. The speech pathologist, however,
provided no documentation of working with facility staff regarding Patient 5’s ability to
tolerate “chewing and swallowing the least restrictive diet.” CMS Ex. 1, at 43-44. CMS
asserts treatment notes dated December 2, 8, and 9 were inadequate, because they only
documented “follow safety precautions” and decreased “cognition ongoing.” CMS Ex. 7,
at 11-12; CMS Ex. 1, at 44. The treatment notes had no additional documentation to
indicate Patient 5’s safety precautions, the level and impairment of the patient’s
decreased cognition, and what type, if any, caregiver training had been done. Petitioner’s
administrator had no information about what speech pathology services Patient 5 was
receiving. CMS Ex. 1, at 44-45. CMS argues that the administrator should have known
what services Patient 5 was receiving because patient records are to be kept at the
primary site and an administrator is responsible for communicating with the clinician if
problems or questions arise concerning a patient’s chart.

Petitioner argues that its admission that no speech pathology services were provided at its
primary site after October 22, 2009, is not an admission that such services were not
available, but instead suggests only that during that period no requests were made for
Petitioner to provide such services. Petitioner argues that it “cannot force or solicit
patients off the street solely to be able to demonstrate that it provides speech pathology
services at its primary site. These services are scheduled and provided based on
appropriate requests for the speech pathology services.” P. Br. at 9-10. Had Petitioner
received such a request between October and December, 2009, Petitioner asserts that it
would have provided the services. P. Br. at 10.

Petitioner also asserts that the regulations do not specify the length of time between when
various types of services are offered by a rehabilitation agency. Here, although Petitioner
admits it did not provide speech pathology at the primary site for two months, it
maintains that such services were offered and could have been referred to a contract

* CMS asserts that a speech pathologist who had not treated patients at Petitioner’s
facility since October 22, 2009, revealed that she preferred to treat patients in their homes
because the homes were quiet and there were fewer distractions. CMS Ex. 1, at 45, 47.
agency if needed. Petitioner asserts that it had a written procedure in place to provide
such services and it provided a copy of the procedure to the surveyor. Furthermore,
Petitioner stated that if a patient needed speech pathology Petitioner would retain a
contract agency or pathologist to provide such services until a speech pathologist was
ired. Petitioner asserts that although it did not have a full-time speech pathologist at its
primary site, it employs many speech pathologists who are available to provide such
services at the primary site if so requested. Petitioner notes that while the SOM provides
‘or surveyors to directly observe the actual provision of care and services, the SOM does
not require that an agency have a full-time therapist for every discipline or have
discipline-appropriate patients on the caseload to treat. And, although the SOM provides
that speech pathology services could not be provided at extension locations if not
provided at the primary location, Petitioner did not provide such care to Patient 5 at an
extension location, but instead provided it at a non-extension location. Petitioner also
asserts it did not admit in its hearing request that it provided deficient services to a
patient.

As noted by CMS in its reply, Petitioner did not directly address the deficiency alleged by
CMS with regard to Patient 5, except to generally deny the allegation by stating “[n]o
such admission ever was made that conceded RehabCare provided deficient services.” P.
Br. at 10. Merely denying an allegation is insufficient to overcome summary judgment.
Senior Rehabilitation and Skilled Nursing Center, DAB No. 2300. Petitioner’s failure to
offer more than a general denial regarding the allegation supports a finding that there is
no issue of disputed material fact regarding the deficient speech pathology services
provided by Petitioner to Patient 5.

I find that the failure to provide adequate speech pathology services to Resident 5 alone is
sufficient to find Petitioner out of compliance with this CoP. The failure by the speech
pathologist to document working with facility staff and to provide adequate treatment
notes was serious. The failure of Petitioner’s administrator to know about the speech
pathology services Resident 5 was receiving is even more serious, as it points out the
complete absence of supervision by Petitioner in general and its administrator in
particular over the speech pathologist working at Petitioner’s self described non-
extension site. In the absence of adequate oversight, supervision, and documentation
there is no way for Petitioner to know whether a patient is being correctly treated.

However, Petitioner’s deficient treatment of Resident 5 alone is not the only example of
Petitioner’s failure to comply with this CoP. Petitioner has not shown that speech
pathology services were actually being offered at the primary site at the time of the
survey. While Petitioner asserts it had a procedure in place to provide speech pathology
services and that it would do so through a contract agency, it admits that it had no speech
pathologist on staff at the primary site. Its only response to CMS’s assertions that it did
not have an adequate array of instrumentation and adaptive devices at its primary site is
to state that it had the one “Picture Communicator” book available, and that it would rent

10

any other equipment it needed to treat a patient, justifying the situation through the
assertion that it had no patients requiring other instrumentation at the primary site. P. Br.
at 12-13. In referring to the surveyor’s finding that there was no space to provide speech
pathology services, Petitioner asserts its “Corrective Action Plan” (“CAP”) responding to
the August 27, 2009 survey stated speech patients would be treated in a private meeting
room if requested. This private meeting room was available at the time of the resurvey .
...” P. Br. at 13-14. However, the survey in question is not the August survey, but the
December survey, and an allegation of compliance made in a corrective action plan is not
evidence of compliance.

Even accepting all Petitioner’s arguments and assertions as true — that it had one device
available, that it would rent equipment necessary to treat a patient, and that it would make
space available to treat a patient — this does not show that Petitioner was providing
speech services at its primary site and it certainly does not show that Petitioner was
capable of providing speech pathology services at its non-extension locations. In fact,
Petitioner’s own arguments show that it did not have the capacity to supervise and
oversee speech pathology services, as exemplified by its failure to adequately treat or
supervise the treatment of Patient 5.

b. Petitioner was out of compliance with the CoP at 42 C.F.R.
§ 485.709 (administrative management).

The CoP requires that a rehabilitation agency must have an effective governing body that
is legally responsible for the conduct of the agency, and that the governing body
designate an administrator and establish administrative policies. CMS argues that there
were deficiencies under three of the four standards under this CoP. Those three specific
standards are entitled “Governing body,” “Administrator,” and “Patient care policies.”
42 C.F.R. § 485.709(a), (b) and (d); CMS Ex. 1, at 1, 3, 12, 27.

CMS notes that Petitioner had therapy locations in assisted living facilities. CMS Ex. 1,
at 54; CMS Ex. 3. One location was over 441 miles from Petitioner’s primary site;
another was over 179 miles from Petitioner’s primary site; and two others were more than
40 miles from the primary site. While CMS admits that the SOM does not set a limit for
how far an extension location may be from a primary site, the SOM provides some
guidance in stating:

An extension location cannot be denied based solely on geographical distance. If
there is considerable geographical distance between the primary site and the
extension location(s), it is important to determine whether the primary site can
adequately supervise the staff at the extension location(s) as well as manage and
oversee all operations of the extension location. Supervision should be available
by telephone and be able to drive to the extension location in a reasonable amount
of time, provide ongoing staff training, etc.
11

CMS Ex. 4, at 6; SOM, Ch. 2, § 2302. CMS notes that Petitioner disagrees that the
distances between its primary site and other locations is a problem, but argues that
Petitioner has failed to explain the basis of the disagreement and how, despite these
distances, it maintained oversight and control over the non-extension locations.

CMS points out that in its hearing request Petitioner admitted there were “oversight
issues” but that they did not contribute to deficits in patient care. CMS Ex. 2, at 6. CMS
asserts that this claim ignores the underlying reality that according to Petitioner’s
administrator and Petitioner’s policy, Petitioner was responsible for ensuring that each
therapy had the equipment it needed, but that staff at Facility 5 used the SNF’s
equipment. Moreover, Petitioner had no procedures regarding how staff was to obtain
equipment and supplies. CMS Ex. 1, at 15-16; CMS Ex. 5, at 2.

CMS also argues that Petitioner’s primary site was not in control of the services being
rendered at other locations. It is Petitioner’s responsibility to ensure that its patients
receive the necessary treatment and care. Here, Petitioner’s primary site did not receive
patient treatment records until one or two weeks after care had been provided. CMS Ex.
1, at 11-12. Thus, Petitioner was not providing on-going oversight of direct patient care.

CMS argues that Petitioner’s administrator’s failings also demonstrate its lack of
oversight and control. An administrator is responsible for completing data entry of all
patient documentation onto tracking logs for each provider site, coordinating, monitoring
and managing missing or incomplete documentation for each site, and for communicating
with clinicians regarding questions or problems with patient charts. CMS Ex. 1, at 25.
Yet, the statement of deficiencies notes that, among other things, the administrator
admitted he had not reviewed Patient 6’s record (CMS Ex. 1, at 21-22); a discharge
summary for speech pathology services last provided to Patient 2 on October 22, 2009,
was missing; the administrator had not followed-up on that missing discharge summary
or documented actions to obtain it (CMS Exs. 1, at 22; 6); and there were no weekly
progress notes for occupational therapy sessions provided between October 22-28, 2009,
for Patient 8, no discharge summary for occupational therapy for Patient 8 (who was
discharged on November 2, 2009), and no documentation that the administrator had
followed up on missing documentation regarding Patient 8.° CMS Ex. 8; CMS Ex. 1, at
22-23.

°CMS argues also that agency staff did their own performance evaluations and asserts
that because they were self reporting Petitioner had no meaningful information about
their performance. I accept Petitioner’s assertions that employee self-evaluation is just
one step in Petitioner’s review process, which apparently also includes meetings with
supervisory staff to discuss their performance and performance goals. P. Br. at 16.
12

Petitioner responds to CMS by arguing that its CAP following the August 2009 survey
explained how it maintains oversight and control of its non-extension locations and how
its staff obtained equipment and supplies. Petitioner references the affidavit of Laurie
Thomas (P. Ex. B), the senior vice president of RehabCare Group, Inc., in which she
states that Petitioner utilizes “trackers” (a term she does not define or explain in any
useful detail), including the “Agency Extension Site Personnel File Monitoring Tool” as
one of two “trackers” to monitor services to patients.’ Petitioner also utilizes the
“Agency Non-Extension Site Personnel File Monitoring Tool,” but states that document
is not as comprehensive as the extension site tool and the extension site tool was “chosen
to be used to proactively increase compliance and oversight of agency personnel. . . .”

P. Ex. B, at 4. Petitioner notes that because the surveyors found this process insufficient
during the August survey, Petitioner implemented what it terms “Assistant Agency
Administrators” at each non-extension site in November 2009, and asserts that these
entities provided ongoing oversight and/or direct patient care at those locations. P. Ex. B,
at 4. Petitioner asserts that these assistant agency administrators were in place at the time
of the December resurvey. Petitioner asserts the surveyor overlooked or disregarded this
process during the survey and that there is thus a factual dispute as to whether or not the
process was in place at the time of the resurvey.

Petitioner argues that if there are deficiencies under this section of the regulations they do
not support a finding of condition-level noncompliance. Petitioner argues that CMS
cannot demonstrate any patient harm it can link to Petitioner’s furnishing inadequate
care. Petitioner reiterates its argument that the therapy services provided are located in
patient’s rooms in SNFs or their homes and that these non-extension locations are not
subject to survey or to the requirements set forth for extension locations.

Petitioner also argues that CMS’s allegation that it did not have a written plan with
procedures to be followed when staff treated patients in their homes or in a SNF is
incorrect. It asserts that CMS Ex. 5 contains all written plans and procedures for staff to
follow both at the primary site and in a patient’s home or room. Petitioner asserts these
policies were available on site during the December 2009 resurvey.

Petitioner argues finally that there is no basis for a deficiency finding based solely on the
distance between various locations where therapy services are provided. Petitioner
asserts that as a national company engaged in providing post-acute care services,
Petitioner has a large team of trained professionals to oversee the services it provides,
wherever they are provided. P. Ex. B, at 1-2. Although California is a large state — the
third largest in area of all the 50 states — and some of the distances noted earlier in this
Decision are far more than modest, geography itself is not a prima facie indicator of a
facility’s inability to manage its far-flung components. Given the lack of evidence to

7 Petitioner states that by naming this an “extension” tool it is not admitting that the tool
is limited to use at “extension” locations. P. Ex. B, at 4.
13

demonstrate that distance between the primary site and other locations is in and of itself a
basis for a deficiency, Petitioner has demonstrated that CMS is not entitled to summary
judgment on that point.

CMS’s motion for summary disposition referenced specific instances of “oversight
issues” and administrative failures that Petitioner did not specifically rebut. Thus, there
are no genuine questions as to several critical and material facts. Those points include
Petitioner’s staff's established use of SNF equipment instead of their own; the established
ailure of Petitioner’s primary site to receive patient treatment records until one or two
weeks after care had been provided; the established failure of Petitioner’s administrator to
review Patient 6’s record; and the established facts that a discharge summary was missing
and not followed-up on by the administrator for Patient 2, that there were no weekly
progress notes for occupational therapy sessions or a discharge summary, and that no
documentation exists to show that the administrator followed-up on the missing
documentation for Patient 8. P. Br. at 15-17; P. Ex. A (the affidavit of Petitioner’s
administrator). Thus, there is no dispute of material fact regarding these deficiencies. I
find these failures alone show that Petitioner failed to provide adequate administrative
services.

Petitioner argues that its corrective action plan to the August survey shows that it was
able to maintain oversight and control over the locations where it provided therapy
services. Putting aside whether Petitioner’s corrective action plan to a prior survey is
even relevant, an allegation of compliance made in such a plan is not a substitute for a
finding of actual compliance. The December survey found Petitioner remained out of
compliance with this CoP. Moreover, while Ms. Thomas’ affidavit asserts that placing
assistant agency administrators at each non-extension site in November 2009 provided
the necessary oversight of patient care, her assertions do not create a genuine dispute of
material fact. As noted by CMS, Petitioner does not say what the responsibilities of the
assistant agency administrators were or are, what their qualifications were or are, how
they provided oversight or direct patient care, or whether they were actually providing
such oversight and care. Moreover, since Petitioner had no designated office or clinical
space at its non-extension sites, Petitioner did not even make clear where these
individuals were located.

I agree with CMS that Petitioner’s deficiencies constitute condition-level noncompliance.
The deficiencies substantially limit Petitioner’s capacity to furnish adequate care and may
adversely affect the health and safety of patients. Petitioner’s administrative failures
show that Petitioner lacked the necessary control and oversight of the care its staff were
providing at multiple and geographically-distinct locations. Without such oversight and
control Petitioner could not ensure that its own policies were being followed, or ensure
the quality of the care its staff provided, to determine whether the care provided was
appropriate.
14

2. CMS is authorized to terminate Petitioner’s participation as a provider of
services in the Medicare program.

Pursuant to 42 C.F.R. § 489.53(a), CMS may terminate a provider agreement with any
provider if CMS finds the provider no longer meets the appropriate CoPs. As I have
found Petitioner in violation of two conditions of participation, CMS is authorized to
terminate its provider agreement.

3. Iam without authority to consider Petitioner’s due process arguments.

Petitioner argued in its hearing request that the state agency and CMS failed to provide
Petitioner with due process during the survey process by failing to ask questions of its
staff in a “manner that could be easily understood” and by failing to adhere to a timely
process of communication. CMS Ex. 2, at 4-5. I do not have the authority to consider
whether procedures utilized by CMS or a state survey agency in determining compliance
with the conditions of participation violate a petitioner’s constitutional right to due
process. 42 C.F.R. § 498.3; Beverly Health & Rehabilitation — Spring Hill, DAB No.
1696 (1999), aff'd Beverly Health & Rehabilitation Services, Inc., 223 F. Supp. 2d 73
(D.C. Dist. 2002); Carehouse Convalescent Hospital, DAB No. 1799 (2001); Lake Park
Nursing and Rehabilitation Center, DAB CR1341, n.2 (2005).

IV. Conclusion

For the reasons set forth above, CMS’s motion for summary disposition must be, and it
is, GRANTED. CMS was authorized to terminate Petitioner’s participation as a provider
of services in the Medicare program.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Homemakers A+ Services
(PTAN 2083636890),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-10-926
Decision No. CR2322

Date: February 14, 2011

DECISION

For the reasons set forth below, I grant the Centers for Medicare and Medicaid Services’
(CMS’s) motion for summary judgment. The undisputed evidence establishes that
Homemakers A+ Services (Petitioner) did not notify CMS that it moved to another
location, and CMS was therefore not able to conduct an on-site visit of Petitioner’s
acility. Therefore, I sustain the CMS determination that Petitioner was not operational
and conclude that CMS had the authority to revoke Petitioner’s billing privileges
pursuant to 42 C.F.R. § 424.535(a)(5)(ii).

I. Background

Petitioner is a supplier of durable medical equipment, prosthetics, orthotics, and supplies
(DMEPOS) engaged in the business of furnishing hospital beds and accessories, as well
as motorized wheelchairs and accessories. CMS Ex. 1, at 1; CMS Ex. 7, at 16. The
ollowing facts are not in dispute. On May 11, 2010 at 11:45 a.m. and 3:05 p.m., an
inspector for the National Supplier Clearinghouse (NSC), a CMS contractor, attempted to
conduct a site inspection of Petitioner at its enrolled address, 1546 Joliet Street, Dyer,
Indiana 46311. CMS Ex. 1, at 1, 2, 7-9. The inspector reported that when he arrived at
the office in the morning, and again in the afternoon, Petitioner’s office was closed.

2

CMS Ex. 1, at 7. The inspector had visited Petitioner a few times in the past and knew
Petitioner was leasing space from another company, Abode Flooring and Blinds, which
was also closed during the attempted site inspection. /d. There was a large business sign
for Petitioner about 15 feet from the street, but Petitioner did not have any other business
sign or posted hours. /d. On May 12, 2010, the inspector called Petitioner’s phone
number and reached a recorded message. Jd. On May 13, 2010, the inspector called
Abode Flooring and Blinds, Petitioner’s landlord. A male answered the phone and told
the inspector that Petitioner had moved to another location. /d. During the afternoon of
May 13, 2010, the inspector called Petitioner’s office again. This time, a person
answered the phone and told the inspector that Petitioner moved about six weeks ago to
910 Richard Road, Dyer, Indiana. Jd. The person who answered Petitioner’s phone did
not know if Petitioner had notified NSC that it moved. Jd.

As a result of the failed attempts at a site visit, in a letter dated May 28, 2010, NSC
notified Petitioner that its supplier number would be revoked retroactively to May 11,
2010, the date CMS determined Petitioner’s practice location to not be operational. CMS
Ex. 2, at 1. The notice explained that a site visit was attempted on May 11, 2010, but the
visit was “unsuccessful because the location was vacant with no hours of operation
posted.” Jd. at 1. Because the site visit could not be completed, CMS could not verify
Petitioner’s compliance with supplier standards, and therefore the facility was found “not
operational to furnish Medicare covered items and services” in violation of 42 C.F.R. §
424.535(a)(5)(ii). CMS Ex. 2, at 1-2.

NSC received Petitioner’s undated reconsideration request and acknowledged its receipt
on June 23, 2010. CMS Ex. 4. In the acknowledgment, NSC advised Petitioner that it
could submit additional documentation to support its reconsideration request. Id.
Petitioner responded via facsimile on July 6, 2010, with documentation that it argued was
proof that it attempted to notify CMS within 30 days of its move. CMS Ex. 5.!

Petitioner stated “that the [NSC] representative went to our old office that we had just
moved from and no one was there. We have our hours posted at our new location, and
someone is always here during those hours.” CMS Ex. 3, at 2; P. Ex. 3, at 2. In response
to CMS’s determination that the facility was not operational at the address of record,
Petitioner stated, “I believe this was just a misunderstanding as we were trying to have
our new address switched over from the old one.” CMS Ex. 3, at 2; P. Ex. 3, at 2.

' The documentation that Petitioner submitted included: a handwritten CMS-855S
change of business location form dated May 5, 2010, showing an address change to 910
Richard Road, Suite B, Dyer, Indiana 46311-2027; a copy of a picture of a sign with
Petitioner’s business hours; and a phone bill from April 14, 2010 to May 13, 2010
addressed to Petitioner at the 910 Richard Road address. CMS Ex. 5, at 1-5.
3

In a reconsideration decision dated July 19, 2010, a Medicare Hearing Officer affirmed
CMS’s decision to revoke Petitioner’s Medicare supplier number. CMS Ex. 6, at 3. The
Hearing Officer determined that Petitioner did not comply with supplier standard 8,
which requires a supplier to: permit “CMS, or its agents, to conduct on-site inspections
to ascertain supplier compliance;” be “accessible during reasonable business hours to
beneficiaries and to CMS;” and have “posted hours of operation.” CMS Ex. 6 at 2; 42
C.F.R. § 424.57(c)(8). Additionally, the Hearing Officer referenced Petitioner’s CMS-
855S change of business location form and concluded that CMS did not receive the form
according to the information in the case file. CMS Ex. 6 at 2.

On August 16, 2010, Petitioner filed a hearing request with the Civil Remedies Division
(CRD) of the Departmental Appeals Board (Board) to appeal the reconsideration
decision. P. Ex. 7, at 1-2. In its hearing request, Petitioner stated the following
undisputed facts. On April 9, 2010, Petitioner moved from 1546 Joliet Street, Dyer,
Indiana to a new facility at 910 Richard Road, Suite B, Dyer, Indiana. Petitioner claimed
it was unable to leave a message posted at the old location that detailed its recent move
with directions to its new location. Jd. at 1. On May 4, 2010, CMS’s contractor informed
Petitioner that it had never received the CMS-855S application reflecting the address
change. On May 5, 2010, Petitioner completed and mailed a change of address notice
that was returned for insufficient postage on May 11, 2010. /d. at 1-2. Petitioner then
stated it planned to move back to its original location at 1546 Joliet Street, Dyer, Indiana,
effective August 18, 2010. Jd. at 2. Petitioner decided that “it was best to go back to its
original location ... to maintain the original address submitted to CMS and the State of
Indiana requiring no additional documentation.” P. Br. at 4. Attached to Petitioner’s
hearing request was its completed CMS-855S application with the address change form.
See P. Ex. 7, at 8-55.

In response to Petitioner’s hearing request, on August 26, 2010, Board Member Leslie A.
Sussan issued an Acknowledgment and Pre-Hearing Order setting procedures for this
appeal.’ CMS submitted a motion for summary judgment (CMS Br.), dated September
27, 2010, and seven exhibits (CMS Exs. 1-7). Petitioner submitted a response to CMS’s
Motion (P. Br.), characterized as a motion for summary judgment, dated October 25,
2010, and attached twelve exhibits (P. Exs. 1-12). CMS submitted a reply to Petitioner’s
response (CMS Reply), dated November 5, 2010. This case was transferred to me on
October 25, 2010. Neither party objected to the admission of any exhibit. Pursuant to
the Prehearing Order in this case, Petitioner may not offer new documentary evidence in
this case, absent a showing of good cause for failing to present that evidence previously
to CMS. 42 C.F.R. § 498.56(e). Therefore, I exclude P. Exs. 8-12, as they are new
evidence, and Petitioner did not show good cause by explaining why it did not present
these exhibits earlier to CMS’s contractor. I admit CMS Exs. 1-7 and P. Exs. 1-7.

> Pursuant to 42 C.F.R. § 498.44, a member of the Board may hear appeals taken under
part 498.
II. Applicable Legal Authority

Regulations provide that CMS may revoke a currently enrolled supplier’s Medicare
billing privileges, when “CMS determines, upon on-site review, that the . . . supplier is no
longer operational to furnish Medicare covered items or services ....” 42 C.F.R.

§ 424.535(a)(5). CMS has adopted a list of supplier standards, including operational
requirements that DMEPOS suppliers must meet on a continuing basis. Among these,
the regulation provides that a supplier —

(2) Has not made, or caused to be made, any false statement or
misrepresentation of a material fact on its application for billing
privileges. (The supplier must provide complete and accurate
information in response to questions on its application for billing
privileges. The supplier must report to CMS any changes in
information supplied on the application within 30 days of the
change.);

(8) Permit CMS, or its agents to conduct on-site inspections to
ascertain supplier compliance with the requirements of this section.
The supplier location must be accessible during reasonable business
hours to beneficiaries and to CMS, and must maintain a visible sign
and posted hours of operation.

42 CFR. § 424.57(c).
The term “operational” is defined to mean that a supplier —

has a qualified physical practice location, is open to the public for
the purpose of providing health care related services, is prepared to
submit valid Medicare claims, and is properly staffed, equipped, and
stocked (as applicable, based on the type of facility or organization,
provider or supplier specialty, or the services or items being
rendered), to furnish these items or services.

42 CFR. § 424.502.
When CMS bases a revocation on a non-operational determination by CMS, or its

contractor, the revocation is effective on the date that CMS, or its contractor, determined
that the provider or supplier was no longer operational. 42 C.F.R. § 424.535(g).
III. Issues
The issues before me are whether CMS:
1. Had a legitimate basis to revoke Petitioner’s billing privileges; and

2. Is entitled to summary judgment.

IV. Findings of Fact, Conclusions of Law, and Analysis
My conclusions are in the italicized headings followed by discussion.

a. CMS had a legitimate basis to revoke Petitioner’s billing privileges because
Petitioner was not operational pursuant to the regulations.

CMS contends that it was unable to conduct an on-site survey of Petitioner’s business
since it was no longer operational at the enrolled address. CMS Br. at 1. Pursuant to 42
C.F.R. § 424.57(c)(8), a supplier is required to “permit CMS, or its agents to conduct on-
site inspections to ascertain supplier compliance . . . [t]he supplier location must be
accessible during reasonable business hours to beneficiaries and to CMS, and must
maintain a visible sign and posted hours of operation.” Additionally, CMS argues that
Petitioner did not meet supplier standard 2, which requires the supplier to notify CMS of
any changes in information supplied on the application within 30 days of the change, and
supplier standard 7, which requires the supplier to maintain a physical facility on an
appropriate site. CMS Br. at 3.

Petitioner acknowledges that it moved to a new location on April 9, 2010, and it did not
post notice of the new location at the old location. P. Ex. 7, at 1. The attempted site
visits occurred over a month later on May 11, 2010. CMS Ex. 1, at 7. Petitioner
concedes that CMS did not receive notice that Petitioner changed its business address
because Petitioner’s notification was returned to Petitioner on May 11, 2010, for
insufficient postage. P. Br. at 4; P. Ex. 7, at 1-2. This is consistent with the
determination of the Medicare Hearing Officer that CMS did not receive Petitioner’s
CMS-855S change of business location notification. CMS Ex. 6, at 2. There is no
indication in the record below that, after Petitioner received the returned notification,
Petitioner attempted to re-submit the notification to CMS. With its hearing request dated
August 16, 2010, Petitioner finally submitted its enrollment update with the change of
address information. However, in its brief, Petitioner stated it was relocating back to its
original location. Petitioner explained “it was best to go back to its original location . . .
to maintain the original address submitted to CMS and the State of Indiana requiring no
additional documentation.” P. Br. at 4.

6

Not only did Petitioner’s temporary move make it impossible for CMS to conduct an
on-site visit to verify compliance for more than four months, but this surreptitious
relocation also denied Medicare beneficiaries and the general public access to
Petitioner’s business. It is undisputed that Petitioner did not meet the criteria of
supplier standard 8 and was therefore not operational on the date CMS attempted to
conduct an on-site visit. It is also undisputed that Petitioner did not meet the criteria of
supplier standard 2, which requires a supplier to report any change in information on its
supplier enrollment application within 30 days of the change. CMS has scarce
resources to regulate a vast number of suppliers through unannounced site visits, and
the change of address rules, which Petitioner clearly did not take reasonable care to
follow, serve an important function in this compliance work. Because it has been
established that Petitioner did not meet the requirements of two supplier standards, I
need not consider the argument that CMS was also authorized to revoke Petitioner’s
supplier number based on its noncompliance with supplier standard 7. See
18661CPayday.com, DAB No. 2289, at 13 (2009) (“[F]ailure to comply with even one
supplier standard is a sufficient basis for revoking a supplier’s billing privileges.”).

Petitioner attributes its revocation to having been deliberately misled by its delegated
manager that all needed documentation, including notification to CMS of its address
change, was provided and approved by Medicare. P. Br. at 1. For the purposes of
summary judgment, I accept Petitioner’s assertions as true. Nevertheless, once
Petitioner’s owner was on notice that the change of business location form was returned
or insufficient postage in May 2010, it was not until August 2010, after the
reconsideration hearing, that Petitioner’s owner took action to submit the change of
address form and application along with its hearing request. Petitioner’s owner knew
then that CMS had no record of its whereabouts for an extended period of time, and he
still did not take reasonable steps to ensure proper notification. Therefore, I do not find
Petitioner’s explanation grounds to disturb CMS’s revocation.

b. CMS is entitled to summary judgment.

CMS’s moves for summary judgment asserting that there are no material facts in dispute.
CMS Reply at 3. Petitioner does not argue that summary judgment is inappropriate but
instead argues that the revocation should be reversed based on the actions of its manager.
P. Br. at 1. No genuine issues of material fact in dispute exist in this case, and summary
judgment is appropriate. The Board stated the standard for summary judgment as
follows:
7

Summary judgment is appropriate when the record shows that there is no
genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. . .. The party moving for summary judgment
bears the initial burden of showing that there are no genuine issues of
material fact for trial and that it is entitled to judgment as a matter of

law. ... To defeat an adequately supported summary judgment motion, the
non-moving party may not rely on the denials in its pleadings or briefs, but
must furnish evidence of a dispute concerning a material fact — a fact that, if
proven, would affect the outcome of the case under governing law. . . . In
determining whether there are genuine issues of material fact for trial, the
reviewer must view the evidence in the light most favorable to the non-
moving party, drawing all reasonable inferences in that party’s favor.

Senior Rehab. and Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations omitted).
The role of an administrative law judge (ALJ) in deciding a summary judgment motion
differs from the ALJ’s role in resolving a case after a hearing. The ALJ should not assess
credibility or evaluate the weight of conflicting evidence. Holy Cross Vill. at Notre
Dame, Inc., DAB No. 2291, at 5 (2009).

This case requires an application of the law to the undisputed facts. The issues in this
case turn on the legal interpretation of the regulations, 42 C.F.R. §§ 424.57(c) and
424.535, and other regulatory provisions that govern denial of enrollment and revocation
of billing privileges. As previously discussed, Petitioner does not dispute that CMS was
not able to conduct an on-site visit because it did not properly notify CMS that it had
moved. Neither party asserts that a genuine dispute as to a material fact exists, and the
evidence does not reflect such a dispute. Accordingly, summary judgment is appropriate.

V. Conclusion

After reviewing the evidence in the light most favorable to Petitioner, I conclude that the
regulatory language is plain, and there is no genuine issue of material fact here. I
therefore grant summary judgment to CMS because CMS acted within its regulatory
authority to revoke Petitioner’s billing privileges, pursuant to 42 C.F.R.

§ 424.535(a)(5)(ii).

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Ramon Antonio Pichardo, M.D.,

(Ol

File Number: M-08-40170-9),
Petitioner
Vv.
The Inspector General.
Docket No. C-10-882
Decision No. CR2321

Date: February 10, 2011

DECISION

This matter is before me on the Inspector General's (1.G.'s) Motion for Summary

Disposition of the I.G.'s revise

determination to exclude Petitioner pro se Ramon

Antonio Pichardo, M.D., from participation in Medicare, Medicaid, and all other federal
health care programs for a period of 27 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), requiring the exclusion of any individual or entity convicted of a

criminal offense related to the

livery of an item or service under Medicare or any state

health care program. The predicate for this action is Petitioner’s conviction of

“Conspiracy to Commit Health
demonstrate that the minimum

Care Fraud.” The undisputed facts of this case
five-year exclusion must be imposed, and that the I.G.'s

determination to enhance that period to 27 years, based on the aggravating factors found

in 42 C.F.R. § 1001.102(b)(1),
1.G.'s Motion for Summary Dis;

(2) and (5), is reasonable. For those reasons, I grant the
position.

I. Procedural Background

By letter dated June 30, 2010, the I.G. notified Petitioner pro se Ramon Antonio
Pichardo, M.D., that he was being excluded under section 1128(a)(1) of the Act, from
participating in Medicare, Medicaid, and all federal health care programs for a period of
30 years. The notice informed Petitioner that the mandatory five-year exclusion period
was being enhanced to 30 years due to the presence of four aggravating factors. The LG.
later revised its determination, finding that only three aggravating factors were present
and thus reduced Petitioner’s period of exclusion from 30 to 27 years. On July 30, 2010,
Petitioner filed a request for an Administrative Law Judge (ALJ) hearing pursuant to

42 CFR. § 1005.2.

On August 19, 2010, I scheduled a prehearing conference for September 15, 2010, to
discuss the issues presented and establish a briefing schedule, pursuant to 42 C.F.R.

§ 1005.6. By letter dated August 26, 2010, and received by the Civil Remedies Division
on September 7, 2010, Petitioner, an inmate at a federal correctional institution, waived
participation in the prehearing conference and requested that “this matter be decided on
the review of documents of record.” Accordingly, I issued an Order on September 9,
2010, setting forth directives and information to assist the parties in presenting their
cases, and to convey the information described at 42 C.F.R. § 1005.6(b).

In accordance with my Order, on October 7, 2010, the I.G. filed a Motion for Summary
Disposition and supporting Brief-in-Chief (I.G. Br.), five proposed exhibits (I.G. Exs. 1-
5), and nine attachments consisting of copies of selected United States Code and Code of
Federal Regulations provisions marked A through I (1.G. Attachments A-I). On October
29, 2010, Petitioner filed his Answer Brief in opposition to the I.G.’s Motion and Brief-
in-Chief (P. Br.). At the same time, Petitioner filed eight proposed exhibits (P. Exs. 1-8)
and five attachments consisting of copies of selected portions of the United States Code
and the Federal Rules of Civil Procedure marked A through E (P. Attachments A-E).

The L.G. filed a Reply Brief (I.G. Reply) on November 24, 2010, and Petitioner’s
Response Brief (P. Resp.) was filed December 7, 2010, and received on December 15,
2010. In the absence of objection, I have admitted I.G. Exs. 1-5, I.G. Attachments A-I, P.
Exs. 1-8, and P. Attachments A-E.

[he briefing cycle in this case closed for purposes of 42 C.F.R. § 1005.20(c) with the
receipt of Petitioner’s Response on December 15, 2010.

II. Issues

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

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 I.G.’s position on all issues is correct. Section 1128(a)(1) of the Act mandates
Petitioner’s exclusion, for his predicate conviction 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 27 years is not
unreasonable, because the three aggravating factors relied on by the LG. found in

42 C.F.R. § 1001.102(b)(1), (2), and (5) are fully established in the record, and because
Petitioner has not demonstrated any mitigating factors, nor are any apparent in the record
before me.

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). This mandatory exclusion must be imposed for a minimum of five years.
Section 1128(c)(3)(B) of the Act; 42 U.S.C. § 1320a-7(c)(3)(B). Petitioner does not deny
that the I.G. has a basis upon which to exclude Petitioner.

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 I.G. seeks to enhance the period of
Petitioner’s exclusion to 27 years, and relies on the three aggravating factors set out at
42 C.F.R. § 1001.102(b)(1), (2), and (5). Petitioner does not deny the presence of these
aggravating factors or contest the I.G.’s proof of them.

In cases 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 at 42 C.F.R.

§ 1001.102(c). 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,
Petitioner has not pleaded a defined mitigating factor, and without disregarding the rule
assigning Petitioner the burden of proof of mitigating factors, none appear in the record
before me.
IV. Findings and Conclusions

Based on the undisputed material facts in the record before me, I find and conclude as

follows:

1.

On May 22, 2008, the Federal Grand Jury sitting for the United States District
Court for the Southern District of Florida charged Petitioner with twelve
criminal counts including: “Conspiracy to Defraud the United States, to Cause
the Submissions of False Claims, and to Pay Health Care Kickbacks,”
“Conspiracy to Commit Health Care Fraud,” “Submission of False Claims,”
“Money Laundering Conspiracy,” and “Money Laundering.” LG. Ex. 3.
Count Two of the Indictment, “Conspiracy to Commit Health Care Fraud,”
charged that the purpose of the conspiracy was “to unlawfully enrich”
Petitioner and his co-conspirators by “(a) submitting false and fraudulent
claims to Medicare; (b) offering and paying cash kickbacks and bribes to
Medicare beneficiaries for the purpose of such beneficiaries arranging for the
use of their Medicare beneficiary numbers by the conspirators as the bases of
claims filed for HIV infusion therapy; (c) concealing the submission of false
and fraudulent claims to Medicare, the receipt and transfer of the proceeds
from the fraud, the payments of kickbacks; and (d) diverting proceeds of the
fraud for the personal use and benefit of [Petitioner and his] co-conspirators.”
1G. Ex. 3, at 8-9.

On September 11, 2008, Petitioner, represented by counsel, pleaded guilty to
Count Two of the Indictment, “Conspiracy to Commit Health Care Fraud,” in
violation of 18 U.S.C. § 1349. I.G. Ex. 4; see I.G. Ex. 3, at 1-3, 8-9. Petitioner
admitted to “knowingly and willfully conspiring with others to execute a
scheme and artifice to defraud and to obtain by means of materially false and
fraudulent pretenses, representations, and promises money owed by, and under
the custody and control of a health care benefits program (as defined in Title
18, United States Code, Section 24(b)), in violation of Title 18, United States
Code, Section 1347.” I.G. Ex. 4, at 1.

On November 20, 2008, Petitioner was sentenced to a 48-month term of
imprisonment followed by three years of supervised release, and was required
to pay $4,200,000 in restitution to the United States. I.G. Ex. 5.

On June 30, 2010, the I.G. notified Petitioner that he was being excluded from
participation in Medicare, Medicaid, and all federal health care programs for a
period of 30 years, based on the authority set out in section 1128(a)(1) of the
Act and the aggravating factors set out at 42 C.F.R. § 1001.102(b)(1), (2), (5),
and (9). LLG. Ex. 1.

Petitioner timely perfected this appeal from the I.G.’s action by filing his pro
se hearing request on July 30, 2010.

On September 28, 2010, acting pursuant to 42 C.F.R. § 1001.2002(e), the I.G.
notified Petitioner that, based upon information disclosed in Petitioner’s
hearing request, the I.G. found the aggravating factor at 42 C.F.R.

§ 1001.102(b)(9), inapplicable, and therefore reduced Petitioner’s exclusion
from 30 to 27 years. LG. Ex. 2.

The guilty plea, adjudication of guilt, and sentence based on Petitioner’s
violation of 18 U.S.C. § 1349, as described in Findings 2 and 3 above,
constitute a conviction related to the delivery of an item or service under
Medicare or Medicaid within the meaning of section 1128(a)(1) of the Act.
Berton Siegel, D.O., DAB No. 1467 (1994).

Because of his conviction, Petitioner was subject to, and the I.G. was required
to impose, a period of exclusion from Medicare, Medicaid, and all other
federal health care programs of not less than five years. Sections 1128(a)(1)
and 1128(c)(3)(B) of the Act.

The acts resulting in Petitioner’s conviction as described in Findings 2 and 3
above caused a financial loss to the United States of approximately $6,800,000.
LG. Ex. 4, at 6; 1.G. Ex. 3, at 6.

Because the acts resulting in the conviction, or similar acts, that caused, or
were intended to cause, a financial loss to a Government program or to one or
more entities of $5,000 or more, the aggravating factor set out in 42 C.F.R.

§ 1001.102(b)(1) is present.

The acts of which Petitioner was convicted occurred from about November
2002 through April 2004. I.G. Ex. 3, at 2, 8; P. Br. at 2.

Because Petitioner’s acts resulting in his conviction as described in Findings 2
and 3 above, took place over a period of more than one year, the aggravating

factor set out in 42 C.F.R. § 1001.102(b)(2) is present.

As the result of his conviction as described in Findings 2 and 3 above,
Petitioner was sentenced to incarceration for a term of 48 months. I.G. Ex. 5.

Because Petitioner was sentenced to a term of incarceration, the aggravating
factor set out in 42 C.F.R. § 1001.102(b)(5) is present.

None of the mitigating factors set out in 42 C.F.R. § 1001.102(c) is present.
16. The 1.G.’s exclusion of Petitioner for an additional 22 years, for a total period
of 27 years, is not unreasonable based upon the quality of the circumstances
surrounding the three aggravating factors clearly established in this case and
the absence of any mitigating factors. 1.G. Exs. 3-5; Findings 1-15, above.

17. There are no remaining disputed issues of material fact and summary
disposition is 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

Petitioner asserts that the I.G.’s exclusion is not valid based on its failure to meet certain
allegedly-applicable procedural requirements. Specifically, Petitioner contends that the
1.G. failed to meet the notice requirements in accordance with section 1128A of the Act
and that even if the notice was properly served, that it is invalid based on a six-year
statute of limitations provision established under section 1128A of the Act. Petitioner’s
arguments are predicated on the assumption that the notice requirements and statute of
limitations provisions under section 1128A(c)(1) of the Act apply to his exclusion,
brought under section 1128(a)(1) of the Act. Therefore, I will first address this threshold
issue: whether the service of process and statute of limitations provisions under section
1128A(c)(1) of the Act apply to Petitioner’s exclusion brought under section 1128(a)(1)
of the Act.

As noted, Petitioner’s arguments rest on the assumption that the procedural requirements
found in the Civil Monetary Penalties Law (CMPL), under section 1128A of the Act,
apply to his contested exclusion brought under section 1128(a) of the Act. Petitioner, in
essence, contends that both the notice requirements and statute of limitations provisions
under section 1128A are applicable to his case, that the I.G. did not meet either
requirement, and that the exclusion should therefore be dismissed.'

' Section 1128A provides that the cases initiated under its section are subject to a statute
of limitations and service of process requirements. In pertinent part:

The Secretary may not initiate an action under this section with respect to
any claim, request for payment, or other occurrence described in this
section later than six years after the date the claim was presented, the
request for payment was made, or the occurrence took place. The Secretary
may initiate an action under this section by serving notice of the action in
any manner authorized by Rule 4 of the Federal Rules of Civil Procedure.

Section 1128A(c)(1) of the Act.
Petitioner’s arguments rest entirely on his incorrect assumption that section 1128A(c)(1)
also applies to exclusions imposed under section 1128(a). Although it is true that an
individual may be excluded under section 1128A of the Act, and that the Secretary would
have six years from the underlying act within which to commence an action pursuant to
that section, the I.G. has not brought this exclusion under section 1128A of the Act.
Instead, the I.G. imposed the mandatory exclusion at issue pursuant to section 1128(a)(1)
of the Act because of Petitioner's conviction of a criminal offense related to the delivery
of an item or service under Medicare, and in which no statute of limitations applies. In
other words, part 1001 of 42 C.F.R., which contains the regulatory provisions
promulgated pursuant to section 1128(a) of the Act, and that section itself, set no
deadlines for the I.G. to act. Randall Dean Hopp, DAB No. 2166, at 4 (2008); Kevin
Bowers, DAB No. 2143 (2008). On the other hand, part 1003 of 42 C.F.R., promulgated
pursuant to section 1128A of the Act, contains a six-year statute of limitations at 42
C.F.R. § 1003.132.

It is well settled that the CMPL’s six-year statute of limitations and notice requirements
provided in section 1128A(c)(1) do not apply to exclusions imposed under section
1128(a)(1) of the Act, such as the present case.” The I.G. correctly pointed to prior ALJ
decisions addressing the same argument:

[while it is true that an individual or entity may be excluded under the
CMPL as a result of the submission of false or fraudulent claims for
reimbursement, pursuant to section 1128A of the Act, the exclusion at issue
in this case is predicated upon Petitioner's criminal conviction [under
section 1128(a)(1) of the Act]; therefore, section 1128A of the Act, and the
referenced statute of limitations, do not apply.

Jorge Miguel Perez, DAB CR951, at 4 (2002), citing Arlene Elizabeth Hunter, DAB
CRS505, at 6 (1997); see also Kathleen Ann Kahler, DAB CR498 (1997).

Likewise, Petitioner’s arguments regarding service of process are entirely and obviously
inapplicable to the present case. Petitioner asserts that section 1128A(c)(1) invokes FED.
R. Clv. P. 4, and so requires that the I.G. provide personal service of the exclusion notice,
or include a waiver of personal service form with the notice if mailed. P. Br. at 2-3.
However, as with Petitioner’s statute of limitations argument, this notice provision is also

> The applicable notice requirements for exclusions based on convictions under section
1128(a)(1) of the Act, are found in section 1128(c) of the Act, as specified in 42 C.F.R.
§§ 1001.2001(a) and 1001.2002(c), and do not bear the same requirements as those under
section 1128A. I note that the L.G.’s April 1, 2010 letter, submitted with Petitioner’s
hearing request, meets the “notice of intent to exclude” requirements, and the I.G.’s

June 30, 2010 letter, admitted as I.G. Ex. 1, meets the requirements of the notice of
exclusion. See 42 C.F.R. §§ 1001.2001(a) and 1001.2002(c).
not applicable to the present case. As discussed, the I.G. did not exclude Petitioner under
section 1128A of the Act and therefore the related procedural requirements are not at play
in this case predicated upon Petitioner’s criminal conviction under section 1128(a)(1).

The two 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); see Russell Mark Posner, DAB No. 2033, at 5-6 (2006).
Petitioner has chosen not to contest the existence of these two essential elements, and
they are objectively established by I.G. Exs. 3, 4, and 5.

The first essential element, the fact of Petitioner’s conviction, is conclusively established
by the records in evidence, which include the Indictment in the United States District
Court for the Southern District of Florida (I.G. Ex. 3); Petitioner’s plea agreement (1.G.
Ex. 4); and the judgment in which Petitioner was sentenced (I.G. Ex. 5). The court’s
acceptance of Petitioner’s guilty plea to Count Two, after which the court found him
guilty and entered judgment of conviction, satisfies the definition of “conviction” set out
at sections 1128(i)(1)-(3) of the Act. LG. Exs. 3-5.

It is also clear that Petitioner’s conviction is related to the delivery of an item or service
under Medicare. The charge in Count Two of the Indictment, “Conspiracy to Commit
Health Care Fraud,” to which Petitioner pleaded guilty specifically charged that the
purpose of the conspiracy was “to unlawfully enrich” Petitioner and his co-conspirators
by “(a) submitting false and fraudulent claims to Medicare; (b) offering and paying cash
ickbacks and bribes to Medicare beneficiaries for the purpose of such beneficiaries
arranging for the use of their Medicare beneficiary numbers by the conspirators as the
bases of claims filed for HIV infusion therapy; (c) concealing the submission of false and
raudulent claims to Medicare, the receipt and transfer of the proceeds from the fraud, the
payments of kickbacks; and (d) diverting proceeds of the fraud for the personal use and
benefit of [Petitioner and his] co-conspirators.” I.G. Ex. 3, at 8-9.

The general allegations surrounding the conspiracy set out in the Indictment — and
specifically incorporated in Count Two — relate that Petitioner was a medical doctor
who purported to order and provide HIV infusion services to Medicare beneficiaries at
CNC Medical. CNC Medical was a medical clinic that purported to specialize in treating
patients with HIV by providing infusion therapy. From in or around November 2002
through in or around April 2004, approximately $6.8 million in false claims were
submitted to the Medicare program for HIV infusion services allegedly rendered at CNC
Medical. I.G. Ex. 3, at 3-4.

The submission of false claims to the Medicare and Medicaid programs has consistently
been 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); Lorna Fay Gardner, DAB CR648 (2000), aff’d, DAB No. 1733 (2000).
Moreover, there can be little question that conspiring to submit false claims for infusion
therapy services to Medicare beneficiaries is related to the delivery of a health care item
or service. Salvacion Lee, M.D., DAB CR920 (2002), aff'd, DAB No. 1850 (2002). I
further note that conviction for a conspiracy to defraud Medicare has been found related
to the delivery of items or services under Medicare and I have found it so related here.
Salvacion Lee, M.D., DAB No. 1850; Douglas Schram, R.Ph., DAB No. 1372 (1992);
Victor Aponte-Aponte, M.D., DAB CR2165 (2010). I find the factual underpinnings of
the offense to which Petitioner pleaded guilty conclusively demonstrate the required
nexus and common-sense connection between Petitioner’s criminal act and the Medicare
program. Berton Siegel, D.O., DAB No. 1467; Victor Aponte-Aponte, M.D., DAB
CR2165.

Because the I.G. has established a basis for Petitioner’s exclusion pursuant to section
1128(a)(1), his exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of
the Act. 42 U.S.C. § 1320a-7(c)(3)(B). That period is reasonable as a matter of law.
Mark K. Mileski, DAB No. 1945 (2004); Salvacion Lee, M.D., DAB No. 1850; Lorna
Fay Gardner, DAB No. 1733 (2000); David A. Barrett, DAB No. 1461 (1994).

The I.G. may determine to enhance the minimum five-year exclusion if certain
aggravating factors are present. 42 C.F.R. § 1001.102(b). The LG. relies here on the
three aggravating factors set out at 42 C.F.R. § 1001.102(b)(1), (2), and (5) in seeking to
enhance the period of Petitioner’s exclusion to 27 years. If the I.G. finds that any
aggravating factor justifies an enhanced exclusion, specific mitigating factors described
at 42 C.F.R. § 1001.102(c) may also be considered as a basis for reducing the period, to
no less than the five-year minimum. Petitioner does not challenge the existence of these
aggravating factors and proposes no mitigating factors. These regulations, however, do
not limit the additional period of exclusion that the I.G. may impose based upon the
presence of aggravating factors nor do they specify how much of an extension is
warranted by the existence of an aggravating factor. Kenneth Rizzo, DAB CR1435, at 7
(2006). Rather, “the circumstances of a particular case” drive the weight that a decision
maker can give the aggravating and mitigating factors. 57 Fed. Reg. 3298, 3314 (January
29, 1992). For example, the evidence supporting only one aggravating factor may be so
significant that it could outweigh multiple mitigating factors. Id. at 3314-3315.
Furthermore, “[t]he weight accorded to each mitigating and aggravating factor cannot be
established according to a rigid formula, but must be determined in the context of the
particular case at issue.” Jd. at 3315.

The first aggravating factor on which the I.G. relies is present when “[t]he acts resulting
in the conviction, or similar acts . . . caused . . . a financial loss to a Government program
10

... of $5,000 or more.” 42 C.F.R. § 1001.102(b)(1). In the Plea Agreement, Petitioner
concedes that his “participation in the conspiracy resulted in a loss to the United States of
more than $2,500,000 and less than $7,500,000.” LG. Ex. 4, at 6. As the LG. points out,
even “at a minimum, based on Petitioner’s admission that he caused more than $2.5
million in financial losses to the program, his conduct resulted in a loss in excess of 500
times the $5,000 regulatory threshold.” I.G. Br. at 9. I do not find it unreasonable that
the amount of loss supports the I.G.’s decision to impose a “significant addition to the
minimum period of exclusion.” Id.

The court records also show that Petitioner was required to pay $4,200,000 in restitution
to the United States. I.G. Ex. 5, at 5-6. The Departmental Appeals Board (Board) has
consistently characterized restitution in amounts substantially greater than the regulatory
standard as an “exceptional aggravating factor” entitled to significant weight. Jeremy
Robinson, DAB No. 1905 (2004); Donald A. Burstein, Ph.D., DAB No. 1865 (2003).
The I.G. has established this first aggravating factor, and Petitioner does not contest that
the factor is present.

The second aggravating factor asserted by the I.G. is present if “[t]he acts that resulted in
the conviction, or similar acts, were committed over a period of one year or more.”

42 C.F.R. § 1001.102(b)(2). Here, the language of the charge to which Petitioner pleaded
guilty demonstrates the existence of this factor. The Indictment describes the period
during which Petitioner conducted the criminal acts as occurring in or around November
2002 and continuing until approximately April 2004. 1G. Ex. 3, at 2. The acts that
resulted in Petitioner’s conviction took place over a period greater than the one-year
regulatory standard. The LG. has established this second aggravating factor, and
Petitioner does not deny its presence.

The third aggravating factor asserted by the LG. is present when the “sentence imposed
by the court included incarceration.” 42 C.F.R. § 1001.102(b)(5). In this case, Petitioner
was sentenced to a 48-month term of imprisonment. I.G. Ex. 5, at 2. The LG. has
established this third aggravating factor, and Petitioner does not deny its presence.

As noted above, evidence relating to aggravating factors may be countered by evidence
relating to any of the mitigating factors set forth at 42 C.F.R. § 1001.102(c)(1)-(3). It is
well-settled that Petitioner bears the burden of going forward with the evidence, and the
burden of persuasion, to establish a mitigating factor. See Stacey R. Gale, DAB No. 1941
(2004); Arthur C. Haspel, D.P.M., DAB No. 1929 (2004); see also Dr. Darren James,
D.P.M., DAB No. 1828 (2002). In this case, Petitioner has not attempted to prove the
presence of any of the defined mitigating factors, and without disregarding the rule that
assigns Petitioner the burden of persuasion, my review of the record has not suggested
that any of those factors are present.
11

The I.G.'s discretion in weighing the importance of aggravating and mitigating factors in
exclusion cases commands great deference when reviewed by ALJs. Paul D.
Goldenheim, M.D., et al., DAB No. 2268 (2009); 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 source of this doctrine is the belief of the regulations’
authors that the I.G. is invested with “vast experience in implementing exclusions... .”
57 Fed. Reg. 3298-3321. This rule evolved in such Board decisions as Barry D.
Garfinkel, M.D., DAB No. 1572 (1996); Frank A. DeLia, D.O., DAB No. 1620 (1997),
and Gerald A. Snider, M.D., DAB No. 1637 (1997). With the Board's decisions in Joann
Fletcher Cash, DAB No. 1725 (2000); Stacy Ann Battle, D.D.S., et al., DAB No. 1843,
Keith Michael Everman, D.C., DAB No. 1880, and Jeremy Robinson, DAB No. 1905, the
tule took its present form.

Stated in its present form, the rule forbids that ALJs substitute their own views of what
period of exclusion might appear “best” in any given case for the view of the I.G. on the
same evidence. In general, the Board has insisted that ALJs may reduce an exclusionary
period only when they discover some meaningful evidentiary failing in the aggravating
factors upon which the LG. relied, or when they discover evidence reliably establishing a
mitigating factor not considered by the LG. in setting the enhanced period. Jeremy
Robinson, DAB No. 1905. Neither circumstance is present in this case.

Accordingly, the only question now before me is whether the length of the period of
exclusion is within a reasonable range. In the instant case, the proposed 27-year period is
commensurate with the range established as reasonable in such cases as Emem Dominic
Ukpong, DAB No. 2220 (2008); Jeremy Robinson, DAB No. 1905; Thomas D. Harris,
DAB No. 1881 (2003); Frances Unoka Nwoshuocha, DAB CR2057 (2010); Francisca
Mbanaja, a/k/a Francisca M. Simien, DAB CR2230 (2010); Paul C. Osuji, DAB
CR2146 (2010); Christian Okey Onwuegbusi, DAB CR2013 (2009); Russell J. Ellicott,
D.P.M., DAB CR1552 (2007); Lawrence J. White, DAB CR1584 (2007); Becalo Utuk,
DAB CR1547 (2006); Stanley Junious Benn, DAB CR1501 (2006); and Arkady
Rozenberg, DAB CR987 (2002).

I rely on those cases as points of reference because they were, like this one, based on
convictions for crimes of financial dishonesty and, like this one, contained evidence of
the aggravating factors set out at 42 C.F.R. § 1001.102(b)(1), (2), and (5). The loss
attributed to Petitioner's crime is so far in excess of the minimum showing required as to
illustrate the exceptional scale of his untrustworthiness, the temporal span of his criminal
activity is sufficient for him to have demonstrated persistent and enduring
untrustworthiness, and his four-year sentence illustrates the sentencing court’s view of
the severity of punishment earned by that untrustworthiness. I have no difficulty in
concluding that the length of the period of exclusion is within a reasonable range, and it
is therefore not unreasonable.
12

I note once more that Petitioner appears here pro se. Because of that fact I have taken
additional care in reading his submissions and other pleadings. In doing so, I have been
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 Mathews,
DAB No. 1574 (1996); Edward J. Petrus, Jr., M.D., et al, DAB No. 1264 (1991). [have
searched all of Petitioner’s submissions for any arguments or contentions that might raise
a valid, relevant defense to the proposed exclusion. That search has been unproductive. I
have found nothing that could be so construed.

Resolution of a case by summary disposition is appropriate when there are no disputed
issues of material fact and when the undisputed facts, clear and not subject to conflicting
interpretation, demonstrate that one party is entitled to judgment as a matter of law.
Michael J. Rosen, M.D., DAB No. 2096; Thelma Walley, DAB No. 1367. Summary
disposition is authorized by the terms of 42 C.F.R. § 1005.4(b)(12). This forum looks to
FED. R. CIv. P. 56 for guidance in applying that regulation. Robert C. Greenwood, DAB
No. 1423 (1993); Thelma Walley, DAB No. 1367. The material facts in this case are
undisputed, clear, and unambiguous, and support summary disposition as a matter of law.

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, Ram6n Antonio Pichardo,
M.D., from participation in Medicare, Medicaid, and all other federal health care
programs for a period of 27 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