Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Ukeme Etuk, a/k/a Kim Etuk, ) Date: February 28, 2007
)
Petitioner, )
)
-V.- ) Docket No. C-07-03
) Decision No. CR1568
The Inspector General. )
)
DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Ukeme
Etuk, a/k/a Kim Etuk, from participating in Medicare and other federally funded health
care programs for a period of 11 years.

I. Background

On July 31, 2006, the I.G. notified Petitioner that she was being excluded from
participating in Medicare and other federally funded health care programs for a period of
11 years. The I.G. advised Petitioner that the exclusion was being imposed pursuant to
the requirements of section 1128(a)(1) of the Social Security Act (Act) as a consequence
of Petitioner’s conviction of a criminal offense related to the delivery of an item or
service under Medicare or a State health care program.

Petitioner requested a hearing and the case was assigned to me for a hearing and a
decision. I held a pre-hearing conference at which I established a schedule for the parties
to submit proposed exhibits and briefs addressing the issues in the case. At that
conference I advised the parties that either of them could request that I convene an in-
person hearing. I told them that I would consider doing so if a party offered to present
testimony that was relevant and did not duplicate the contents of a document in evidence.
2

The I.G. submitted a brief and three proposed exhibits consisting of I.G. Exhibit (Ex.) 1 -
I.G. Ex. 3. Petitioner submitted a brief and no proposed exhibits. Petitioner did not
object to my receiving any of the I.G.’s proposed exhibits into evidence. Consequently, I
receive into evidence I.G. Ex. 1 - I.G. Ex. 3.

In her brief Petitioner contends that an in-person hearing is necessary to decide this case.
Petitioner’s brief at 5 - 6. However, Petitioner offered no description of the evidence that
she wished to present in person. Nor did Petitioner explain how any evidence she might
present would relate to either the basis for an exclusion or to the regulatory factors that
govern the length of exclusions. I find no basis to schedule an in-person hearing in light
of Petitioner’s failure to present me with an offer as to what relevant evidence she would
present if I were to schedule such a hearing.

Il. Issues, findings of fact and conclusions of law
A. Issues
The issues in this case are whether:
1. The L.G. is required to exclude Petitioner as a consequence of her
conviction of a criminal offense that is described at section 1128(a)(1) of

the Act; and

2. The I.G.’s determination to exclude Petitioner for a period of 11 years is
reasonable.

B. Findings of fact and conclusions of law

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

I. The LG. is required to exclude Petitioner because she was convicted of
a criminal offense described at section 1128(a)(1) of the Act.

Section 1128(a)(1) of the Act mandates the exclusion of any individual who is convicted
of a criminal offense relating to the delivery of an item or service under Medicare or a
State health care program. I find that Petitioner was convicted of such an offense and,
consequently, the I.G. is required to exclude her.
3

These are the facts. On June 13, 2005, a criminal information was issued against
Petitioner in the United States District Court for the Northern District of Georgia, Atlanta
Division. I.G. Ex. 2. The information charged that, over a period that began in or about
August 2001, and which continued through August 2002, Petitioner knowingly and
willfully paid remuneration to another individual in order to induce that individual to
refer individuals for furnishing and arranging for the furnishing of services for which
payment may be made in whole or in part under a federal health care program. Jd. The
information charged also that Petitioner, along with a co-defendant, unlawfully paid
remuneration totaling $29,000 in order to induce referrals, thereby generating gross
proceeds of more than $300,000 and net proceeds of more than $200,000. Jd.

On November 30, 2005, Petitioner pled guilty to the charge. I.G. Ex. 3, at 1. She was
sentenced to 24 months’ incarceration and to pay restitution to the Centers for Medicare
& Medicaid Services (CMS) of $275,107.89. I.G. Ex. 3, at 6.

Petitioner does not dispute that she was convicted of a criminal offense. Nor has she
asserted that the target of her crime was some entity other than the Medicare program.
Moreover, although the criminal information does not allege specifically that Petitioner
directed her crime against the Medicare program, it is reasonable to infer that Medicare
was the target and victim of her crime because it is CMS that administers Medicare and to
which Petitioner was sentenced to pay restitution. '

Petitioner makes two arguments to contend that the I.G. has no authority to exclude her
pursuant to section 1128(a)(1) of the Act. First, she contends that, in order to be subject
to the provisions of section 1128(a)(1), an individual who is convicted of a covered crime
must be a physician or other health care practitioner. Petitioner asserts that there is no
evidence of record that Petitioner is either a physician or a health care practitioner and
asserts, consequently, that the I.G. has failed to prove a basis for excluding her.

' Moreover, if the “federal health care program” that is referred to in the criminal
information is some federally funded health care program administered by CMS other
than Medicare the I.G. would be mandated to exclude Petitioner pursuant to the
requirements of section 1128(a)(3) of the Act, which mandates exclusion of any
individual who is convicted of, among other things, any criminal offense committed in
connection with the delivery of a health care item or service by a federally funded health
care program other than Medicare. There is no practical difference between an exclusion
that is imposed pursuant to section 1128(a)(1) and one that is imposed pursuant to section
1128(a)(3).
4

Second, Petitioner argues that the crime of which she was convicted is in the nature of a
bribe or kickback that is addressed by section 1128B(b)(2) of the Act. She argues that
section 1128(b)(7) of the Act governs exclusions for those who are convicted of such
offenses. Exclusions imposed pursuant to section 1128(b)(7) are permissive and not
mandatory and thus, according to Petitioner, she should be excluded — if at all — pursuant
to the permissive exclusion standard of section 1128(b)(7).

I am not persuaded by these arguments. First, there is no language in section 1128(a)(1)
which states or suggests that an individual must be a physician or a health care
practitioner in order to be subject to its provisions. The section states that “any
individual” who is convicted of a program-related offense must be excluded. Petitioner
has pointed to nothing to show that Congress intended that this term be given anything
other than its common and ordinary meaning.

Second, although it is possible that Petitioner’s crime might also justify exclusion
pursuant to section 1128(b)(7) of the Act, that does not vitiate the I.G.’s obligation to
exclude her pursuant to section 1128(a)(1). In this case Petitioner’s crimes met all of the
elements of an (a)(1) offense. It was a crime directed against the Medicare program
relating to Medicare-reimbursed items or services.’ The fact that the crime might also be
an offense that is covered by section 1128(b)(7) is not a basis to say that it falls outside
the parameters of section 1128(a)(1).

In enacting section 1128 of the Act, Congress did not indicate that it intended that
individuals who were convicted of offenses that were covered by both mandatory and
permissive exclusion language should be excluded pursuant to the more flexible and,
arguably, more lenient permissive exclusion provisions. There are numerous offenses
described in the Act which arguably could be viewed as falling within the mandatory and
permissive exclusion sections. In such cases mandatory exclusions are always imposed.

For example, a conviction of a misdemeanor relating to fraud, theft, embezzlement,
breach of fiduciary responsibility or other financial misconduct in connection with the
delivery of a health care item or service is a conviction for which the I.G. may impose an
exclusion pursuant to section 1128(b)(1)(A)(i) of the Act. But, such a conviction would
mandate an exclusion under section 1128(a)(1) if the crime related to a Medicare or State
Medicaid item or service. The fact that the conviction meets both statutory definitions
has never been held to limit the I.G. to imposing a permissive exclusion.

> And, if Petitioner’s crime was not directed specifically against Medicare, then it
certainly would be directed against a program that is covered by section 1128(a)(3).
5

2. The 11-year exclusion is reasonable.

I find that the 11-year exclusion imposed by the I.G. against Petitioner is reasonable given
the degree of untrustworthiness manifested by her.

Section 1128 is a remedial statute. Its purpose is not to punish offenders for their crimes
but to protect federally funded health care programs and their beneficiaries and recipients
from untrustworthy individuals.

The Act does not prescribe terms of exclusion aside from requiring that exclusions
imposed pursuant to the mandatory requirements of section 1128(a) be for a minimum of
five years. Act, section 1128(c)(3)(B). Regulations published by the Secretary of the
Department of Health and Human Services establish criteria which may be used to
determine the length of an exclusion. For all exclusions imposed pursuant to section
1128(a) of the Act, including those imposed pursuant to subsections (a)(1) and (a)(3), the
relevant criteria are contained at 42 C.F.R. § 1001.102(b) and (c). These are described in
the regulation as consisting of potentially aggravating and mitigating factors. Evidence
that relates to an aggravating factor or factors may be the basis for lengthening an
exclusion beyond the five-year minimum period. Evidence that relates to a mitigating
factor or factors may be the basis for reducing the length of an exclusion, but never for
less than the five-year minimum. 42 C.F.R. § 1001.102(b) and (c).

The aggravating and mitigating factors set forth at 42 C.F.R. § 1001.102(b) and (c)
function as rules of evidence for determining the length of an exclusion. Only evidence
that relates to an aggravating or mitigating factor may be considered in deciding the
reasonable length of an exclusion. Like rules of evidence, the regulation does not assign
weight to any evidence that relates to an aggravating factor. The weight that is assigned
to such evidence depends on what that evidence says about the excluded individual’s
trustworthiness to provide care.

Here, the I.G. alleged that the evidence relates to two aggravating factors. First,
Petitioner’s crime caused a financial loss of $5,000 or more to be sustained by a
government program. 42 C.F.R. § 1001.102(b)(1). In fact, the financial impact of her
crime was far greater than $5,000. The information to which she pled guilty alleges that
Petitioner and her co-defendant obtained in excess of $300,000 through unlawfully
inducing referrals. Petitioner was sentenced to pay restitution of $275,107.89.
6

Second, Petitioner was sentenced to a term of incarceration. 42 C.F.R. § 1001.102(b)(5).
In this case, Petitioner was sentenced to a term of 24 months’ imprisonment.

In fact, and although the I.G. did not allege the presence of a third aggravating factor, the
evidence offered by the I.G. plainly relates to a third factor. That is, that Petitioner’s
crime transpired over a period of one year or more. 42 C.F.R. § 1001.102(b)(2). The
criminal information to which Petitioner pled guilty alleges that her crime began in or
about August 2001, and continued “through” August 2002, thus alleging a period of at
least one full year during which Petitioner committed her crime. IG. Ex. 1.

In any event, the evidence offered by the I.G. relating to the financial impact of
Petitioner’s crime and her sentence is sufficient to justify the 11-year exclusion that the
1.G. determined to impose. What is unchallenged in this case is that Petitioner unlawfully
obtained a very large sum of money as a direct consequence of her unlawful activity.
That is sufficient for me to conclude that she acted without regard for the welfare of
program beneficiaries and recipients and that she was aggressive in obtaining program
funds to which she was not entitled. That is enough to conclude that Petitioner is highly
untrustworthy. Such untrustworthiness merits the relatively lengthy exclusion that the
1.G. determined to impose against Petitioner.

/s/

Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Hoang T. Tran, D.D.S., Inc., ) Date: February 22, 2007

)
Petitioner, )
)

-Vv.- ) Docket No. C-06-635

) Decision No. CR1567
The Inspector General. )
)

DECISION

Hoang T. Tran, D.D.S., Inc. (Petitioner) appeals the decision of the Inspector General
(I.G.), made pursuant to section 1128(b)(8) of the Social Security Act (Act), to exclude it
from participation in Medicare, Medicaid, and all federal health care programs for a
period of five years. For the reasons discussed below, I find that the I.G. is authorized to
exclude Petitioner, and I find that the regulations mandate the five-year exclusion.

L. Background

No facts are in dispute here. Dr. Hoang T. Tran, the individual (Dr. Tran), was a licensed
dentist and the owner of her dental practice, Hoang T. Tran, D.D.S., Inc. (Petitioner).

1.G. Ex. 4, at 2. On February 16, 2006, in California Superior Court, Dr. Tran entered a
plea of nolo contendere to charges of filing false Medicaid claims, insurance fraud, and
grand theft of $9,854.00 from the State of California. I.G. Exs. 5, 6.

In a notice dated May 31, 2006, the I.G. advised Dr. Tran that she, individually, would be
excluded from program participation for five years. The letter explained that the
exclusion action was taken pursuant to section 1128(a)(1) of the Act because she had
been convicted of a criminal offense related to the delivery of an item or service under the
Medicare or a state health care program. I.G. Ex. 7. Petitioner did not request review, so
the I.G.’s determination is final.
2

Shortly thereafter, in a notice dated June 30, 2006, the I.G. advised Petitioner that it (the
dental practice) was also excluded from program participation for a period of five years,
pursuant to section 1128(b)(8) of the Act. I.G. Ex. 1. Petitioner appealed and the matter
has been assigned to me for resolution.

Pursuant to my scheduling order, the I.G. has submitted his brief (1.G. Br.) with eight
exhibits attached, I.G. Exhibits (I.G. Exs.) 1 - 8.! Petitioner filed its opposition brief (P.
Br.) with one group exhibit attached, Petitioner Exhibit (P. Ex.) 1. The I.G. submitted a
reply brief (I.G. Reply). There being no objections, I.G. Exs. 1 - 8 and P. Ex. 1 are
admitted into evidence.

IL. Issues

The issue before me is whether the I.G. had a basis upon which to exclude Petitioner from
participation in the Medicare, Medicaid, and all federal health care programs. If so, the
five-year exclusion is mandatory.

III. Discussion

A. Because Dr. Tran, the individual, was convicted of a
crime related to the delivery of an item or service under the
Medicare or a state health care program, and has been
excluded from program participation for the statutorily-
prescribed period of five years under section 1128(a)(1), the
IG. is authorized to exclude her medical practice for the
same period.’

Section 1128(b)(8) of the Act authorizes the Secretary to exclude from program
participation any entity that is owned, controlled, or managed by a person who has been
convicted of an offense described in section 1128(a) or who has been excluded from

' The IG. characterizes its brief as in support of a “motion for summary
affirmance.” In fact, the parties have waived appearance at an oral hearing and agreed to
submit only documentary evidence and written argument. 42 C.F.R. § 1005.6(b)(5);
Order (Oct. 12, 2006). The distinction may be significant because in summary
affirmance, all disputed facts and inferences must be drawn in favor of the nonmoving
party. Where the parties agree to resolve the case on the written record, the judge is free
to weigh the evidence and draw whatever inferences are most reasonable.

? I make this one finding of fact/conclusion of law.
3

program participation. Except under circumstances not applicable here,’ the regulations
provide that the exclusion “will be for the same period as that of the individual whose
relationship with the entity is the basis for this exclusion.” 42 C.F.R. § 1001.1001(b)(1).

Petitioner does not dispute that Dr. Tran, the individual, was convicted of a program-
related crime, and excluded for five years pursuant to section 1128(a)(1). Petitioner also
concedes that Dr. Tran is the owner of Petitioner, Hoang T. Tran, D.D.S., Inc. The LG. is
therefore authorized to exclude it from program participation, and its period of exclusion
must be for the same period as Dr. Tran’s.

Without distinguishing between Dr. Tran, the individual, and Dr. Tran, Inc., the dental
practice, Petitioner argues that equitable principles justify reducing the period of Dr.
Tran’s exclusion. I am bound by the regulations, however, and have no authority to
consider equity in reaching my decision. Salvacion Lee, M.D., DAB No. 1850 (2002).

IV. Conclusion

For these reasons, I conclude that the I.G. properly excluded Petitioner from participation
in the Medicare, Medicaid, and other federal health care programs, and I sustain the five-
year exclusion.

/s/

Carolyn Cozad Hughes
Administrative Law Judge

> See 42 C.F.R. § 1001.3002(c).


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Shirley A. Jones, ) Date: February 8, 2007

)
Petitioner, )
)

“vee ) Docket No. C-06-618

) Decision No. CR1564
The Inspector General. )
)

DECISION

This matter is before me on the Inspector General’s (1.G.’s) Motion to Dismiss, as
untimely filed, the Request for Hearing filed on August 8, 2006 by Petitioner pro se
Shirley A. Jones. The I.G.’s Motion is based on the terms of 42 C.F.R. §§ 1001.2007(b)
and 1005.2(c). As I explain below, I find that the Request for Hearing was not timely
filed, and for that reason I grant the I.G.’s Motion to Dismiss.

I. Procedural Background

On July 31, 2002, the I.G. wrote to Petitioner at the place of her incarceration, the Federal
Medical Center at Fort Worth, Texas. The letter notified Petitioner of the I.G.’s
determination to exclude her from Medicare, Medicaid, and all federal health care
programs for a period of 40 years. The 1.G.’s letter relied on the authority of section
1128(a)(1) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(a), and asserted that the
predicate for the I.G.’s action was Petitioner’s conviction in the United States District
Court for the District of New Mexico of a criminal offense related to the delivery of an
item or service under the Medicaid program.
2

Petitioner requested a hearing in an undated letter postmarked August 8, 2006, and
received by the Civil Remedies Division on August 15, 2006. The envelope’s return
address and inmate identification number provided by Petitioner in her Request for
Hearing are the same as the address and inmate identification number to which the I.G.’s
notice letter of July 31, 2002 was sent.

convened a prehearing conference with the parties by telephone on September 14, 2006,
pursuant to 42 C.F.R. § 1005.6. The details of that conference and a summary of the
matters discussed appear in my Order of September 18, 2006. Since the span of time
between the I.G.’s notice letter and Petitioner’s hearing request suggested the issue of its
timeliness within the terms of 42 C.F.R. § 1005.2(c), I established a schedule for the
.G.’s submission of a Motion to Dismiss, and for briefing on that Motion. That cycle of
motion practice and briefing is now closed.

[he closing of this record has not been without complication. The Order of December

1, 2006 established an amended schedule for the filing of the parties’ final briefs. By
the terms of that schedule and Order, Petitioner was obliged to file her final brief on or
before January 5, 2007, or to file by that date a notice of her intent not to file a final brief.
Petitioner filed neither brief nor notice. Receiving nothing from Petitioner, on January

8, 2007, I ordered the record in this case closed effective January 10, 2007.

The January 18, 2007 Order prompted counsel for the I.G. to advise the Civil Remedies
Division that she had received three documents from Petitioner of which the Civil
emedies Division was not aware. Those documents are now part of the evidentiary
record in this case, marked and admitted as ALJ Exs. 1-3. I emphasize that Petitioner
filed none of these three documents with the Civil Remedies Division. Details of the
nature and contents of each all appear in my Order of January 25, 2007, which also held
this record open through February 2, 2007 for the reasons therein recited. The record in
this case closed on February 2, 2007, under the circumstances noted in my Order of
February 2, 2007.!

' My Order of January 25, 2007 stated that the Civil Remedies Division “will
attempt to locate Petitioner, and will maintain records of its attempts.” In her Request for
Hearing and brief, Petitioner had provided the name and address of a Celestine Davis in
Zachary, Louisiana, and indicated that she could receive mail at this alternate address. On
January 22, 2007, my office therefore attempted to contact Ms. Davis to inquire as to the
whereabouts of Petitioner. My office called Directory Assistance for Zachary, Louisiana,
and was told that two listings existed for “Celestine Davis.” The first listing was
nonpublished, and the second listing was a telephone number associated with an address
3

The record on which I decide this case is made up of seven exhibits. Petitioner raised no
objection to the three exhibits proffered by the I.G., and I have admitted them as I.G. Exs.
1-3. Petitioner attached her own affidavit to her brief (P. Resp.): I have marked it P. Ex.
1 and have admitted.it with that designation. My Order of January 25, 2007 identified
and admitted ex mero motu ALJ Exs. 1-3.

IL. Issue

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

§ 1005.2(e)(1) to dismiss it.

This issue must be resolved against Petitioner. Her Request for Hearing was filed almost
our years later than the deadline for doing so established by regulation. She has failed
ere to make a reasonable showing that she did not receive the I.G.’s July 31, 2002 notice
etter at the place of her incarceration in due course. In particular, she has failed to make
a reasonable showing that her illness while incarcerated had the effect of functionally
negating her receipt of the notice letter. In the absence of such a showing, her Request
or Hearing must be dismissed.

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 (Medicare) or any State health care program. This
mandatory exclusion must be imposed for a minimum of five years whenever one of the
four classes of predicate convictions set out in section 1128(a) of the Act is established.
Section 1128(c)(3)(B) of the Act; 42 U.S.C. § 1128(c)(3)(B).

in Baton Rouge, Louisiana. When my office called the number, there was an automated
message stating that it was temporarily disconnected. Additionally, my office looked at
online telephone directories and obtained a telephone number for a “Celestine Davis” in
Baton Rouge, Louisiana. Calling this number (a different one from the one previously
called) also resulted in an automated message that stated that it “is disconnected or is no
longer in service.”
4

The Office of Inspector General is charged with effecting exclusions based on sections
1128(a) and 1128(c)(3)(B) of the Act. See 42 C.F.R. § 1001.101. If the I.G. determines
that a conviction constitutes a proper predicate for the exclusion, he must send notice of
his decision to exclude to the affected individual or entity, and must in that notice provide
detailed information on several important points, including the appeal rights of the party
to be excluded. 42 C.F.R. § 1001.2002; see also section 1128(c) of the Act, 42 U.S.C.

§ 1320a-7(c).

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

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

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

The request for a hearing will be made in writing to the DAB; signed by the
petitioner or respondent, or by his or her attorney; and sent by certified mail.
The request must be filed within 60 days after the notice, provided in
accordance with §§ 1001.2002, 1001.203 or 1003.109, is received by the
petitioner or respondent. For purposes of this section, the date of receipt of
the notice letter will be presumed to be 5 days after the date of such notice
unless there is a reasonable showing to the contrary.

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

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

The ALJ may not extend the 60-day filing deadline. A tardy or dilatory petitioner can
gain relief only by negating the presumption of receipt through a reasonable showing that
the notice letter was not received as presumed by 42 C.F.R. § 1005.2(c).
IV. Findings and Conclusions
I find and conclude as follows:

1. The I.G. mailed notice of the proposed exclusion of Petitioner from Medicare,
Medicaid, and all other federal health programs pursuant to section 1128(a)(1) of the Act
to Petitioner at the place of her incarceration by letter on July 31, 2002. I.G. Ex. 1.

2. Petitioner received the I.G.’s notice letter of July 31, 2002 not later than August 6,
2002. I.G. Exs. 1, 2; 42 C.F.R. § 1005.2(c).

3. Petitioner mailed her Request for Hearing on or about August 8, 2006, from the place
of her incarceration. I.G. Ex. 3; Petitioner’s Request for Hearing.

4. The address and inmate number to which the I.G.’s notice letter of July 31, 2002 was
sent are identical to the return address and inmate number given by Petitioner in her
August 8, 2006 Request for Hearing. I.G. Exs. 1, 3; Petitioner’s Request for Hearing.

5. Petitioner has failed to make a reasonable showing that she did not receive the I.G.’s
notice letter of July 31, 2002, on or before August 5, 2002. P. Ex. 1; 42 C.F.R.
§ 1005.2(c).

6. Petitioner’s Request for Hearing was not timely filed and must be dismissed. 42
CF.R. §§ 1001.2007(b), 1005.2(c), and 1005.2(e)(1).

V. Discussion

My ruling on the I.G.’s Motion to Dismiss relies on four principles well recognized in the
jurisprudence of this forum. The first principle is the presumption in favor of the regular
delivery within five days of exclusion notices sent pursuant to 42 C.F.R. § 1001.2002;
this principle is established by 42 C.F.R. § 1005.2(c) and is endorsed in Sharon R.
Anderson, D.P.M., DAB No. 1795 (2001). The second principle is the precedent-
established rule that “a reasonable showing to the contrary” of that presumption must be
made through demonstration of facts calling the presumed delivery of the notice directly
into question, and not by mere speculation or self-serving denials of receipt. Andrew M.
Perez, DAB CR1371 (2005); George P. Rowell, M.D., DAB CR974 (2002); Peter D.
Farr, M.D., DAB CR909 (2002); Sunil R. Lahiri, M.D., DAB CR296 (1993). The third
principle, established by regulation and repeatedly acknowledged by decision, is that the
ALJ is without jurisdiction to consider an untimely-filed hearing request, because the ALJ
has not the authority to extend the filing deadline and cannot entertain a showing of good

6

cause for late filing. 42 C-F.R. § 1005.2(e)(1); Lynette Mae Rohar, DAB CR1382 (2005);
Andrew M. Perez, DAB CR1371; Patricia Ann Petrak, DAB CR1172 (2004); John F.
Pitts, R.Ph., DAB CR820 (2001); Clifford M. Sonnie, M.D., DAB CR732 (2001). The
fourth principle is the distillation of the first three, and may be summarized thus: if it is
to be timely, the filing of a hearing request pursuant to 42 C.F.R. § 1001.2007(b) must
occur not more than 65 days after the date of the notice letter to which it responds, and
the only relief available from that time limit demands a “reasonable showing” that the
notice letter was not timely received.

This case continues a discussion of that second principle begun by Administrative Law
Judge Keith W. Sickendick, in Andrew J. Goodrow, DAB CR881 (2002). In that case,
Goodrow filed his request for hearing well outside the presumptive 65-day time limit
established by 42 C.F.R. §§ 1001.2007(b) and 1005.2(c). Given the effect of 42 C.F.R.
§ 1005.2(e)(1), Goodrow’s only hope of avoiding dismissal lay in showing that his
serious psychological illness at the time he was presumed to have received the I.G.’s
notice letter functionally negated his receipt of the letter. Although the facts of that case
did not support Goodrow’s claim of functional non-receipt, ALJ Sickendick was quite
prepared to accept Goodrow’s underlying theory:

I can envision a set of facts where a petitioner may be found not to have
received notice of intent to exclude due to mental impairment so severe as
to have deprived the petitioner of the ability to understand the nature of the
proceedings and the petitioner’s rights.

Andrew J. Goodrow, DAB CR881, at 4.

AL] Sickendick’s observation was, and remains, perfectly consistent with other
discussions in this forum of the operation of 42 C.F.R. §§ 1001.2007(b), 1005.2(c), and
1005.2(e)(1). Simply put, the law of this forum holds that a petitioner may not be
excused from missing the filing deadline, provided that the presumption of receipt in due
course remains intact. That presumption has been held rebutted by evidence that a
petitioner had not lived at the address to which the notice letter was sent for a
considerable time, Mira Tomasevic, M.D., DAB CRI7 (1989), and Sean M. Maguire,
M.D., DAB CR837 (2001). It has been held rebutted by evidence of a petitioner’s
parallel or collateral activity in corresponding with government agencies in ways that
suggested circumstantially that he had not received the notice letter. Mark K. Mileski,
DAB No. 1945 (2004). It has been suggested in dicta that proof of a third party’s
interference with the notice letter could constitute a “reasonable showing” in rebuttal of
the presumption. Julio M. Soto, M.D., DAB CR418 (1996). But in every case in which
the presumption has been argued inapplicable, the issue has been one of fact, and the
7

resolution of the issue has depended on the fact-finder’s evaluation of the particular
contents of the petitioner’s proffer of evidence as a “reasonable showing to the contrary”
of the presumption.

Petitioner has failed to make a “reasonable showing to the contrary” of the presumption
that she received the I.G.’s notice letter in due course. My evaluation of the facts
Petitioner proffers here leaves me unconvinced that she was unable to understand or act
in response to the I.G.’s letter at the time she is presumed to have received it, and equally-
unconvinced that she remained so incapacitated for the next three years and 10 months.

I find that the notice letter was correctly addressed to Petitioner. I.G. Ex. 1; P. Request
for Hearing, at 1. I find that the notice letter was not returned to the I.G. as undelivered
or undeliverable. I.G. Ex. 2. Petitioner appears to admit that the letter was physically
delivered to her. P. Ex. 1, at 5, 7-8. Thus, the presumption of the letter’s physical delivery
to Petitioner is unchallenged, and I find that the letter was delivered to Petitioner not later
than August 6, 2002.

I have carefully reviewed the affidavit in which Petitioner describes the illnesses from
which she claims to have suffered while incarcerated, and I have done so mindful of her
pro se status. P. Ex. 1. But the very substantial shortcomings in her version of matters
amount to material failures of proof as to the-nature, severity, effect, time, and duration of
her claimed incapacity.

First, there are absolutely no medical records of any sort before me. Petitioner has
described the nature of her illnesses, including what she describes as a brain tumor,
diabetes, liver and lung impairments, hypertension, generalized swelling, and what is
most likely neuro-sarcoidosis. She has provided documentation of the existence and
treatment of none of these alleged impairments. No records of her medications — and
only the name of one — are before me. Those records are available to Petitioner: she
was during virtually the entire briefing cycle in this case, with the possible exception of
its very last days, an inmate at a federal facility operated specifically for incarcerated
persons in need of medical care. Their absence from this record permits the factual
inference that they would not be helpful to Petitioner if they had been proffered.

Nor has Petitioner submitted evidence from any third-party witnesses to her condition
during the 60 days immediately following August 5, 2002. Assuming briefly arguendo
that the facility’s medical records might not be readily available to an inmate, there is no
apparent reason for the absence of statements from other inmates, security staff, medical
staff, or counselors except the reason I have inferred above: that they would not be
helpful to Petitioner if they had been proffered.
8

The existence of one or more medical conditions is a question of fact entirely distinct
from the factual question of a medical condition’s severity and the factual question of the
effect thereby produced. Petitioner describes the course of her criminal prosecution as
having been resolved by guilty plea and sentence after an earlier mistrial based on her
sudden episode of apparent decompensation. P. Ex. 1, at 3-4. But the very fact that
Petitioner later was able to negotiate a plea agreement, offer a guilty plea acceptable to
the court, and appear for sentencing argues irrefutably for her competence at the time of
those proceedings. 18 U.S.C. §§ 4241, 4244; FED. R. CRIM. P. 11(b), 32(i). This record
does not establish the dates of those proceedings, but Petitioner concedes that she was, in
fact, competent then. P. Resp., at 2. Thus, the last point at which the effect of her
illnesses can be objectively assessed shows that she was not incapacitated to a degree
which would functionally negate her receipt of the I.G.’s letter.

Moreover, just as nothing about the factual existence of the alleged illnesses has been
shown, and just as nothing about the factual effect of any of those alleged illnesses has
been shown, nothing factual has been shown about the time or times of their onset, or
about the factual duration of any of them. It is impossible to draw any conclusions about
Petitioner’s capacity at any given time during the 46 months between her receipt of the
I.G.’s letter and the date she mailed her Request for Hearing. She admits that the letter
was in her possession during that time (P. Ex. 1, at 7-8), but that admission means that
unless she has proven her incapacity for the first 44 of the entire 46 months, her August 8,
2006 Request for Hearing is untimely. The I.G.’s argument on this point is correct: even
assuming that Petitioner experienced periods of incapacity between August 2002 and
August 2006, the only way that the August 8, 2006 Request can be timely is if her
incapacity remained uninterrupted between August 5, 2002 and June 9, 2006. I.G. Rep.
Br. at 7-8. She has made no such showing.

What is before me is very like what was before ALJ Sickendick in Goodrow: a claim of
medical incapacity unsupported by any reliable evidence of details obviously important in
that context. Petitioner’s claim of incapacity is self-serving and unsupported by objective
medical evidence which, if extant, would easily have been obtained. She has not
proffered evidence from third parties, expert or non-expert. The evidence Petitioner has
offered in support of her claim is inexact as to the temporal span or functional severity
and effect of her illnesses at any given time. Taken in all, the evidence fails to show that
Petitioner was incapacitated by illness at any time between August 5, 2002 and June 9,
2006 in a way that functionally negated her receipt of the I.G.’s notice letter. I find as a
matter of fact that Petitioner has failed to make a reasonable showing that she did not
receive the I.G.’s notice letter of July 31, 2002, on or before August 5, 2002.
VI. Conclusion

For all of the reasons set forth above, I grant the I.G.’s Motion to Dismiss. Pursuant to 42
C.F.R. § 1005.2(e)(1), the Request for Hearing filed by Petitioner pro se Shirley A. Jones
on August 8, 2006 must be, and it is, DISMISSED.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Highland Pines Nursing Home, ) Date: February 06, 2007

)
Petitioner, )
)

“Vee ) Docket No. C-06-229

) Decision No. CR1563
Centers for Medicare & Medicaid )
Services. )
)

DECISION

I sustain the determination of the Centers for Medicare & Medicaid Services (CMS) to
deny Petitioner, Highland Pines Nursing Home, Ltd., payment for new Medicare
admissions for a period that began on December 21, 2005, and which ran through January
10, 2006.

I. Background

Petitioner is a skilled nursing facility in Longview, Texas. It participates in the Medicare
program. Its participation in Medicare is governed by sections 1819 and 1866 of the
Social Security Act as well as by implementing regulations at 42 C.F.R. Parts 483 and
488.

Petitioner was surveyed for compliance with Medicare participation requirements on
November 18, 2005 (November survey) and on January 11, 2006 (January survey) and at
each survey was found to be out of compliance with various requirements. CMS
concurred with the surveyors’ findings of noncompliance and imposed against Petitioner
the remedy of denial of payment for new Medicare admissions covering a period running
from December 21, 2005 through January 10, 2006. Petitioner requested a hearing and
the case was assigned to me for a hearing and a decision.
2

Theld a hearing at Dallas, Texas on November 6, 2006. At the hearing I received into
evidence from CMS exhibits (Ex.) consisting of CMS Ex. | - CMS Ex. 40. I received
exhibits from Petitioner consisting of HP. Ex. | - HP. Ex. 18. I also heard the cross
examination of several witnesses whose written direct testimony had been received in the
form of exhibits.

After the hearing Petitioner moved that I receive into evidence an additional exhibit
which it designated as HP. Ex.19. I am receiving the exhibit. The exhibit consists of a
notice and attachments that the Texas Department of Aging and Disability Services sent
to Petitioner on December 5, 2005. I find no prejudice to CMS in my receiving the
exhibit in that it is a public record document.

Il. Issues, findings of fact and conclusions of law
A. Issue

The issue in this case is whether Petitioner failed to comply substantially with one or
more Medicare participation requirements during the period that began on December 21,
2005 and which ran through January 10, 2006.

B. Findings of fact and conclusions of law

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

The surveyors who conducted the November and January surveys found that Petitioner
was not complying substantially with several Medicare participation requirements.
However, and as I explain in more detail below, I do not find it necessary for me to
address each of these findings of noncompliance in order to sustain CMS’s remedy
determination. A failure by a facility to comply with only one participation requirement
is sufficient basis for CMS to impose denial of payment for new Medicare admissions for
so long as the noncompliance persists. 42 C.F.R. § 488.417(a).

Irest my decision in this case on Petitioner’s failure to comply with the requirements of
42 C.F.R. § 483.25 during the period in question. The noncompliance with this
regulation was found at the November survey. CMS Ex. 3, at 1 - 8. In this case the
evidence is overwhelming that Petitioner failed to comply substantially with the
regulation’s requirements. Petitioner failed to offer persuasive evidence proving that it
corrected its noncompliance prior to January 10, 2006.
3

1. Petitioner failed to comply substantially with the requirements of 42
CF.R. § 483.25.

The regulation at issue mandates that each resident of a skilled nursing facility must
receive, and that the facility must provide, the necessary care and services for the resident
to attain or maintain the highest practicable physical, mental, and psychosocial well-
being. CMS alleges that Petitioner failed to comply with the regulation’s requirements in
providing care to a resident who is identified in the report of the November survey as
Resident # 1. CMS Ex. 3, at | - 8. CMS contends that Petitioner’s staff failed to assess
the resident accurately and timely in order to prevent a decline in his physical and
psychosocial well-being. More specifically, CMS asserts that Petitioner failed to assess
this resident’s needs for assistance with eating and toileting and failed to assess and
address observations by Petitioner’s staff that the resident suffered an extreme loss of
weight, 50 pounds, in a two-week period.

CMS offered prima facie evidence that strongly supports these contentions. The evidence
supports a conclusion that Petitioner’s staff was put on notice — by the resident, by his
family, and by events occurring during the resident’s stay — that there were at least
potential serious problems concerning the resident’s ability to eat and use the toilet.
Moreover, Petitioner’s reported loss of more than 50 pounds in a period of less than two
weeks was an event that should have caused Petitioner to assess the resident’s condition
thoroughly. Yet, Petitioner failed to address these potential problems systematically or
effectively.

Petitioner’s staff was on notice that Resident # 1 had possible problems both with use of
the toilet and with eating. The resident was admitted to Petitioner’s facility on August 9,
2005. Forms submitted by the resident and on his behalf at time of admission show that
the resident had a history of problems with using the toilet and with incontinence. CMS
Ex. 7, at 84. An additional problem noted at the time of the resident’s admission was that
he was blind, and consequently, needed assistance with eating. Id.

Petitioner’s records contain conflicting and inconsistent assessments of the resident’s
problems. For example, and notwithstanding the information communicated to the
facility by the resident and his family, Petitioner’s staff assessed the resident in August
2005 as being able to eat independently, requiring only help with setting up his meals.
Id., at 57, Moreover, Petitioner’s staff assessed the resident as being able to use a toilet
independently without requiring physical assistance from the staff. Jd. A minimum data
set (MDS) prepared for Resident # | states that the resident could eat independently.
CMS Ex. 7, at 57. However, another document states that the resident required assistance
with his eating due to being blind. Jd.
4

Events occurring during the resident’s stay at Petitioner’s facility should have made it
evident to Petitioner’s staff that there was a need to assess the resident far more
thoroughly for his possible problems and to address them to the extent that interventions
were needed. On three occasions during his stay Resident # 1 fell while attempting to use
the bathroom. CMS Ex. 7, at 23 - 25. Yet, these falls did not trigger thorough
investigations by Petitioner’s staff into the causes of, and possible remedies for, the falls.
The resident was not assessed for frequency of urination in order to determine whether he
might benefit from being put on a toileting schedule. CMS Ex. 3, at 5. Nor did
Petitioner’s staff thoroughly assess the resident’s need to use the toilet after the resident
was put on diuretic medicine which might have increased the frequency of his need to
urinate. Transcript (Tr.) at 30.

For example, the resident sustained a fall on November 1, 2005. A document entitled
“follow-up disposition” was prepared by Petitioner’s staff. CMS Ex. 7, at 143 - 144. The
document, which is a printed form, contains lines labeled “assessment”. Jd. But, aside
from recording vital signs and a few laconic comments about the resident’s condition, the
document says absolutely nothing about the cause of the resident’s fall, the problems that
might have contributed to the fall, or the staffs proposed solutions to those possible
problems. Jd.

Furthermore, Petitioner’s staff was put on notice that the Resident might be having
problems seeing his food and that his blindness was interfering with his ability to eat.
The facility’s diet intake record states that the resident was consuming between 50 and
100% of the food that was offered to him. However, this is contradicted, both by
statements made by the resident, who asserted to a surveyor that he had difficulty finding
the food on his plate, and by a member of Petitioner’s staff who stated that the resident
consumed less than 50% of what was offered to him. CMS Ex. 3, at 6 - 7; CMS Ex. 7, at
ll.

I make no findings in this decision whether Resident # 1 could eat independently or use
the toilet without assistance. Whether the resident actually suffered from these problems
is irrelevant to my decision. The allegation made by CMS ~ which is amply supported by
Petitioner’s own records ~ is that Petitioner was put on notice by the resident and his
family, as well as by events occurring during the resident’s stay, that he had difficulty
eating due to his blindness and that he needed assistance using the toilet. That
information triggered a duty on Petitioner’s part to assess fully and adequately the
resident’s specific needs and to develop a detailed care plan to address those needs that
were identified. However, the resident’s treatment record fails to show that Petitioner or
its staff made efforts to reconcile the conflicting information that they received or to get
to the bottom of the resident’s possible problems. The record is devoid of anything in the
nature of a comprehensive assessment of these possible problems.
5

Perhaps the most compelling evidence that Petitioner’s staff failed adequately to assess
Resident # 1’s needs is the resident’s weight loss during his stay at Petitioner’s facility.
CMS offered strong prima facie proof that the resident sustained a dramatic weight loss
during October 2005, at a time when he was complaining of dizziness and weakness, and
evidencing nausea, vomiting, and gastrointestinal distress. Yet, Petitioner’s staff did not
interpret these facts as alarming nor did they perform an assessment of the resident in
order to determine what might be the cause of the resident’s problems.

The resident’s weight was recorded at 200 pounds upon his admission in August 2005.
On subsequent dates up to and including October 24, 2005, his weight was consistently
recorded at or very close to 200 pounds. CMS Ex. 7, at 13. However, on November 4,
2005, his weight was measured at 147 pounds. Jd. Thus, according to Petitioner’s own
records the resident’s weight declined by more than 50 pounds in a period of less than
two. weeks.

The resident’s apparent weight loss occurred during a period of time when the resident
was complaining of and evidencing weakness and dizziness. On October 24, 2005, the
resident told Petitioner’s staff that he was weak and dizzy. CMS Ex. 7, at 90. On
October 31, 2005, Resident # | again complained to the staff that he felt weak and dizzy.
Id.

Resident # 1 was admitted to a hospital on November 4, 2005 to evaluate his weight loss
and possible dehydration and malnutrition. CMS Ex. 7, at 73. At admission the
resident’s weight was recorded at 148 pounds. CMS Ex. 3, at 4. He was found to be
suffering from hypotension (low blood pressure) as well as signs of dehydration, poor.
nutritional uptake, and gastrointestinal illness. CMS Ex. 7, at 73. He stayed in the
hospital for a week. He was returned to Petitioner’s facility on November 11, 2005,
weighing 168 pounds, having gained 18 pounds during his approximately one week stay
at the hospital. Jd.

I make no findings in this decision as to the cause of Resident # 1’s weight loss. Nor do I
find that Petitioner’s staff caused the resident to lose weight by failing to attend to his
needs on any given day. Any number of possibilities exist for the resident’s weight loss,
ranging from the effects of diuretic medications, to malnutrition, to some sort of
gastrointestinal illness, And, it is certainly possible that Petitioner’s staff may not have
recorded the resident’s weights with complete accuracy.' Rather, I premise my finding

' If the resident’s weight was not recorded accurately, the inaccuracy lay in a
measurement taken prior to November 4, 2005. The resident’s weight of 147 on that date
is virtually identical to his weight at the hospital on the subsequent day. That means that

(continued...)
6

that Petitioner’s care of the resident was deficient on the fact that the resident’s
complaints, his obvious deterioration, and the staff’s measurements of the resident’s
weight put Petitioner on notice that this resident had at least a potential severe problem of
which rapid weight loss was a sign. That evidence triggered an obligation by Petitioner’s
staff to assess the resident thoroughly and completely in order to ascertain the reasons for
the apparent problem and to plan the resident’s care based on that assessment.

The prima facie evidence is that Petitioner failed utterly to do that. The record is devoid
of a comprehensive assessment of the resident’s weight loss.

The prima facie evidence presented by CMS establishes a consistent and long standing
pattern of failures by Petitioner’s staff to assess Resident # 1’s apparent problems and to
develop a rational plan of care to address those problems that were established. Under 42
C.F.R. § 483.25 a facility has a duty to conduct exactly the type of assessment that
Petitioner failed to conduct here. It is not possible for a facility to maximize a resident’s
physical, mental, and psychosocial well-being unless it is aware of and has developed a
plan to deal with each problem that is evidenced by a resident.

Petitioner did not offer evidence that overcame CMS’s prima facie case. Petitioner
argues, first, that it performed all required assessments for Resident # 1, that it reported
significant changes in the resident’s medical condition to the resident’s treating physician,
and that when a significant change was observed, its staff obtained and implemented new
treatment orders for the resident. Petitioner’s post-hearing brief at 2; see HP Ex. 13, at
43-47, I find this argument to be unpersuasive. The evidence cited by Petitioner to
support its contention - HP Ex. 13, at 43 - 47 — consists of interdisciplinary progress
notes made about Resident # 1 on November 4, 2005. They address the resident’s
physical condition, his complaints, and his appearance on that date, the date of his
admission to the hospital. They are not in any sense of the word an assessment of his
underlying problems, including his weight loss, or their causes, nor do they consist of an
analysis of the care that was needed to address the resident’s problems. Finally, although
the notes are relevant to the resident’s condition on November 4, they say nothing
whatsoever about the resident’s condition or problems in the preceding months.

‘(...continued)
one or more of the previous measurements was inaccurate. In a sense, that makes the
resident’s weight loss and the failure of Petitioner’s staff to assess it even more troubling.
Obviously, a loss of about 25% of body weight over a period of time would produce a
change in the resident’s physical appearance. That should have been evident to
Petitioner’s staff. However, I see nothing in the record of this case showing that the staff
observed such change or recorded it.
7

The exhibits offered by Petitioner included a collection of various assessment forms
completed for Resident # | by Petitioner’s staff. HP Ex. 8. The exhibit does not show
that Petitioner performed the assessments indicated by the resident’s potential problems.
For example, Petitioner’s staff performed a “falls assessment” of Resident # 1 on August
9, 2005. Jd., at 7. But, no follow up falls assessments appear to have been performed
despite the three falls that the resident sustained after August 9, 2005. See Id. A nutrition
screening and assessment data collection form also was prepared for the resident on
August 9, 2005. Id., at 12 - 13. But, Petitioner’s staff did no follow-up assessment of the
resident’s nutritional status until November 15, 2005, after the resident had lost more than
50 pounds and after he had been hospitalized for problems that included possible
malnutrition. /d., at 13.

Second, Petitioner argues that the resident’s record while at Petitioner’s facility is “well-
documented”, most significantly in respect of the resident’s gastrointestinal problems in
October 2005. Petitioner’s post-hearing brief at 2. But, this case is not simply a case of
failure to document the resident’s problems. I make no findings as to how faithfully or
accurately Petitioner’s staff recorded the resident’s complaints and vital signs and the care
that the staff gave to him. What is alleged here — and what CMS’s prima facie evidence
establishes — is that Petitioner’s staff failed to use their observations and findings as a
basis for assessing and treating the resident’s apparent problems.

Third, Petitioner contends that the deficiency findings in this case were written without
any regard to the resident’s diagnosis, his physician’s recommendations and treatment
orders, and the care provided to Resident # 1 as documented in the resident’s records.
Petitioner’s post-hearing brief at 3. I disagree with this assertion. The evidence and
argument offered by CMS very much takes into account the resident’s condition and what
was or was not done for him by Petitioner’s staff. What CMS alleges, and what I find to
be supported by CMS’s prima facie case and not rebutted by Petitioner, is that Petitioner’s
staff did not do enough to meet the resident’s apparent needs.

Implicit in Petitioner’s argument seems to be an assertion that the staff was not remiss in
caring for Resident # 1 because it attended to his specific problems as they arose and
because the staff was faithful in executing the resident’s physician’s orders. I make no
findings here as to whether that is true, because it begs the question of whether Petitioner
was deficient. The requirements of 42 C.F.R. § 483.25 are that a facility and its staff
aggressively assess the needs of a resident and plan for his or her care. Simply reacting to
problems as they arise and faithfully following a resident’s treating physician’s orders is
not sufficient to satisfy the regulation’s requirements. Consequently, Petitioner’s
diligence in carrying out prescribed care for the resident — if that is true — is not enough to
satisfy the regulation’s requirements.
8

Fourth, Petitioner argues that CMS’s findings of noncompliance are based on hearsay
assertions by the resident’s sister and brief telephone interviews with the resident.
Petitioner’s post-hearing brief at 3. That is not an accurate characterization of the
evidence relied on by CMS. Much of CMS’s findings are based on the clinical records
developed by Petitioner’s staff. Moreover, the complaints vocalized to the surveyors by
the resident and his sister echo statements that were made previously to Petitioner’s staff
by the resident or his family. It is important to note that I do not base my decision in this
case on findings that the resident’s statements or those made by his family are necessarily
true. The point is that statements made by the resident and his family to Petitioner’s staff
put the staff on notice of potential problems which the staff had the duty to investigate,
assess, and to remedy if substantiated. The deficiency here lies squarely in Petitioner’s
staff failure to act on what it was told.

Fifth, Petitioner suggests that the hospitalization of Resident # 1 on November 4, 2005
was likely unnecessary and, consequently, should not reflect adversely on the care that
Petitioner’s staff gave to the resident. Petitioner’s post-hearing brief at 3 - 5. It is
certainly hard to square this argument with the objective findings of hypotension,
dehydration, and possible malnutrition that were made at the hospital. Moreover, the fact
that the hospital retained the resident for a full week after November 4, 2005 is strong
evidence as to his condition and his need for hospitalization. But, whether or not the
resident actually needed to be hospitalized in November 2005 is ultimately immaterial.
Again, the point is the failure by Petitioner’s staff to assess whatever problem the resident
manifested or appeared to manifest.

Finally, Petitioner asserts that CMS is simply basing its case against Petitioner on the
medical decline of Resident # 1 in October and November 2005 without considering the
care that Petitioner’s staff actually provided to the resident. Petitioner’s post-hearing
brief at 5. This argument is simply incorrect. The allegations — and, more importantly,
my findings of noncompliance — are not based on the outcome that Resident # 1
experienced but on the failure of Petitioner’s staff to react to and to address aggressively
problems manifested by the Resident as they were brought to the attention of Petitioner’s
staff.

Petitioner’s several arguments, whether considered singly or in combination, avoid
addressing the central point of CMS’s case. CMS alleged that Petitioner failed to perform
the assessments of Resident # 1’s apparent problems and to plan the resident’s care
accordingly and it backed up these allegations with prima facie evidence showing that
Petitioner knew or should have known about the resident’s apparent problems but failed
to develop assessments and plans to address them. If Petitioner had performed the
requisite assessments and plans it could have addressed CMS complaints simply by
producing copies of those documents. It failed to do so.
9

2. Petitioner’s noncompliance with the requirements of 42 C.F.R.
§ 483.25 persisted through January 10, 2006.

Petitioner asserts that, if it was deficient as of the November survey, it corrected its
deficiencies prior to the implementation date of CMS’s denial of payment for new
admissions. According to Petitioner there is no basis for a remedy in this case because
Petitioner was complying with Medicare participation requirements on the dates.
(December 21, 2005 through January 10, 2006) for which the remedy was imposed.

Petitioner’s assertion is without merit. Petitioner did not prove that it corrected its failure
to comply with the requirements of 42 C.F.R. § 483.25 prior to January 11, 2006.

Where there is a substantiated finding of noncompliance with a participation requirement
~as is the case with Petitioner’s noncompliance with 42 C.F.R. § 483.25 — the burden
falls entirely on the noncompliant facility to prove when and how it remedies its
deficiency. In other words, a facility, once established to be noncompliant is presumed to
remain noncompliant until it proves that it has remedied the deficiency.

Petitioner argues that it submitted an “acceptable plan of correction” to the Texas
Department of Aging and Disability Services, the State agency which performed the
November and January surveys on behalf of CMS. Petitioner’s post-hearing brief at 11.
It argues that the State agency “determined that all corrections had been made on
December 18, 2005.” Jd.; see HP Ex. 19. From this Petitioner asserts that I must find
that it corrected all of the deficiencies that were identified at the November survey by
December 18, 2005, three days prior to implementation of CMS’s remedy. Consequently,
according to Petitioner, there were no deficiencies resulting from the November survey
for which CMS could impose a remedy. Jd.

Petitioner’s assertions notwithstanding, no document cited by Petitioner states that either
the Texas State agency or CMS found Petitioner to be in compliance with participation
requirements at any time prior to January 11, 2006. The exhibit relied on by Petitioner is
a letter that the Texas State agency sent to Petitioner on December 5, 2005. HP Ex. 19.
The letter plainly states that the findings of the November survey were that Petitioner was
not in substantial compliance with participation requirements. Jd., at 1. It directs
Petitioner to submit a plan of correction to address the survey’s deficiency findings. Jd.
Nothing in the letter states or suggests that mere submission of a plan — even one that the
Texas State agency finds to be acceptable — will, in and of itself be sufficient to establish
compliance.
10

Moreover, there is no communication to Petitioner from CMS, the agency that ultimately
determined to impose a remedy, suggesting that mere submission of a plan of correction
by Petitioner would be enough to establish compliance with participation requirements.
Petitioner was never told, either by the Texas State Agency or by CMS, that submission
of a plan would in and of itself resolve the issue of compliance.

Furthermore, the fact that CMS determined to impose a remedy against Petitioner is proof
that CMS never found Petitioner to be in compliance with participation requirements at
any date prior to January 11, 2006. The notice of CMS’s determination to impose
remedies against Petitioner was CMS’s final action in this case prior to Petitioner’s
requesting a hearing.”

Although Petitioner averred that it submitted an acceptable plan of correction it did not
discuss the specifics of that plan in its post-hearing brief nor did it cite to the plan. See
Petitioner’s post-hearing brief at 11. It is unclear whether the plan was even offered by
Petitioner as an exhibit. In any event, the fact that Petitioner submitted a plan of
correction to the Texas State Agency or CMS does not mandate that I conclude that it
corrected its deficiency on or prior to any given date. A plan of correction is a
representation by a facility of what it intends to do in order to correct a deficiency.
Acceptance of a plan by a State agency or CMS means that the elements of the plan, if
they are completed by the facility, will be an acceptable mechanism for attaining
compliance. But, acceptance of the plan by a State agency or CMS does not mean
necessarily that the State agency or CMS agrees the elements of the plan have been
completed. In all cases CMS reserves the authority to insist that a facility provide proof
aside from its representations that it completed the elements of the plan.

Here, the only evidence that appears to exist in the record relating to Petitioner’s
correction of its noncompliance with 42 C.F.R. § 483.25 appears to be an “action plan”
that Petitioner’s staff prepared in or about November 2005. CMS Ex. 14. This plan
contains elements which address: toileting plans for residents; weight variance; scale

2 Petitioner makes other arguments to the effect that imposition of the remedy in
this case was not done in compliance with requirements in the State Operations Manual.
Petitioner’s post-hearing brief at 12 -14. I find these arguments to be without merit.
Nothing in Petitioner’s arguments shows that CMS was without authority to impose the
remedy of denial of payment for new admissions. That authority is clearly delineated in
regulations. CMS has the discretion to impose denial of payment for new admissions
where there is noncompliance with as few as a single Medicare participation requirement.
42 CFR. § 488.417(a).
11

calibration; and meal intake records. Several of the corrective actions described in the
plan are listed as being “ongoing,” which I take to mean that completion dates for the
actions were not established as of the date that the action plan was prepared. Id., at 1 - 2.
Others show completion dates in November 2005.

The action plan is relevant to the issue of Petitioner’s correction of its noncompliance
with 42 C.F.R. § 483.25 because it addresses specifically some of the problems that were
identified as comprising Petitioner’s noncompliance with the regulation. However, I do
not find it to be persuasive proof that Petitioner attained compliance with the regulation’s
requirements prior to January 11, 2006.* For one thing, the document does not establish
completion dates for all of the corrective actions that it lists. Moreover, Petitioner has not
provided any corroboration that these actions were completed. For example, the action
plan discusses in-service training of nurses and staff in certain specific areas. The plan
states that such in-service training was completed on November 14, 2005. CMS Ex. 14,
at 4 - 5. However, Petitioner has not cited to any actual documentation of the in-service
training.

At bottom, Petitioner’s argument that it corrected its noncompliance with 42 C.F.R.

§ 483.25 before the implementation date of the remedy in this case rests more or less
entirely on its uncorroborated assertion of compliance. I find Petitioner’s assertions of
compliance not to be persuasive absent some substantial corroboration that it actually
attained compliance. Petitioner has not offered corroborating evidence showing that it
actually complied. For example, Petitioner has not pointed to updated and in-depth
assessments of its residents’ problems showing that it had taken to heart and addressed
the assessment-related problems cited by the surveyors in the report of the November
survey.

3. It is unnecessary that I address other deficiencies cited at the
November and January surveys in order to justify CMS’s authority to
impose denial of payment for new admissions during the December 21,
2005 - January 10, 2006 period.

As I discuss above, the reports of the November and January surveys cited deficiencies in
addition to Petitioner’s noncompliance with the requirements of 42 C.F.R. § 483.25. Any
of these deficiencies, individually or in combination, would be sufficient to establish a
basis for imposition of the remedy at issue if sustained for the period in question.

> [note that Petitioner did not cite or discuss the action plan in its brief as
evidence of its compliance. Petitioner’s post-hearing brief at 11 - 14.
12

However, is unnecessary that I discuss these deficiencies in order to decide this case.
Petitioner’s noncompliance with 42 C.F.R. § 483.25 during the period at issue is all that is
necessary to sustain CMS’s authority to impose the remedy. Regulations make it plain
that presence of only a single deficiency is adequate to sustain imposition of denial of
payment for new admissions. 42 C.F.R. § 488.417(a).

Therefore, I make no findings in this case about the presence or absence of additional
deficiencies. It is simply unnecessary that I do so here in order to sustain the remedy that
is at issue.

/s/

Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In re CMS LCD Complaint:

Date: February 02, 2007

Local Medical Review Policy (LMRP)
Title ICD-9 477.8 Allergen Immuno-
therapy H-11B-R3.

Docket No. C-05-406
Decision No. CR1562

weve ve ve ye ye vw

DECISION DISMISSING CASE

In an Order issued December 18, 2006, I informed Ms. Waters, the Medicare beneficiary
who filed the complaint challenging the Local Coverage Determination (LCD) at issue in
this case, that it appeared that the Carrier had demonstrated that I did not have jurisdiction
over this case. I reached that tentative conclusion because the Carrier argued persuasively
that Ms. Waters’ claims for allergen immunotherapy had been denied based on individual
medical review and not based on the LCD at issue in this case. According to the Carrier,
individual medical review of those claims led to the conclusion that payment should be
denied because the use of allergen immunotherapy to treat allergies to smuts and terpenes
was regarded by the Carrier as investigational.

The Carrier's contention that Ms. Waters’ claims had not been denied based on the LCD
was significant because, if Ms. Waters’ claims were not denied based on the LCD, then
she could not be an “aggrieved party” with standing to challenge the LCD. Under the
applicable regulations, only an aggrieved party may initiate an LCD challenge. 42 C.F.R.
§ 426.320. The regulatory definition of an aggrieved party includes three criteria. He or
she (1) must be a Medicare beneficiary, who (2) is in need of a service that is denied
based on the applicable LCD, and (3) must have documentation of need from the treating
physician. 42 C.F.R. § 426.110 (emphasis added).

In an earlier Order, issued February 3, 2006, I had found that Ms. Waters satisfied the
criteria and, thus, could be considered an aggrieved party. In the February 3 Order, I also
found that Ms. Waters’ complaint was acceptable to challenge the LCD at issue. The
further developments outlined above led me to conclude that my earlier findings had been
premature, and required reconsideration.

Accordingly, my December 18 Order gave Ms. Waters until January 4, 2007 to file any
additional arguments or evidence she might have to show that she is an “aggrieved party”
as defined by the regulations. The time for filing such information has passed, and Ms.
Waters has not filed anything further. Therefore, based on the present record, I conclude
that Ms. Waters is not an “aggrieved party” and, accordingly, | must dismiss this case.

As outlined above, Ms. Waters is not an “aggrieved party” because her claims for allergen
immunotherapy were not denied based on the applicable LCD. Since Ms. Waters is not
an “aggrieved party,” her complaint is unacceptable. 42 C.F.R.§ 426.410(b)(1). | have
afforded her the opportunity to demonstrate that she is an “aggrieved party,” which
satisfies the regulatory requirement at 42 C.F.R. § 426.410(c)(1) that | permit her the
opportunity to amend her complaint. Because she has failed to demonstrate that she is an
“aggrieved party,” Ms. Waters has failed to submit an acceptable complaint within the
timeframe I have established. Therefore, pursuant to 42 C.F.R. § 426.410(c)(2), I must
issue a decision dismissing the complaint.

Pursuant to 42 C.F.R. § 426.450(a), my decision must include findings. Therefore, as
required by 42 C.F.R. § 426.450(a)(3), I find that Ms. Waters has failed demonstrate that
she is an “aggrieved party,” as defined by the regulations and, for that reason, she has
failed to file an acceptable complaint challenging an LCD. Accordingly, for the reasons
set forth above, I decide that this case must be dismissed.

This decision contains the information required by 42 C.F.R. § 426.450(b)(1), (2), and
(6). Because I am dismissing this case for failure to file an acceptable complaint, the
information required by 42 C.F.R. § 426.450(b)(3), (4), and (5) is not applicable and is
not included for that reason.

The aggrieved party has 30 days from the date of this Decision to file an appeal with the
Departmental Appeals Board, in accordance with 42 C.F.R. § 426.465.

/s/

Alfonso J. Montano
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Sushil Gupta, M.D., ) Date: January 31, 2007

)
Petitioner, )
)

-Vv.- ) Docket No. C-06-636

) Decision No. CR1561
The Inspector General. )
)

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Sushil
Gupta, M.D., from participating in Medicare and other federally funded health care
programs for a period of five years.

I. Background

Petitioner is a physician. On July 31, 2006, the I.G. notified Petitioner that he was being
excluded from participating in Medicare and other federally funded health care programs
for a period of five years. The I.G. told Petitioner that his exclusion was imposed
pursuant to section 1128(a)(2) of the Social Security Act (Act) which mandates the
exclusion, for at least five years, of any individual who:

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.

Petitioner requested a hearing and the case was assigned to me for a hearing and a
decision. I held a pre-hearing conference at which I established a schedule for the parties
to submit briefs and written exhibits. I advised the parties that either party could request
an in-person hearing and that I would schedule one if I determined it to be warranted by
that party’s proposed evidence.
2

Neither party requested an in-person hearing. The I.G. submitted a brief, a reply brief,
and five proposed exhibits designated as I.G. Ex. 1 - I.G. Ex. 5.' Petitioner submitted a
brief and an attachment consisting of a brief that he had filed with the Appellate Court of
the State of Connecticut. Petitioner did not designate his attachment as an exhibit. For
purposes of the record, I am designating the brief as P. Ex. 1. I receive into the record
LG. Ex. 1 - 5 and P. Ex. 1.

II. Issue, findings of fact and conclusions of law
A. Issue

The sole issue in this case is whether Petitioner was convicted of a criminal offense that
mandates his exclusion pursuant to section 1128(a)(2) of the Act. The duration of his
exclusion is not at issue — assuming that there is a statutory basis for the exclusion —
because the I.G. excluded Petitioner for the statutory minimum period of five years. See
Act, section 1128(c)(3)(B).

B. Findings of fact and conclusions of law

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

I. The LG. is authorized to exclude Petitioner because he was convicted
of a criminal offense described by section 1128(a)(2) of the Act.

These are the facts. On July 29, 2005, Petitioner was convicted after a trial in the
Superior Court of the State of Connecticut of the crime of fourth degree sexual assault.
LG. Ex. 5, at 1 - 2. Petitioner’s conviction was for two counts of having sexual contact
with patients by means of false representations that the sexual contact was for a bona fide
medical purpose. I.G. Ex. 3, at 2. Essentially, Petitioner was convicted of fondling, and

' The LG. inaccurately styled his brief as a “motion for summary affirmance.”
Summary affirmance or judgment is not what is at issue here. I offered the parties the
option of having the case heard on written evidence in lieu of having an in-person
hearing. That is not the same thing as summary judgment where the moving party must
show that there are no disputed issues of material fact. In a hearing based on written
evidence there is always a possibility that there will be disputed issues of material fact.
All that distinguishes such a hearing from an in-person hearing is the absence of
testimony presented in person.
3

having other sexual contact with, two of his female patients by pretending that such
contact was a necessary element of physical examinations that he performed. /d. at 2 - 9.

The conduct of which Petitioner was convicted clearly constitutes “abuse” within the
meaning of section 1128(a)(2) of the Act. By any definition, inappropriate and unwanted
sexual contact is abusive. Furthermore, such abuse was of patients in the context of
providing medical care to them, in that the individuals that Petitioner was convicted of
abusing were his patients and the abuse took place while he performed physical
examinations of these patients.

The I.G.’s authority to exclude an individual pursuant to section 1128(a)(2) derives from
that individual’s conviction of an offense described by that section. The individual’s
claims of innocence of the crime or crimes of which he was convicted are not relevant to
the issue of authority to exclude so long as there is a conviction. In this case Petitioner’s
conviction of an offense described by section 1128(a)(2) is sufficient to establish the
1.G.’s authority to exclude him.

2. The L.G.’s authority to exclude Petitioner is not vitiated by Petitioner’s
appeal of his conviction.

Petitioner’s sole argument in opposition to the I.G.’s exclusion determination is that he
has appealed his conviction and that it would be a denial of due process to exclude him
while his appeal is pending. I am without authority to consider his argument. There is
nothing in either the Act or regulations that would permit me to enjoin the I.G. from
imposing an exclusion against Petitioner while he appeals his conviction. In hearing and
deciding a case such as this, my authority is limited to applying the Act and regulations as
they are written. I do not have the authority to overrule the I.G.’s determination based on
constitutional or general equity principals where there is nothing in the Act or regulations
that permits me to do so.’

/s/

Steven T. Kessel
Administrative Law Judge

2 The I.G. must reinstate an individual who is excluded based on a conviction if
the conviction is reversed or vacated on appeal. 42 C.F.R. § 1001.3005(a)(1). If
Petitioner prevails in his appeal, the I.G. will reinstate him assuming no other grounds
exist to exclude him. This regulation, however, does not permit or require reinstatement
while an appeal is pending.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
William G. Dotzman, D.O., ) Date: January 29, 2007

)
Petitioner, )
)

-V.- ) Docket No. C-06-488

) Decision No. CR1560
Centers for Medicare & Medicaid )
Services. )
)

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude William G. Dotzman
(Petitioner), from participating in the Medicare, Medicaid, and all other federal health
care programs until he regains his license to practice osteopathic medicine in the state of
Florida. I base my decision on the applicable law and regulations, the documentary
evidence of record, and the arguments presented before me.

PROCEDURAL BACKGROUND

By letter dated February 28, 2006, the I.G. notified Petitioner that he was being excluded
from participation in the Medicare, Medicaid, and all federal health care programs as
defined in section 1128B(f) of the Social Security Act (Act). The I.G. informed
Petitioner that his exclusion was imposed under section 1128(b)(4) of the Act, because his
license to practice medicine or provide health care as an osteopathic physician was
suspended or otherwise lost, or was surrendered while a formal disciplinary proceeding
was pending before the Florida Board of Osteopathic Medicine, for reasons bearing on
his professional competence, professional performance, or financial integrity. I.G.
Exhibit 1.
2

Following a telephone prehearing conference held on August 8, 2006, I issued an Order
establishing briefing deadlines. Pursuant to that Order, the I.G. filed his brief on
September 8, 2006, accompanied by two proposed exhibits. These have been entered into
the record as I.G. Exhibits (Exs.) 1-2, without objection. Petitioner’s response brief was
due on or before October 10, 2006. Petitioner failed to file his brief. Consequently, I
issued an Order on November 30, 2006, advising Petitioner that if he failed to submit a
response brief within 10 days of the date of my Order I would close the record and issue a
decision without the benefit of his argument. Petitioner failed to respond to my Order by
filing a response brief or request additional time to do so. Thus, I am closing the record
and issuing my decision without the benefit of his argument. Furthermore, inasmuch as
there are no issues of material fact in controversy summary judgment is appropriate. See
Edmund B. Eisnaugle, D.O., DAB CR1010, (2003); Michele R. Rodney, DAB CR1332,
(2004); Ramona K. Alexander, DAB CR1334, (2005)

ISSUE

Whether the I.G. had a basis upon which to exclude Petitioner from participation in the
Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f)
of the Act.

APPLICABLE LAW AND REGULATIONS

Section 1128(b)(4)(A) of the Act authorizes the Secretary of Health and Human Services
(Secretary) to exclude an individual whose license to provide health care has been
tevoked or suspended by a State licensing authority, or who otherwise lost such a license
or the right to apply for or renew such a license, for reasons bearing on that individual’s
professional competence, professional performance, or financial integrity. According to
section 1128(c)(3)(E) of the Act, the minimum term of exclusion of an individual who is
excluded pursuant to section 1128(b)(4) must be coterminous with the term of loss,
suspension, or revocation of that individual's license to provide health care.

Under Section 1128(b) of the Act, the Secretary may exclude individuals from receiving
payment for services that would otherwise be reimbursable under Medicare, Medicaid, or
other federal health care programs.

The Act defines “[f]ederal health care program” as “any plan or program that provides
health benefits, whether directly, through insurance, or otherwise, which is funded
directly, in whole or in part, by the United States Government . . .; or any State health care
program, as defined in section 1128(h).” Act, section 1128B(f).
3

The regulations promulgated at 42 C.F.R. §§ 1001.501 and 1001.1901(b) mirror the
statutory measures set forth in the Act. Pursuant to 42 C.F.R. § 1001.2007, an individual
or entity excluded under section 1128(b)(4) of the Act may file a request for a hearing
before an administrative law judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. By letter dated February 28, 2006, the I.G. notified Petitioner that he was being
excluded from participation in Medicare, Medicaid, and all other federal health
care programs pursuant to section 1128(b)(4) of the Act, based on the suspension
of his license to practice medicine by the Florida Board of Osteopathic Medicine,
for reasons bearing on his professional competence, professional performance, or
financial integrity, until he regained his license as a medical doctor in the state of
Florida. I.G. Ex. 1.

2. Petitioner is an osteopathic physician who received a Florida license to practice
medicine on February 1, 2000. I.G. Ex. 2, at 5.

3. On April 13, 2005, the Florida Department of Health issued an Administrative
Complaint requesting that the Florida Board of Osteopathic Medicine discipline
Petitioner, after the Florida Department of Health determined that he was unable to
practice medicine with reasonable skill and safety due to alcohol and cocaine
dependence. I.G. Ex. 2, at 12.

4. Although served with the Florida Department of Health Administrative Complaint,
Petitioner failed to respond or otherwise dispute the facts therein alleged, thereby
waiving his right to a hearing. I.G. Ex. 2, at 1.

5. On September 20, 2005, the Florida Board of Osteopathic Medicine considered the
findings and recommendations of the Florida Department of Health. I.G. Ex. 2, at
2.

6. The following undisputed facts related to Petitioner’s alcohol and cocaine
dependence supported the Florida Board of Osteopathic Medicine’s decision to
suspend his license:

(a) Petitioner was convicted of driving under the influence of alcohol and
failed to report the judgment of guilt as required by section 456.072(1)(w),
Florida Statutes (2004). I.G. Ex. 2, at 13.
4

(b) On at least one occasion, Petitioner smelled of alcohol at work, an
incident which coupled with the driving under the influence of alcohol
conviction, prompted his supervisor to notify the Professionals Resource
Network. I.G. Ex. 2, at 6.

(c) Petitioner was diagnosed with alcohol and cocaine dependence by the
Health Care Connection of Tampa. I.G. Ex. 2, at 8-9.

(d) Petitioner was diagnosed with alcohol abuse and anxiety disorder by
Turning Point of Tampa, Inc., residential treatment program. I.G. Ex. 2, at
9-10.

(e) Petitioner was diagnosed with cocaine dependence by the Professionals
Resource Network. I.G. Ex. 2, at 8-9.

(f) Petitioner admitted to alcohol and cocaine abuse. I.G. Ex. 2, at 12.

(g) Petitioner returned to work at a different location without notifying the
Department of Health that he had changed his place of practice, and without
clearance from the Professionals Resource Network. I.G. Ex. 2, at 14.

(h) Professionals Resource Network found that Petitioner was unfit to
practice his profession with reasonable skill and safety as a result of his
failure to comply with treatment recommendations, his continuing to ingest
alcohol, and his refusal to sign a contract to be monitored by the
Professionals Resource Network. I.G. Ex. 2, at 12.

On September 20, 2005, the Florida Board of Osteopathic Medicine approved and
adopted the findings of the Florida Department of Health. I.G. Ex. 2, at 2.

On September 20, 2005, the Florida Board of Osteopathic Medicine reprimanded

Petitioner, and suspended his license to practice osteopathic medicine for a period
of two years, to be reinstated upon showing the ability to practice medicine safely,
followed by a five-year period of probation. I.G. Ex. 2, at 1-3.

The Florida Board of Osteopathic Medicine is a state licensing authority within the
meaning of section 1128(b)(4)(A) of the Act.
10.

11.

12.

13,

14.

15.

5

Petitioner’s exclusion under section 1128(b)(4)(A) of the Act is based on a state
licensing authority’s suspension of Petitioner’s license for reasons bearing on his
professional competence and professional performance.

The I.G. has the authority to exclude Petitioner from participation in Medicare,
Medicaid, and all federal health care programs based on the circumstances of this
case.

An individual excluded under section 1128(b)(4) of the Act must be excluded for
no less than the period during which the individual’s license to provide health care
has been revoked, suspended, or surrendered. Act, section 1128(c)(3)(E); 42
CFR. § 1001.501(b)(1).

Where the I.G. imposes an exclusion for a period that is concurrent with a sanction
imposed by a state licensing authority, there is no issue as to the reasonableness of
the length of the exclusion as it is the minimum period permitted by law.

The I.G. has no discretion to impose an exclusion that is shorter than the period for
which Petitioner’s license is suspended by a state licensing authority.

Because Petitioner lost his license to practice medicine in Florida, the Act requires
that the period of exclusion will not be less than the period during which the
license to practice medicine in that State was lost. Therefore, Petitioner is required
to obtain from the Florida licensing authority the same type of license that he lost
before he can be considered for reinstatement as a participant in Medicare,
Medicaid, and other federal health care programs. The period of exclusion will not
be affected by obtaining a license to practice medicine in another state.

CONCLUSION

It is my decision that the I.G. was authorized to exclude Petitioner pursuant to

section 1128(b)(4) of the Act. Additionally, I conclude that the indefinite period of
exclusion imposed by the I.G. is the minimum period mandated by section 1128(c)(3)(E)
of the Act

/s/

Jose A. Anglada
Administrative Law Judge
a e e

C DEPARTMENT OF HEALTH & HUMAN SERVICES Office of the Secretary

Departmental Appeals Board, MS6132

JAN 29 2007 Civil Remedies Division

330 Independence Avenue, S.W.
Cohen Building, Room G-644
Washington, D.C. 20201

CERTIFIED MAIL -- RETURN RECEIPT REQUESTED

William G. Dotzman, D.O.
2392 Oakbend Drive, Apt. 1228
Palm Harbor, Florida 36483

and

Arianne Callender, Esq.

Senior Counsel

Office of Counsel to the Inspector General
330 Independence Avenue, S.W.

Cohen Building, Room 5527

Washington, D.C. 20201

Re: William G. Dotzman, D.O.., Petitioner, v, The
Inspector General.
Docket No. C-06-488
Decision No. CR1560

Dear Mr. Dotzman and Ms. Callender:

Enclosed is your copy of the decision of Administrative Law Judge José A. Anglada in
the above case. If the decision is adverse to you, and you wish to appeal, your appeal
should be sent to the Appellate Division of the Departmental Appeals Board.

In your notice of appeal, you should identify (by number) each finding of fact and
conclusion of law with which you take exception and state why you think the
administrative law judge was wrong, or any other reasons for your appeal. Where your
reasons are supported by the record, you must cite each part of the record that you want
the Board to consider, identifying the document and page number. Also, you must cite
the particular sections or subsections of statutes, regulations, or other authorities on which
you rely. If you are presenting arguments previously relied upon, set them out again in
your brief; it is not enough to incorporate by reference your brief(s) before the judge. Do
not submit exhibits which were submitted to the judge; the record contains all exhibits
which were offered, even if the judge rejected them.

FILE COPY
@ ; @
You will find the procedures for appeal at 42 C.F.R. § 1005.21 (1992). The form, filing
and service of such an appeal should follow the criteria established at 42 C.F.R. §
1005.21 as reflected in the Board’s guidelines (copy enclosed for Petitioner, available
also online at www.hhs.gov/dab/guidelines/procedures.html). If you have any questions,
please call Carolyn Reines-Graubard (her number is (202) 565-0116).

The Appellate Division will notify you that it has received an appeal.

If you are the party filing an appeal, it is your obligation to serve the other party with a
copy of the appeal. 42 C.F.R. § 1005.21(b). If you are the other party, you have 30 days
from receipt of an appeal to submit a brief in opposition. 42 C.F.R. § 1005.21(c).

By direction of the Administrative
Law Judge.

. .

Oliver A. Potts
Chief, Civil Remedies Division

Enclosures

ce: Exclusion Staff
Office of Investigation, OIG
7500 Security Boulevard
Room N2-01-26

Baltimore, Maryland 21244-1850