Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Tri-Valley Family Medicine, Inc.,
(NPI: 1245483759)

Petitioner,
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-10-422
Decision No. CR2179

Date: July 9, 2010

DECISION

Tri-Valley Family Medicine, Inc. (Tri-Valley, Petitioner) appeals the
determination of Palmetto, GBA (Palmetto), a Medicare contractor, that it could
not be enrolled in the Medicare program as a supplier earlier than June 8, 2009.
The Centers for Medicare & Medicaid Services (CMS) filed motions for dismissal
and summary disposition which I deny for the reasons explained below. I proceed
to deny CMS’s motions and decide the case on the written record in favor of CMS.

I. Background

Dr. Lorena H. Tan asserts that, in October 2008, she submitted, through billing
specialists from her prior medical group, an individual application to enroll as part
of Petitioner’s group practice, of which she is the president and medical director,
in the Medicare program. Petitioner (P.) Ex. 7, at 1. On October 20, 2008,
Palmetto returned the application because it was unsigned. P. Ex. 4. Petitioner
submitted a second application in November 2008, which Dr. Tan asserts that she
signed and photocopied and that she ensured that the signed signature page was
included in the envelope for mailing. P. Ex. 7, at 1. That application was also
returned with a letter stating that there was no signature on the required
certification (which constituted section 15 of the CMS-855 application form). P.
Ex. 6. Petitioner further contends that applications were submitted several more
2

times before an application was approved by Palmetto on September 16, 2009
with an effective date of July 8, 2008 when that application had been received at
Palmetto (later modified to a retroactive date of June 8, 2009). P. Br. at 2; CMS
Ex. 6.

Petitioner sought reconsideration requesting that the effective date be changed to
November 1, 2008. CMS Ex. 9. Palmetto denied reconsideration on the grounds
that effective date determinations are not appealable, a position which I reject
below. CMS Ex. 10.

This appeal followed. CMS submitted 11 exhibits; Petitioner initially submitted
eight exhibits and supplemented with three additional exhibits. Neither party
objected to any exhibit or identify any exhibit as “new evidence” subject to the
restrictions of 42 C.F.R. § 498.56(e). I admit all proffered exhibits into evidence.

II. Issues

1. Does Petitioner have a right to a hearing on the determination of the
effective date of its enrollment in Medicare?

2. Is CMS entitled to summary judgment that the assigned effective date is
correct as a matter of law based on undisputed facts?

3. Does the record support an earlier effective date?
Til. Analysis
I. I deny CMS’s motion to dismiss.
a. Standard of review

Pursuant to 42 C.F.R. § 498.70(b), I may dismiss a hearing request in the
circumstance where a party requesting a hearing “does not otherwise have a right
to a hearing.”

b. Discussion

CMS seeks dismissal on the grounds that Petitioner’s July 8, 2009 enrollment
application was accepted and approved and only denials or revocations are
appealable. CMS Br. at 5. CMS acknowledges that this position has met with
mixed results before different administrative law judges (ALJs), but contends that
the appeal rights from unfavorable effective date determinations established by 42
C.F.R. § 498.3(b)(15) should be construed as limited to providers or suppliers
subject to survey and certification requirements. /d. at 6 nn. 3 and 4.
3

Petitioner argues that the granting of an effective date based only on the July 2009
application means that it “can be concluded” that the October 2008 and November
2008 applications were effectively denied. P. Br. at 4-5. Petitioner asserts that it
did not appeal the denials at the time because, until learning of the effective date
determination, Petitioner never received a notice of denial and presumed that the
original filing date (based on the first date of services provided by Petitioner with
the new practice group on November 1, 2008) would still apply. Jd.

CMS argues Petitioner is mistaken in asserting that the date of receipt of its first
application submitted in October 2008 should be the effective date. CMS Reply
Br. at 7. According to CMS, Petitioner erroneously conceives the enrollment
process as a single ongoing process begun in October 2008 and completed in July
2009. Id. Instead, CMS explains, enrollment applications lacking signatures are
“immediately returned to the applicant” and are considered “non-applications.”

Id. at 8, citing Vincent Pirri, M.D., DAB CR2065 (2010). “Logically,” says CMS,
“no appeal rights can attach to non-applications.” Jd. Since the October and
November 2008 applications were returned as unsigned, CMS argues that they did
not constitute denials and were not appealable under the definitions in the
Medicare Program Integrity Manual (MPIM).' Jd. Therefore, CMS concludes
that “Petitioner does not have the right to challenge its effective date based on its
October or November 2008 applications.” Jd.

Both parties misconstrue the regulations. CMS is correct that the enrollment
process is not treated in the regulations as beginning with the first contact with
CMS or its contractor and running continuously until an applicant finally perfects
an application regardless of intervening actions by the contractor — such as
returning, rejecting or denying an application. Furthermore, I do not accept
Petitioner’s theory that the assignment of an effective date based on a later date of

' CMS’s manual distinguishes among denial, rejection and return of applications.
Denial is defined as a determination that an applicant is “ineligible to receive
Medicare billing privileges.” MPIM, Ch. 10, § 1.1. Rejection “means that the
provider or supplier‘s enrollment application was not processed due to incomplete
information or that additional information or corrected information was not
received from the provider or supplier in a timely manner.” Jd. However,
applications by individual physicians or physician practices are not subject to
rejection but rather must be denied when incomplete. Jd. at § 3.1.2. All
applications, however, are returned “immediately” if there is “no signature on the
CMS-855 application.” Jd. at § 3.2A. Rejected and returned applications are not
subject to appeal; denials are appealable. /d. at §§ 3.1.1, 6.2, 19A. CMS explains
the “difference between a ‘rejected’ application and a ‘returned’ application; the
former is based on the provider’s failure to respond to the contractor’s request for
missing or clarifying information. A ‘returned application is considered a non-
application.” Jd. at § 3.2A.

4

filing converts the return of unsigned applications into denials of those
applications that become retrospectively appealable.”

I do not, however, agree with CMS’s view that only a supplier subject to survey
and certification (or accreditation) may challenge an unfavorable effective date
determination. As I have explained in prior decisions, the reasoning of which I
adopt by reference here, the plain language of section 498.3(b)(15) unambiguously
provides appeal rights for suppliers whose applications are approved only as of a
date later than that to which they argue they were entitled, since their applications
were in effect denied during the period before the approval became effective. See,
e.g., Roland J. Pua, M.D., DAB CR2163 (2010); Michael Majette, D.C., DAB CR
2142 (2010); Eugene Rubach, M.D., DAB CR2125 (2010); Mobile Vision, Inc.,
DAB CR2124 (2010). As I noted in those cases, section 424.545(a) provides
appeal rights for denials of supplier enrollment applications by reference to part
498 with no indication of any intent to exclude section 498.3(b)(15).

lam bound by these regulations and therefore cannot dismiss this appeal on the
basis proposed by CMS.

2. I deny CMS’s motion for summary disposition.

a. Applicable standard

CMS’s motion makes clear that the summary disposition which it seeks is in the
nature of summary judgment. The Departmental Appeals Board stated the
standard for summary judgment as follows.

Summary judgment is appropriate when the record shows that there
is no genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. ... The party moving for
summary judgment bears the initial burden of showing that there are
no genuine issues of material fact for trial and that it is entitled to
judgment as a matter of law. ... To defeat an adequately supported
summary judgment motion, the non-moving party may not rely on
the denials in its pleadings or briefs, but must furnish evidence of a
dispute concerning a material fact — a fact that, if proven, would
affect the outcome of the case under governing law. ... In
determining whether there are genuine issues of material fact for
trial, the reviewer must view the evidence in the light most favorable
to the non-moving party, drawing all reasonable inferences in that
party’s favor.

2 As discussed below, however, a factual question remains about whether the
November 2008 application was actually unsigned or was in fact a signed and
complete duplicate of the application that was processed to approval at a later date.
Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations
omitted). The role of an ALJ in deciding a summary judgment motion differs
from the ALJ’s role in resolving a case after a hearing. The ALJ should not assess
credibility or evaluate the weight of conflicting evidence. Holy Cross Village at
Notre Dame, DAB No. 2291, at 4-5 (2009).

b. Applicable regulations

The determination of the effective date of Medicare billing privileges is governed
by 42 C.F.R. §§ 424.520 and 424.521. Section 424.520(d) provides that the
effective date for billing privileges for physician, nonphysician practitioners, and
physician and nonphysician practitioner organizations is “the /ater of the date of
filing of a Medicare enrollment application that was subsequently approved by a
Medicare contractor or the date an enrolled physician or nonphysician practitioner
first began furnishing services at a new practice location.” (Emphasis added).
The “date of filing” is the date that the Medicare contractor “receives” a signed
provider enrollment application that the Medicare contractor is able to process to
approval. 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008). Certain suppliers,
including physicians, may be permitted to bill retrospectively for certain services
provided before approval, if they have met all program requirements. Current
regulations limit retrospective billing to 30 days prior to the effective date, “if
circumstances precluded enrollment in advance of providing services to Medicare
beneficiaries,” or 90 days in certain disaster situations. 42 C.F.R. § 424.521 (a).

c. Discussion

CMS argues that it is entitled to summary judgment because the “undisputed
evidence establishes that CMS did not receive an application from Petitioner that it
could process and approve until July 8, 2009.” CMS Br. at 6. CMS contends
therefore that, as a matter of law, it could not grant an effective date earlier than
June 8, 2009. Id. at 6-7.°

Despite these assertions, CMS acknowledges that Petitioner does dispute whether
the contractor received an earlier application which it could have processed to
approval. Jd at 7. Specifically, Petitioner states that it first submitted an

> Both CMS and the contractor erroneously refer to June 8, 2009 as Petitioner’s
effective date. In fact, the regulations plainly compel the contractor to assign the
date of receipt of the application as the effective date of Petitioner’s enrollment,
while permitting the contractor to grant retroactive billing privileges for 30 days
prior to the effective date. Thus, I treat the contractor’s action as intended to set
June 8, 2009 as the earliest date for which Petitioner may submit claims, with the
effective date of Petitioner’s enrollment as July 8, 2009.
6

application in October 2008 but that Palmetto sent a letter dated October 20, 2008
stating that it could not process the application because there was no signature on
it. P. Br. at 3; P. Ex. 5. Petitioner argues that it then submitted a second
application in November 2008. P. Br. at 3. Petitioner asserts that Dr. Tan signed
the certification statement page (Section 15 of the CMS 8551), dated it November
1, 2008, and made a photocopy of the completed application to preserve it for her
records. P. Br. at 5-6; P. Ex. 7, at 1." Petitioner submits what it alleges is the
contemporaneous photocopy of the signed application submitted in November
2008. P. Ex. 1. Petitioner alleges that, despite these precautions, on November
26, 2008, the contractor again returned the application writing that it did not
include a signature. P. Br. at 3; P. Ex. 6. According to Petitioner, the November
2008 application that was returned to her by the contractor actually had the
signature highlighted with a yellow marker, which she found “unbelievable.” P.
Br. at 6; P. Ex. 2.

Petitioner proffers declarations from Medical Director Lorena H. Tan and Office
Manager Troy A. Kjos who affirm personal knowledge that the November
application contained a signed certification. P. Exs. 7, at 1, and 8, at 1-2.
Petitioner also presents a supplemental declaration from its Business Manager,
Cheong Chuah, who asserts that at the end of 2008 Dr. Tan showed her a
November 26, 2008 letter from Palmetto stating that “the enrollment application
had no signature but the signature was right there on the page with a yellow
highlight over the signature.” P. Ex. 9. The declaration continues that when “Dr.
Tan showed the letter to me, she shook her head in disbelief and was noticeably

* Dr. Tan also reports having checked the completeness of, having signed, and
having arranged for the mailing of additional applications in December 2008 and
February 2009. P. Ex. 7. I do not explore the facts surrounding these applications
further because Petitioner does not offer evidence that either application was
actually received by Palmetto. Petitioner asserts in its brief that an unname
representative of Petitioner spoke to someone at Palmetto “on or around December
20, 2008” who stated that the December application had been received, but then
someone else at Palmetto “on or around January 5, 2009,” and then repeatedly
between January 10 and 31, stated that Palmetto had no record of such an
application. P. Br. at 3-4. These vague statements with no identification of the
parties to the conversations are not supported by any sworn declaration or any
documentation of mailing. Despite the assertion that “[p]hone records can be
subpoenaed,” Petitioner sought no subpoena. /d. at 3. Petitioner acknowledged
not keeping any copy of the December 2008 application. As to the February 2009
application, Petitioner asserts that a copy was kept showing the signed certification
but does not submit any such copy as evidence. Jd. at 4. Petitioner offers no
documentation of mailing and makes no claim of any communication with
Palmetto regarding the February 2009 application.

7

istraught.” Jd. Linda Gross, identified as front office staff, made a similar
eclaration. P. Ex. 11.

CMS disputes Petitioner’s evidence. CMS Br. at 7. CMS submits what it alleges
is the application received by the contractor on November 20, 2008. CMS Ex. 2.
CMS asserts that the section 15 certification is absent from the application (rather
than present but unsigned), and that the application therefore could not have been
processed to approval because the certification statement is crucial to ensure the
supplier’s commitment to abide by applicable Medicare law. CMS Br. at 7. CMS
further suggests that the signed, highlighted section 15 included in Petitioner’s
Exhibit 2 was not actually received and returned by the contractor because it is not
late-stamped in the same manner as the rest of the pages of that application. Jd.

at 8.

It is evident that the parties do dispute the facts relating to whether the November
2008 application received by the contractor was signed and complete and could
have been processed to approval (or, put another way, was the same application
that ultimately was processed to approval). Petitioner asserts that the contractor
returned to her (and hence, had received) the November application including a
signed certification statement and that the application was in every other way
complete and approvable. CMS does not assert that the application was defective
in any way other than the disputed omission of the signed certification statement.
CMS does not deny that the November 2008 application was in every other
respect identical to the July 2009 application.

CMS does not deny that this fact is material. In fact, CMS states that it simply
“could not grant Petitioner an effective date based on the application” received on
November 20, 2008 because “the evidence establishes” that it “was incomplete.”
CMS Br. at 8. It follows that, if the contrary evidence that the application was
received complete with the signed certification in section 15 were accepted, then
the earlier effective date would be appropriate.

In resolving a summary judgment motion, I do not weigh the relative
persuasiveness or strength of the evidence presented by the parties on a disputed
issue of material fact. I am, instead, instructed to view all evidence in the light
most favorable to the non-movant and to draw all reasonable inferences in the
non-movant’s favor. Applying that standard, I find that a reasonable finder-of-fact
could conclude that a complete and approvable application was submitted in
November 2008 that could support an earlier effective date. (I do not make such a
finding here; I only acknowledge that the record does not make such a finding
beyond reason.) Consequently, I cannot find that CMS is entitled to summary
judgment as a matter of law.

I therefore deny CMS’s motion for summary disposition.
8

3. I conclude that, on the record before me, the regulations support an
effective date of July 8, 2008.

a. Lcan resolve the merits without further proceedings.

Having resolved the outstanding dispositive motions, I turn to the question of
whether further proceedings are needed to decide the case on the merits. The Pre-
Hearing Order (PHO) required all parties to “exchange as a proposed exhibit the
complete written direct testimony of any proposed witness” which would then
generally serve as their “statement in lieu of in-person testimony.” PHO at 3. An
in-person hearing would be held to cross-examine witnesses only if admissible
written direct testimony was submitted and cross-examination was requested. Id.

Neither party raised any objection to this process or requested any exception. On
April 26, 2010, CMS submitted its motions to dismiss and for summary judgment,
accompanied by its 11 exhibits and a witness list identifying a single witness
(Connor Beck, a CMS analyst overseeing Palmetto). CMS did not submit any
declaration or written direct testimony for Beck among its exhibits. Petitioner
initially submitted its proposed exhibits on May 27, 2010 including the
declarations from Tan and Kjos. Petitioner also included a witness list identifying
3 additional witnesses (Chuah, Gross, and Kerry Wheat/Darling, identified as
Petitioner’s current billing specialist), but failed to produce written direct
testimony for the latter 3 proposed witnesses.

Through a staff attorney, I informed the parties on June 7, 2010 that neither of
their submissions was in compliance with the Pre-Hearing Order. I permitted the
parties a further opportunity to supplement their submissions with the written
direct testimony for any proposed witness and ordered them to identify any
witness of the opposing party whose cross-examination they sought. Petitioner
submitted written declarations for the three remaining named witnesses.

P. Exs. 9-11.

By e-mail correspondence dated June 10, 2010, CMS withdrew its witness list
(while reserving the possibility of calling Mr. Beck as a rebuttal witness in the
event of an in-person hearing). CMS also requested an opportunity to file a reply
brief, which was granted. CMS’s reply brief was dated June 21, 2010. CMS did
not challenge the admissibility of the declarations provided by Petitioner or seek to
cross-examine any of Petitioner’s witnesses.

Since neither party seeks cross-examination, I find no need or purpose to
convening an in-person hearing. I therefore proceed to consider the merits of the
case based on the written record before me.
9

b. Icannot assign an effective date that is not in accord with legal
requirements based on equitable arguments.

Petitioner argues that “it is likely that [CMS] made errors in processing
Petitioner’s applications,” citing the history of its multiple applications and
various confusing communications with Palmetto staff. P. Br. at 5-9. For that
reason in itself, Petitioner asserts, it should be granted the earlier effective date
that it requested. Id. at 9.

CMS contends that “delays in granting effective dates that were allegedly caused
by CMS’s contractors’ actions cannot serve as a basis for granting . . . an effective
ate earlier than the effective date that a provider or supplier is entitled to based on
e enrollment regulations.” CMS Reply Br. at 3. To rely on such factors would,
cording to CMS, amount to equitable relief beyond my authority. Id.

eg

Petitioner also suggests that it has a “cause of action for restitution” of unjust
enrichment. P. Br. at 10. Petitioner asserts that, after Dr. Tan started Tri-Valley,
she continued to treat Medicare patients whom she had previously seen while
practicing with 2 other medical groups in order to ensure the continuity of patient
care. Jd. Petitioner argues that, had she not treated these patients from November
1, 2008 (when Tri-Valley started) to June 8, 2009 (when its enrollment became
effective), CMS would have had to pay as much or more for their treatment
elsewhere. /d. at 10-11. Hence, according to Petitioner, CMS should not be
unjustly enriched by obtaining the medical services without paying for their value
when Petitioner bore no fault for the delay in enrolling Petitioner. CMS does not
directly respond to this argument, but it is at core another plea for equitable relief.

lagree with CMS that I have no general mandate to grant equitable relief, but am,
instead, bound by applicable law and regulations. Further, to the extent that
Petitioner seeks to use delays or miscommunication by the contractor to obtain an
effective date earlier than that provided by law, such arguments seek equitable
estoppel against the federal government, which, if available at all, is presumably
unavailable absent “affirmative misconduct,” such as fraud. See, e.g., Pacific
Islander Council of Leaders, DAB No. 2091 (2007); Office of Personnel
Management v. Richmond, 496 U.S. 414, 421 (1990). No such allegations are
made here.

The proper question before me is not whether contractor error or delay justify an
effective date earlier than supported by the application of the governing law to the
facts as proven. Rather, the question which I must resolve is what effective date is
appropriate under the governing law applied to the facts as I find them.
10

c. The effective date depends on the first date on which a complete
application is submitted that can be processed to approval.

I first consider as a matter of law what Petitioner must show in order to
demonstrate that she is entitled to an earlier effective date under the regulations.
Section 424.520(d), as quoted above, refers to the date of filing of an application
“that was subsequently approved by a Medicare contractor” as the touchstone for
determining the appropriate effective date. This language might be interpreted to
mean that the effective date must be the date on which the contractor received the
actual application which it approved. CMS does not adopt this interpretation
before me. As I mentioned above, CMS did not argue that it was irrelevant
whether the same application (including the necessary signature section) was
submitted on a previous date.

The regulatory language is also susceptible of an interpretation that the effective
date would be the date on which a complete application is first received which is
subsequently processed to approval (even if duplicate copies of the application
have to be submitted in the interim). The latter construction is consistent with the
position CMS took here and with the explanation in the preamble to the final rule:

Comment: One commenter urged CMS to adopt a standard
establishing that the filing date for an enrollment application is when
a signed application is first received by a contractor and not when
the application is deemed complete and ready for approval by that
contractor. Otherwise, delays associated with contractor processing
could become a larger concern.

Response: We agree with this commenter and have adopted the
“date of filing” as the date that the Medicare contractor receives a
signed provider enrollment application that the Medicare contractor
is able to process to approval.

73 Fed. Reg. at 69,769 (emphasis added). The emphasis thus appears to be on
when the contractor first received an approvable application. This explanation is
consistent with the interpretation that the receipt of a signed, fully complete
application by a contractor triggers the effective date, which would not be defeated

> CMS also makes clear in the preamble that, where an application is received that
is not yet complete, the contractor generally permits an applicant to provide
missing information or cure other technicalities and deficiencies within 30 days
before an application is denied, and that, if the application is made complete in the
process, then the effective date remains the date on which it was submitted since
the contractor has been able to process it to approval ultimately. 73 Fed. Reg. at
69,769.
ll

by subsequent filing of additional copies of the application.° Thus, contractor
errors in subsequently misplacing an application or delaying its processing would
not affect the effective date, while supplier failures to submit applications capable
of being approved would not benefit them by locking in an effective date even
though they were not eligible for approval at the time of that initial filing.

I therefore conclude that I must resolve the disputed question of fact as to whether
a complete signed application was received by Palmetto in November 2008 that
was approvable since it was identical to the one which was resubmitted and
processed to ultimate approval in July 2009.

d. I find that Petitioner has not shown that Palmetto received a
signed complete approvable application prior to July 2009.

The factual question at the heart of this appeal thus is whether the Medicare
enrollment application from Petitioner which Palmetto received on November 20,
2008 contained a signed certification statement. At this point, in contrast to my
role in deciding CMS’s motion for summary disposition, I am obliged to evaluate
the persuasiveness and credibility of and assign appropriate weight to the
competing evidence proffered by the parties on this question. I must determine
whether Petitioner has established by the preponderance of the evidence that it is
entitled to an earlier effective date than that assigned to it by CMS.

I have already discussed the evidence above in concluding that a material dispute
of fact existed. To recap, Petitioner presents the sworn declaration of Dr. Tan that
she signed the certification statement page for this application on November 1,
2008. P. Ex. 7, at 1; P. Ex. 1. This testimony is backed up by that of the office
manager who says he saw her sign it. P. Ex. 8, at 1. Petitioner also submits a
copy of the application which includes the signed page. P. Ex. 1, at 27.

Petitioner also provides evidence that Dr. Tan was “distraught” when the
application was returned with a letter from Palmetto dated November 26, 2008
stating that it was unsigned. P. Ex. 7, at 1; P. Ex. 6. Two office staff members
affirm that Dr. Tan showed them the letter and a page with the signature

® T note that this situation differs from the many cases in which suppliers allege
that they have submitted applications multiple times which were either lost or
erroneously rejected but do not proffer proof that a contractor actually received an
earlier complete application that was approvable as received. See, e.g., Arkady
Stern, DAB CR2078 (2010). Here, CMS does not dispute the receipt of the
application on November 20, 2009 and Petitioner proffers both physical and
testimonial evidence as to the inclusion in that application of the signature section.
I do not imply here that that evidence is necessarily persuasive (an issue I resolve
later in this decision) but only that the Petitioner here placed at issue what was not
adequately placed at issue in the earlier cases cited.
12

highlighted in yellow and describe her as shaking her head “‘in disbelief” (P. Ex. 9,
at 1) and “very frustrated with Medicare” (P. Ex. 11, at 1). Petitioner submitted
the certification statement page with yellow highlighter in the signature box and
Dr. Tan’s signature. P. Ex. 2.

have found this sufficient to put at issue the question of whether the application
received by Palmetto on November 20, 2008 included a signed certification page.
further credit the claims by Dr. Tan, corroborated by her office manager who
asserts he personally witnessed it, that she signed a certification page dated
November 1, 2008 which was included when a copy of the application was made
‘or the office to retain. Dr. Tan also asserts, however, that she personally “again
made sure that the signed signature page was included in the envelope” before she
sent the application. P. Ex. 7, at 1. Mr. Kjos does not claim personal knowledge
to corroborate this claim as he did with the signing of the application, nor does any
other witness for Petitioner. P. Ex. 8, at 1.

I must therefore consider whether the signed certification page was included in the
application when Palmetto received it. On this point, CMS provides a copy of
what it contends is the application as it was received on November 20, 2008. On
each page of this application, a code is marked on the upper left corner which
CMS asserts was affixed by Palmetto.’ CMS Ex. 2. CMS explains the
significance of the code in its brief by reference to the marking on the first page
which reads D 08326111200011 08325 p001. CMS Br. at 2 n.1; CMS Ex. 2, at 1.
The first number string represents a number assigned to Dr. Tan which also
appears in Palmetto’s correspondence with her. See, e.g., CMS Ex. 3. The second
string represents the date of receipt expressed using the Julian calendar which
CMS provides in an exhibit. CMS Br. at 2 n.1; CMS Ex. 11, at 2. Thus, 08
represents 2008 and 325 represents the 325" day, i.e. November 20". CMS points
out that the signed certification page which Petitioner claims to have received back
with its returned November 2008 application has no code marking on it. CMS Br.
at 8. Therefore, CMS contends that it must not have been part of the application
returned by Palmetto. Id.

I find this argument compelling. A careful review of the application at CMS
Exhibit 2 shows that the numerical markings are consecutive from page | through
page 50. The application does not contain two pre-printed pages of the form (at
pages 25 and 26) which correspond to the missing certification statement section.
The markings affixed by Palmetto on receipt do not have a two-page break in
numbering which strongly suggests to me that the pages of the form were not
included in the package at the time Palmetto received it.

7 CMS requires all its contractors to date-stamp incoming correspondence to show
the date of receipt. MPIM, ch. 10, § 2.3.
13

Petitioner contends that the fact that the signature page in its copy of the
November 2008 application made before mailing does not have yellow
highlighting whereas the page which Petitioner says was included in the returned
application should demonstrate that “the copy was made before the highlighted
mark was applied.” P. Br. at 6; compare P. Ex. 1, at 27 with P. Ex. 3. L agree that
this evidence can support an inference that yellow highlighting was not on the
application at the time Petitioner photocopied it. I do not find that the evidence
proves that the certification pages were included in the envelope when it was
mailed.

CMS’s position is not that Palmetto received an unsigned certification but rather
that section 15 (the two-page section containing the certification which must be
signed) was omitted altogether. The yellow highlighting could have been applied
to a copy of the signature page after Palmetto returned the application. While
Petitioner submitted declarations witnessing to Dr. Tan’s frustration and distress
when Medicare again returned her application as lacking the signed certification, it
submitted no evidence as to who opened the package returning the application or
as to anyone else witnessing that the signed highlighted page was contained in the
package as it came from Palmetto. P. Exs. 9 and 11. Instead, both witnesses
speak of Dr. Tan showing them the highlighted signature.

Petitioner suggests that Palmetto’s date-stamping was “unreliable and flawed”
because CMS did not produce Petitioner’s October 2008 application which
Palmetto admitted receiving but claimed was also not signed. P. Br. at 7.
Petitioner argues that CMS did not prove that the October 2008 application was
unsigned. Jd. CMS responds that the October 2008 application was irrelevant
because Petitioner did not dispute that it was not signed. CMS Reply. Br. at 5.
This is not quite accurate, since Petitioner did submit a declaration that the
October 2008 application was signed but did not offer a copy of that application.
P. Br. at 3; P. Ex. 7, at 1. Petitioner did not request a copy of the October 2008
from Palmetto or CMS and does not explain why CMS was obligated to submit a
copy for the record. In any case, I fail to see how the absence of another
application in the record proves the unreliability of Palmetto’s date-stamping
practices. What I find a more telling omission is the failure of Petitioner to
produce the full application returned to it by Palmetto rather than the single

* Petitioner also points out that all the pages of the copy which it retained of the

November 2008 application have a “consistent streak (line) across the pages
because Petitioner’s photocopy machine at that time needed to be cleaned.” P. Br.
at 6; P. Ex. 1. The signed certification page with the signature highlighted in
yellow does not contain the same streak. P. Ex. 2. I am not persuaded that this
difference proves that the copy with the yellow highlighting comes from the
original application returned by Palmetto. There are many ways in which the
streak could be easily removed or be faded out of sight in making and highlighting
another copy of the page at issue from the copy retained by Petitioner.

14

disputed page on which it relies. I find it more credible that the complete,
consecutively date-stamped copy in CMS’s exhibits accurately reflects what was
received by the contractor than that the single page with yellow highlighter
markings but no date-stamp was part of the application as received.

Petitioner further points to presence of a date-stamp reading D 08326111200011
08325 p000 on CMS Exhibit 1, which is the letter from Palmetto to Petitioner
dated October 20, 2008 returning the October 2008 application as unsigned. P. Br.
at 7-8. Petitioner acknowledges that Palmetto “did date stamp the second
enrollment application as November 20, 2008,” but then questions why a letter
issued on October 20, 2008 would have the same Julian date stamped on it. Jd.
Petitioner submits its own copy of the October 20, 2008 letter with the same date
stamp on it and contends that this reasoning should undercut the date-stamping
process. P. Ex. 5; P. Br. at 8.

CMS responds that the October 20, 2008 letter was included by Petitioner when it
resubmitted its application in November 2008 and therefore received a date-stamp
showing its receipt along with the rest of the package. CMS Reply Br. at 5. As
CMS points out, the letter was number as page 000 and the application proper
begins on page 001. Jd.; CMS Exs. | and 2, at 1. I find this explanation plausible.

I further note that Petitioner’s possession of the date-stamped copy of the October
20, 2008 Palmetto letter further persuades me that Petitioner did receive a date-
stamped copy of the returned November 2008 application but has not produced
that copy to me. | infer that that copy does not contain a signed certification
section and that the signed highlighted certification section which Petitioner
produced was not part of the application received by Palmetto on November 20,
2008.

Given the evidence before me, to accept Petitioner’s position would require me to
believe that Palmetto received a complete application on November 20, 2008
including a signed certification section. Palmetto then removed the two-page
section from the middle of the application before date-stamping the remaining
pages in numerical order.’ Palmetto then highlighted the signature on the
certification in yellow, bundled it back with the remaining date-stamped pages,
and returned the whole to Petitioner with a letter stating that the application was
not signed. I have no doubt that contractors make errors in receiving, tracking and
processing Medicare enrollment applications. The scenario that would have to
have occurred to support Petitioner’s version of events, given the documentation

° Such a procedure would be inconsistent with CMS’s requirements for
contractors handling incoming applications which call for date-stamping the pages
of all correspondence in the mailroom on the day received before forwarding it to
enrollment staff who would conduct a prescreening review of the contents.
MPIM, ch. 10, §§ 1.3, 2.9.3, 3.

15

in the record, however, requires Palmetto staff to have intervened actively to
tamper with the application before applying a date-stamp to the package, to place
yellow highlighting on the signature and then to return the application specifically
denying the existence of the pages on which it placed the highlighting. Petitioner
itself refers to this as “unbelievable,” and I agree. P. Br. at 6.

It is difficult to discern any possible motivation for Palmetto staff to undertake
such conduct. By contrast, it is not difficult to comprehend how Dr. Tan might be
motivated to remember events in a light more favorable than accurate, given that
Petitioner presents evidence that claims for payment in the amount of $78,423.84
to Dr. Tan depend on the question of when Palmetto received a signed complete
application. See P. Ex. 10, at 2.

Based on these considerations, I find it more likely than not that Petitioner’s
application as received by Palmetto in November 2008 did not contain a signed
certification section. I conclude that Petitioner has not shown that a signed
complete approvable application was received by the contractor prior to July 8,
2009. I therefore conclude that Petitioner is not entitled to an effective date earlier
than July 8, 2009 or to bill for services prior to June 8, 2009 since CMS granted a
30-day retroactive billing period.

IV. Conclusion

For the reasons explained above, I conclude that CMS correctly determined the
effective date of approval of Petitioner’s enrollment in Medicare.

/s/

Leslie A. Sussan
Board Member


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Emmanuel Uko Akpan
(OI: 6-03-40688-9),
Petitioner
Vv.

The Inspector General.
Docket No. C-10-340
Decision No. CR2178

Date: July 8, 2010

DECISION

Petitioner, Emmanuel Uko Akpan, asks review of the Inspector General’s (I.G.’s)
determination to exclude him for twenty years from participation in the Medicare,
Medicaid, and all federal health care programs under section 1128(a)(1) of the Social
Security Act (Act). For the reasons discussed below, I find that the LG. is authorized to
exclude Petitioner and that the imposition of a twenty-year exclusion is reasonable.

I. Background

Petitioner owned and operated a durable medical equipment supply business in Dallas,
Texas. In that capacity, he fraudulently billed the Medicare program for power
wheelchairs and accessories. 1.G. Exhibit (Ex.) 2 at 2. He was convicted in federal
district court of felony health care fraud and for conducting an illegal financial
transaction.

In a letter dated December 31, 2009, the I.G. advised Petitioner that, because he was
convicted of a criminal offense related to the delivery of an item or service under the
Medicare or state health care program, the I.G. was excluding him from participation in
Medicare, Medicaid, and all federal health care programs for a period of twenty years.
Section 1128(a)(1) of the Act authorizes such exclusion.

The I.G. indicates that an in-person hearing is not necessary in this case. I.G. Br. at 6-7.
The I.G. has submitted its brief (1.G. Br.), a reply brief, and five exhibits (1.G. Exs. 1-5).

In an order dated March 17, 2010, I directed Petitioner to complete and submit a “short-
form brief,” answering specific questions, including whether an in-person hearing is
necessary, and, if so, directing him to: (1) name each witness whose testimony he wants
to offer; (2) describe that testimony and explain why it relates to his arguments; and (3)
explain why that testimony is not duplicative.' Petitioner did not respond to the specific
questions on the short-form brief, but instead submitted the following documents: 1) a
brief opposing summary judgment and demanding discovery (P. Br.);? 2) a motion to
strike the exhibits attached to the I.G.’s brief (P. M/Strike); 3) a document titled
“Petitioner’s Affidavit of the Court’s Bias and Prejudice Pursuant to 28 U.S.C.

§ 144”; and 4) a motion to recuse. With these documents, Petitioner submitted two
“attachments,” which we have marked P. Exs. 1-2. Petitioner has also submitted a
motion for leave to file a sur-reply and the sur-reply itself.

IL. Issues
Although Petitioner raises a wide range of issues here, I am authorized to consider only:

1) whether the I.G. has a basis for excluding Petitioner from program participation; and
2) if so, whether the twenty-year exclusion falls within a reasonable range.

' While the short-form brief directs the party to answer specific questions targeted to the
issues presented in this case, it also affords him the opportunity to present any additional
arguments.

> Petitioner captions this submission “Petitioner’s Motion and Affidavit to Stay
Consideration Opposing Informal Brief of Inspector General for Dismissal or Summary
Judgment Pursuant to Fed. R. Civ. P. 56(f).”

* I do not list every motion and objection that Petitioner filed, but all of his submissions
are included in the record file.

+ Petitioner moves for discovery. But, the regulations limit discovery to documents that
are “relevant and material.” 42 C.F.R. § 1005.7. Petitioner has not shown how discovery
would produce documents that are “relevant and material.” Petitioner also complains
bitterly — indeed, he alleges bias and prejudice and demands that I recuse myself —
because I declined to appoint, at government expense, an attorney to represent him in
these proceedings. As set forth in my orders of February 17 and March 17, 2010, I
simply have no authority to appoint counsel to represent him.

II. Discussion

A, Petitioner must be excluded, because he was convicted of
a criminal offense related to the delivery of an item or
service under the Medicare or a state health program,
within the meaning of section 1128(a)(1) of the Social
Security Act. 5

Section 1128(a)(1) of the Act requires that the Secretary of Health and Human Services
exclude an individual who has been convicted under federal or state law of a criminal
offense related to the delivery of an item or service under Medicare or a state health care
program. 42 C.F.R. § 1001.101.

In April 2004, Petitioner admitted his guilt to: 1) “knowingly and willfully” executing a
scheme to defraud the Medicare program, in violation of “18 U.S.C. §§ 1347 & 24 and
2”; and 2) “knowingly” conducting a financial transaction of more than $10,000
“involv[ing] the proceeds of a specified unlawful activity, namely, health care fraud,” in
violation of 18 U.S.C. § 1957(a). LG. Ex. 2. According to Petitioner, he formally
entered his guilty plea in district court on May 17, 2004. P. Br. at 3.

On June 30, 2009, the Federal District Court for the Northern District of Texas entered
judgment against him, sentenced him to a five-year prison term, and ordered him to pay
restitution of $710,000 to the Centers for Medicare and Medicaid Services, which is the
agency that administers the Medicare program. I.G. Ex. 1. Neither party has explained
the long delay between the date Petitioner pled guilty and the date the court entered a
judgment against him.

Nevertheless, the parties agree that Petitioner was convicted of defrauding the Medicare
program. He is therefore subject to exclusion under section 1128(a)(1).

Petitioner nevertheless claims that he has “always maintained his innocence,” and
complains that his criminal defense attorney refused to withdraw his guilty plea. He
therefore filed his own motion to withdraw, but, after a February 2005 hearing, the
federal district court denied his motion. Petitioner has appealed his conviction, and,
according to Petitioner, that appeal is currently pending before the Fifth Circuit. P.
Motion to Recuse at 2-3.

Federal regulations explicitly preclude any collateral attack on Petitioner’s conviction.

When the exclusion is based on the existence of a criminal
conviction . .. where the facts were adjudicated and a final

* My findings of fact/conclusions of law are set forth, in italics and bold, in the
discussion captions of this decision.
decision was made, the basis for the underlying conviction . .
. is not reviewable and the individual or entity may not
collaterally attack it, either on substantive or procedural
grounds, in this appeal.

42 C.F.R. § 1001.2007(d); Joann Fletcher Cash, DAB No. 1725 (2000); Chander
Kachoria, R.Ph., DAB No. 1380 at 8 (1993) (“There is no reason to ‘unnecessarily
encumber the exclusion process’ with efforts to reexamine the fairness of state
convictions.”); Young Moon, M.D., DAB CR1572 (2007).

Further, the Act specifically provides that a pending appeal is irrelevant to whether an
individual has been convicted, within the meaning of the Act. “[A]n individual . . . is
considered to have been ‘convicted’ of a criminal offense . . . regardless of whether there
is an appeal pending... .” Act § 1128(i)(1).

B. Based on the aggravating factors presented in this case,
the twenty-year exclusion is reasonable.

An exclusion under section 1128(a)(1) must be for a minimum period of five years. Act
§ 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2). Federal regulations set
forth criteria for lengthening exclusions beyond the five-year minimum. 42 C.F.R.

§ 1001.102(b). Evidence that does not pertain to one of the aggravating or mitigating
factors listed in the regulations may not be used to decide whether an exclusion of a
particular length is reasonable.

Among the factors that may serve as bases for lengthening the period of exclusion are: 1)
the acts resulting in the conviction, or similar acts, resulted in a financial loss to Medicare
and state health care programs of $5,000 or more; 2) the acts that resulted in the
conviction, or similar acts, were committed over a period of one year or more; 3) the
sentence that the court imposed included incarceration; and 4) the convicted individual or
entity has a prior criminal record. 42 C.F.R. § 1001.102(b). The presence of an
aggravating factor, or factors not offset by any mitigating factor or factors, justifies
lengthening the mandatory period of exclusion.

Here, at least four aggravating factors justify significantly increasing the period of
exclusion beyond the five-year minimum:°

Financial loss to Medicare (42 C.F.R. § 1001.102(b)(1)). Petitioner’s actions resulted in
a program financial loss well in excess of $5,000. The district court ordered him to pay
$710,000 in restitution to the Medicare program, and restitution has long been considered

° The LG. does not rely on another potentially aggravating factor -- that Medicare
overpaid the individual $1,500 or more as a result of intentional improper billings. 42
C.F.R. § 1001.201(b)(7).
a reasonable measure of program losses. I.G. Ex. | at 5. Jason Hollady, M.D., DAB No.
1855 (2002). Indeed, the Departmental Appeals Board (Board) has characterized
restitution in an amount so substantially greater than the standard as an “exceptional|[ly]
aggravating factor” that is entitled to significant weight. Jeremy Robinson, DAB No.
1905 (2004); Donald A. Burstein, Ph.D., DAB No. 1865 (2003).

Duration of crime (42 C.F.R. § 1001.102(b)(2)). For more than a year, Petitioner
engaged in the acts that resulted in his conviction. In his plea agreement, Petitioner
admitted that he began submitting fraudulent claims in March 2002 and continued his
illegal conduct through July 2003. I.G. Ex. 2 at 3.

Incarceration (42 C.F.R. § 1001.102(b)(5)). The criminal court imposed a sentence that
included a significant period of incarceration. Petitioner was sentenced to five years in

prison, which is significant jail time, and underscores the seriousness of his crimes. I.G.
Ex. | at 2.

Criminal sanction record (42 C.F.R. § 1001.102(b)(6)). The June 2009 felony conviction
was not Petitioner’s first. In March 1997, he pled guilty to one felony count of making a
alse statement in the acquisition of a passport, and aiding and abetting, in violation of 18
U.S.C. § 1542 and 2. I.G. Ex. 3. Notwithstanding this earlier conviction, Petitioner
denies any “criminal sanction record,” arguing that his earlier conviction “does not
satisfy the regulatory requirement for consideration as an aggravating factor.” P. Br. at 3.
Petitioner does not further explain why a felony conviction would not be considered a
“criminal sanction.”

Nothing in the plain language of 42 C.F.R. § 1001.102(b)(6) limits its reach to situations
involving exclusions or other program-related penalties.’ Indeed, such qualifying
language would make the provision redundant. Section 1001.102(b)(8) includes, as an
aggravating factor, convictions for criminal offenses “involving the same or similar
circumstances.” (Emphasis added). Section 1001.102(b)(9) includes, as an aggravating
factor, convictions for “other offenses besides those which formed the basis for the
exclusion” as well as “other adverse action. . . based on the same set of circumstances
that serves as the basis for imposition of the exclusion.” | interpret this section to cover
contemporaneous convictions, but not necessarily the individual’s criminal history.

The drafters of the regulation thus recognized that individuals with additional criminal
convictions are inherently less reliable and so authorized the I.G. to consider aggravating
all criminal convictions, whether contemporaneous or past, exclusion-related or not. In
this way, the regulation furthers the statutory and regulatory purpose of protecting federal

7 Tf Petitioner’s earlier crime had been subject to exclusion under section 1128, he may
have been subject here to a significantly longer period of exclusion, since the statutory
minimum for those previously excluded is ten years, rather than five. Act

§ 1128(c)(3)(G).
health care programs from those who have shown themselves to be untrustworthy. Any
individual with repeated felony convictions for crimes based on fraud is simply not to be
trusted.

Petitioner’s significant history of felonious fraudulent conduct heightens the risk that he
poses to program integrity. I would sustain a twenty-year exclusion based on this factor
alone.

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

The regulations consider mitigating just three factors: 1) a petitioner was convicted of
three or fewer misdemeanor offenses, and the resulting financial loss to the program was
less than $1,500; 2) the record in the criminal proceedings demonstrates that a petitioner
had a mental, physical, or emotional condition that reduced his culpability; and 3) a
petitioner’s cooperation with federal or state officials resulted in others being convicted
or excluded, or additional cases being investigated, or a civil money penalty being
imposed. 42 C.F.R. § 1001.102(c) (emphasis added). Characterizing the mitigating
factor as “‘in the nature of an affirmative defense,” the Board has ruled that Petitioner has
the burden of proving any mitigating factor by a preponderance of the evidence. Barry
D. Garfinkel, M.D., DAB No. 1572 at 8 (1996).

Obviously, because Petitioner’s felony conviction involved program financial losses
many times greater than $1,500, the first factor does not apply here. Nor does Petitioner
claim that he suffered any condition that reduced his culpability nor that he cooperated
with government officials.

Petitioner nevertheless lists seven factors, which he characterizes as “mitigating.” P. Br.
at 3-4. These include revocation of his supplier number, loss of earnings, and
government seizure of his property. None of these are mitigating.

Petitioner also claims, without any support, that he was, in fact, excluded over six years
ago. According to Petitioner, after he entered his guilty plea, a government agent told
him that he was automatically excluded and sent him a copy of the exclusion rules. P. Br.
at 2-3. I accept this as true for purposes of resolving this case, but I do not find it
material. That a government employee advised him of, and sent him the rules governing,
mandatory exclusions does not mean that the I.G. excluded him any earlier than January
2010, as set forth in the I.G.’s December 31, 2009 notice letter. Indeed, he could not
have been excluded prior to the date of his conviction, June 30, 2009.

Moreover, all of the evidence in this record establishes that Petitioner was excluded
effective January 20, 2010. By letter dated July 17, 2009, the I.G. notified Petitioner that
he would be excluded and invited him to submit any information he wanted the I.G. to
consider in determining the period of exclusion. I.G. Ex. 5 at 1-2. Petitioner responded
by letter dated July 20, 2009, in which he said only that his conviction was under appeal.
He did not then mention any earlier exclusion. 1.G. Ex. 5 at 3-4.

IV. Conclusion

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

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Anton Heins III, M.D.,
Petitioner
Vv.
The Inspector General.
Docket No. C-10-579
Decision No. CR2174

Date: July 07, 2010

DECISION

I sustain the determination of the Inspector General (1.G.) to exclude Petitioner, Anton
Heins III, M.D., from participating in Medicare and other federally funded health care
programs for at least five years.

I. Background

Petitioner is a physician. The I.G. determined to exclude Petitioner from participating in
Medicare and other federally funded health care programs for a period of at least five
years. The LG. determined that Petitioner had been convicted of a criminal offense
within the meaning of section 1128(a)(1) of the Social Security Act (Act). Petitioner
requested a hearing, and the case was assigned to me for a hearing and a decision.

I directed the parties to file briefs and proposed exhibits. The I.G. filed a brief and two
proposed exhibits (I.G. Ex.1 —1.G. Ex. 2). Petitioner filed a brief and no proposed
exhibits. Neither the I.G. nor Petitioner requested that I convene an in-person hearing.

I receive into evidence I.G. Ex. 1 and LG. Ex. 2.
IL. Issues, Findings of Fact and Conclusions of Law
A. Issues
The issues are whether:

1. Petitioner was convicted of a criminal offense as is described at section
1128(a)(1) of the Act; and

2. An exclusion of five years is mandatory.
B. Findings of Fact and Conclusions of Law
I make the following findings of fact and conclusions of law.

1. Petitioner was convicted of a criminal offense as is described at
section 1128(a)(1) of the Act.

Section 1128(a)(1) of the Act mandates the I.G. to exclude any individual who is
convicted of a criminal offense related to the delivery of an item or service under
Medicare or a State Medicaid program. The facts of this case unequivocally establish
that Petitioner was convicted of such an offense.

On August 25, 2009, Petitioner pled guilty in New Hampshire Superior Court to the
misdemeanor offense of Unsworn Falsification. I.G. Ex. 1 at 1. Specifically, Petitioner
pled guilty to the following charge:

with a purpose to deceive a public servant in the performance of his or her
official function, . . . [Petitioner] submitted a claim for reimbursement to
the [New Hampshire] Medicaid program for the initial evaluation of a client
when the client had already paid him in full, causing him to receive a
Medicaid payment to which he was not entitled.

Td. at 2; 1.G. Ex. 2 at 3-4. Petitioner’s conviction was for a crime that is related to an item
or service under the New Hampshire Medicaid program. Effectively, Petitioner pled
guilty to demanding reimbursement from that program for a service, which was not
reimbursable by that program. It was related to a Medicaid item or service, because the
claim was based on a medical service that was provided to a program recipient that would
have been reimbursable by Medicaid but for the fact that the recipient had already paid
him for that service. Petitioner’s crime, then, constituted a form of fraud against the New
Hampshire Medicaid program.
Petitioner argues that his crime was unrelated to the delivery of an item or service under
Medicaid, because fraud against Medicaid was not a necessary fact of his conviction. He
argues that the crime of which he was convicted was a generic offense, which makes it
unlawful to willfully utter a false statement to any government agency without regard to
the function of the agency or the program that the agency administers. Consequently,
according to Petitioner, he was not convicted of uttering a false statement to the New
Hampshire Medicaid program, but merely of uttering a false statement to a government
agency.

This argument is unpersuasive. It ignores the obvious. Petitioner’s crime is a program
related offense within the meaning of section 1128(a)(1) of the Act, even if the State
statute pursuant to which he was convicted is a generic criminal section not specifically
directed at Medicaid fraud. Petitioner was specifically charged with, and convicted of,
filing a false Medicaid claim.

2, An exclusion of five years is mandatory.

An exclusion imposed pursuant to section 1128(a)(1) must be for at least five years. Act
§ 1128(c)(3)(B). Petitioner’s five year exclusion is reasonable as a matter of law,
because it is for the mandatory minimum period.

/s/
Steven T. Kessel
Administrative Law Judge