Department of Health and Human Services
Departmental Grant Appeals Board

Office of Hearings for Civil Money Penalties

In the Case of: DATE: MAY 27, 1986

The Inspector General

-v- Docket No. C-12

Narenda Khurana, M.D., DECISION # CR7

Respondent

CLARIFICATION
OF
DECISION OF ADMINISTRATIVE LAW JUDGE

By motion dated May 13, 1986, the Inspector General (I.G.)
requested that my Decision of March 14, 1986 be clarified to
specify that the requirements which I imposed as conditions for
the Respondent's suspension being seven (7) years and one (1) day,
(rather than the ten (10) years imposed by the Inspector General)
are in addition to the requirements for reinstatement set out in
the regulations at 42 C.F.R. §420.130. This Office made several
attempts to set up a telephone conference with the parties, but
counsel for the Respondent has not returned these calls. I
understand a member of Mr. Taub's family is seriously ill.
Accordingly, in order to avoid further undue delay, I am issuing this
clarification subject to a request by Respondent (or counsel on
his behalf) for additional proceedings. If I do not receive such
a request by June 10, 1986, this clarification will be in effect
as a part of my Decision of March 14, 1986.

In my March 14 decision, I conditioned the reduction of the
Respondent's suspension on his submitting, by October 10, 1990,
evidence satisfactory to the I.G. that 1) the Respondent is not,
as of October 1, 1990, dependent on drugs or alcohol, and 2) that
he has completed, within the year preceding, a seminar or program
on Medicaid and Medicare billing requirements that is approved by
New York State, the federal government, or the I.G. If the
Respondent fails to submit this evidence by October 10, 1990, his
suspension would no longer be reduced, but would be for the
entire ten (10) year period originally imposed by the I.G. Ina
parenthetical statement, I said that if the Respondent did submit
the required evidence and the I.G. did not reply by December 10,
1990, the Respondent would then be "automatically reinstated" as
of December 10, 1990.
It was not my intent to imply that Respondent would be automatically
reinstated as a provider if the I.G. did not reply. As I indicated
in a footnote to my decision, the Respondent would have the right

to seek reinstatement under 42 C.F.R. §420.130. What I meant was
that, insofar as the conditions which I imposed in addition to

those in §420.130 were concerned, the Respondent had done what

was necessary to reduce his suspension to seven (7) years and one

(1) day and it was no longer necessary to await a reply by the

I.G. for the reduction to be effective. I reiterate that my

decision was not intended to and has no bearing on the rights of

the Respondent or the prerogatives of the I.G. regarding reinstatement
under 42 C.F.R. §420.130.

The decision is modified accordingly.

/s/

Charles E. Stratton
Administrative law Judge

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Grant Appeals Board

Office of Hearings for Civil Money Penalties

In the case of:
DATE: MAR 14, 1986
The Inspector General,
Docket No. C-12

(Appeal of ten (10) year
suspension from Medicare and
Medicaid Programs imposed
pursuant to §1128(a) of the
Respondent. Social Security Act)

— DECISION NO. CR7
DECISION OF ADMINISTRATIVE LAW JUDGE

-v-

Narendra Khurana, M.D.,

This case is before an Administrative Law Judge (ALJ) pursuant
to a request for a hearing filed on behalf of the Respondent, a
physician, who disagrees with and appeals from a determination
of the Inspector General (I.G.) of the Department of Health and
Human Services (DHHS) suspending the Respondent from participation
in Medicare and Medicaid programs for a period of ten (10)
years pursuant to section 1128(a) of the Social Security Act
(Act), as amended, and its implementing federal regulations (42
C.F.R. §§420.100 et. seq.) (Regulations). 1/ 2/ The suspension
of the Respondent was effective on December 10, 1983 and was
based upon the I.G.'s determination that (1) the Respondent had
been convicted of a criminal offense, (2) the Respondent's
conviction was related to his participation in a Medicaid
program, and (3) a ten year suspension of the Respondent was
reasonable.

i/ All references to the Act in this Decision are to the current
sections, aS amended, unless otherwise stated. Section 1128(a) of
the Act is codified at Title 42 U.S.C. §1320a-7(a) and was

enacted as a part of the Omnibus Budget Reconciliation Act of

1980 (Pub. L. No. 96-499, 94 Stat. 2599, section 913, effective
December 5, 1980) and amended by §2105(b) of the Omnibus Budget
Reconciliation Act of 1981 (Pub. L. No. 97-35, enacted on August 13,
1981, 95 Stat. 791, 873).

2/ This case is before the undersigned ALJ as a result of the

April 2, 1985 Delegation of Authority from L. Charles Leonard,

Regional Chief Administrative Law Judge, Office of Hearings and
Appeals (OHA), Region II, Social Security Administration (SSA),
(Footnote cont'd on page 2.)
THE LAWS AND REGULATIONS INVOLVED

Section 1128(a) of the Act requires the Secretary of DHHS to
suspend physicians from DHHS programs as follows:

Whenever the Secretary determines that a physician or

other individual has been convicted (on or after October

25, 1977... .) of a criminal offense related to such
individual's participation in the delivery of medical

care or services under Titles XVIII [Medicare], XIX
[Medicaid], or XX [Social Services Programs], the Secretary -

(1) shall bar from participation in the [Medicare]
program under title XVIII [Medicare], each such individual
otherwise eligible to participate in such program;

(2)(A) shall promptly notify each appropriate State
agency administering or supervising the administration
of a State [Medicaid] plan .. . of such determination,
and . . . require each such agency to bar such individual
from participation in such [Medicaid] program for such
period as he shall specify ....

* * *

(3) shall promptly notify the appropriate State or
local agency or authority having responsibility for the
licensing or certification of such individual of the
fact and circumstances of such determination, request
that appropriate investigations be made and sanctions
invoked in accordance with applicable State law and policy,
and request that such State or local agency or authority
keep the Secretary and the Inspector General of the
Department of Health and Human Services fully and currently
informed with respect to any actions taken in response
to such request.

(Footnote 2/ cont'd)

DHHS; this case would normally be heard and decided by an ALJ

from the SSA, OHA. This case was delegated because the undersigned
ALJ already had a pending case (Docket No. C-11) involving different
sections of the Act, but similar subject-matter, i.e., proposed
civil money penalties and assessments totalling $150,000 (§1128A

of the Act; 42 U.S.C. §1320a-7a(a) to (h)) and a ten (10) year
suspension from participation in the Medicare and Medicaid Programs
(§1128(c) of the Act; 42 U.S.C. §13207a-7(c)), the suspension to
run concurrently with the ten year suspension which is the
subject-matter of this case; the consolidation of these cases

was for the convenience of the parties and for reasons of

judicial economy. See, Regulations, §405.1532, which allow such
delegation.
-3-
Section 1128(e) of the Act (42 U.S.C. §1320a-7(e)) provides:

Any person or entity who is the subject of an adverse
determination made by the Secretary under...
[§1128(a)] shall be entitled to reasonable notice and
opportunity for a hearing thereon by the Secretary to
the same extent as is provided in section 405(b) of this
Title, and to judicial review of the Secretary's final
decision after such hearing as is provided in section
405(g) of this Title. 3/

The legislative history of section 1128(a) of the Act (more speci-
fically, its predecessor, i.e., section 1862(e) of the Act)
provides: 4/

[Tlhis provision [was included] in response to the
concern that some program violators have been
permitted continued participation, often without
interruption, in Federal health care programs.

The committee feels that the misuse of Federal and
state funds is a very serious offense and that
those convicted of crimes against the programs
should not be permitted continued and uninterrupt-
ed receipt of Federal and state funds.

H.R. Rep. No. 393, 95th Cong., lst Sess. 69 (1977), reprinted
in 1977 U.S. Code Cong. & Ad. News 3039, 3072.

The current section 1862(e) of the Act (42 U.S.C. §1395y(e)) provides:

No payment may be made under this subchapter with
respect to any item or service furnished by a
physician or other individual during the period

when he is barred pursuant to... [§1128(a) of the
Act] from participation in the [Medicare or Medicaid
programs] ....

as (e) by Pub. L. No. 98-369, Title III, §2333(a)(b), 98 Stat.
1089, effective July 18, 1984. The redesignation applies to
“convictions of persons occurring after [July 18, 1984]" and
technically should be referred to as (d) in this case because
the Respondent's conviction was on February 24, 1983, before
the July 18, 1984 effective date; however, since there are no
substantive changes involved, for convenience and clarity, I
have referred to the current subsection (e) in this case.

4/ The predecessor section to 1128(a) of the Act was §1862(e)

of the Act, until 1980 when Pub. L. No. 96-499, §913(b), substituted
the provisions of §1862(e) to §1128 and added the present day
language to §1862(e).
-4-

The Regulations implementing section 1128 of the Act (42 C.F.R.
§§420.1 et. seq.; 48 Fed. Reg. 3742; January 27, 1983) became
effective in 1983. 5/ 6/

Section 420.128 of the Regulations provides for appeals to an
ALJ subsequent to suspension and limits the appeal to three (3)
issues as follows:

1) whether he was, in fact, convicted;

2) whether the conviction was related to his partici-
pation in the delivery of medical care or services
under the Medicare, Medicaid or social services
programs; and

3) whether the length of the suspension is reasonable.

Section 420.128 also provides that:

(c) If any party to the hearing is dissatisfied with the
hearing decision, the party is entitled to request Appeals
Council review of the decision as specified in sections
405.1559 through 405.1595 [of 42 C.F.R.] .. .. A suspended
party may also seek judicial review of the final admini-
strative decision [in the United States District Court].

Section 420.125(b) of the Regulations provides that in setting a
term of suspension, the I.G. will consider the following:

(1) The number and nature of the program violations
and other related offenses;

(2) The nature and extent of any adverse impact the
violations have had on beneficiaries;

5/ On April 3, 1983, the Secretary rescinded the previous

delegation of authority for taking action under section 1128

of the Act, which had been vested in the Health Care Financing
Administration (HCFA), and redelegated this authority to the I.G,.

48 Fed. Reg. 21662 (May 13, 1983). Accordingly, where the Regulations
read HCFA, the I.G. should be substituted.

6/ It should be noted, to avoid any possible confusion, that

the current §1128(c) of the Act relates to a suspension pursuant

to the civil money penalties law (42 U.S.C. §1320a-7a(a) to (h)

and §1320a-7(c)) and the implementing regulations to these provisions
of the Act are found at 45 C.F.R. §§101. et. seg.; these provisions
do not relate to this case at all, only to Docket No. C-1l.
(3) The amount of the damages incurred by the Medicare,
Medicaid, and the social services programs;

(4) Whether there are any mitigating circumstances;

(5) The length of the sentence imposed by the court;

(6) Any other facts bearing on the nature and
seriousness of the program violations; and

(7) The previous sanction record of the suspended party
under the Medicare or Medicaid program.

In summary, the suspension of a physician convicted of a

DHHS program related crime in a state or federal court is
mandatory under section 1128(a) of the Act. The length of the
suspension is within the Secretary's discretion. The Secretary
has delegated to the I.G. the responsibility for implementing
the mandatory requirements of section 1128 of the Act and for
determining the length of time that a physician or an individual
will be suspended within the framework of the Act and Regulations.
The suspended physician has the right to a hearing before an

ALJ to determine whether he was convicted of a program-related
crime and whether the length of a suspension is reasonable,

in light of the seven (7) considerations outlined in section
420.125(b) of the Regulations. Finally, the suspended physician
has a right to Appeals Council review and judicial review of

the final administrative decision.

JURISDICTIONAL AND PROCEDURAL BACKGROUND

In this case, by the letter of November 25, 1983, the Acting
Assistant Inspector General for Health Care Financing Integrity
(HCFI) notified the Respondent that the I.G. had determined

that the Respondent had been convicted of a criminal offense
related to his participation in the New York State Medicaid
Program and, accordingly, he was, effective as of December 10,
1983, mandatorily suspended from participation in the Medicare
and Medicaid programs for a period of ten (10) years pursuant to
section 1128(a) of the Social Security Act, 42 U.S.C. §1320a-7(a),
and its implementing federal regulations, 42 C.F.R. §§420.100
et. seq. The Respondent's timely request for a hearing in this
case and the subsequent delegation by SSA and the consolidation
of this case with Docket No. C-1l resulted in the Docketing of
this case to be decided by the undersigned ALJ.

A prehearing conference was held in Washington, D.C., on June
18, 1985, at which time prehearing procedures were discussed
and a schedule was set forth for preparation for the hearing.

For the convenience of the parties and for reasons of judicial
economy, the June 14, 1985 Order and Summary of Prehearing
-6-

Proceedings stated that this case was consolidated with Docket

No. C-1ll for purposes of hearing both cases during the same week;
the Order also stated that the hearing would be bifurcated and
that two separate decisions would be issued. Therefore, in view
of the differing factual and procedural considerations, the
hearing was conducted from September 10 through September 13,

1985 in two distinct parts; the first part, on September 10,
involved this case, the section 1128(a) suspension, and the second
part, from September 11 through the 13th, involved Docket No.
C-11, the civil money penalties, assessments, and §1128(c) suspension.
However, evidence presented in each case may be used in the other.

The Respondent moved for an indefinite adjournment or continuance

of the hearing in this case and in Docket No. C-11 (prior to the
hearing and again at the hearing) on the grounds that the Respondent
would seek (on the basis of new evidence) to overturn the conviction
upon which the I.G. based its suspension in this case and upon

which the I.G. cites as an aggravating circumstance in support

of the I.G.'s proposed penalties, assessments and suspension in
Docket No. C-ll. The I.G. objected to the motion. I denied the
Respondent's motion on August 19, 1985 verbally, and issued a
confirmation of said verbal order on August 20, 1985. I denied

the motion a second time, at the hearing, on September 11, 1985.

My reasons for denying the Respondent's motion were: First, this
case would be reopened if the Respondent was successful in over-
turning his guilty plea in State Court because the I.G. is required
to "reinstate a suspended party whose conviction has been reversed
or vacated." Regulations, §420.136(a). Next, the requested period
of continuance and likelihood of success was too indefinite.
Finally, the Respondent had not yet even begun to attempt to
overturn his conviction in State Court. TR II/10 to 20. See,
Michienzi v. Harris, 634 F 2d 345 (6th Cir. 1980).

ISSUE

The general issue to be determined is whether the length of the
Respondent's suspension under section 1128(a) of the Act
is reasonable. 7/

FINDINGS, CONCLUSIONS, AND DECISION

Having considered the entire record, the arguments and briefs

7/ The Respondent concedes that his guilty plea to one (1)

count of Grand Larceny, Third Degree, and one (1) count of
Offering a False Instrument for Filing, First Degree, amounts to
a conviction of a program-related crime within the meaning of
the Act and Regulations. TR I/86 to 87. See also, the "Revised
Order, Notice of Hearing and Summary of Prehearing Proceedings"
in this case, at par. 9, and TR II/8, 9.
-7-

of the parties, and being advised fully herein, I make the
following Findings, Conclusions, and Decision: 8/ 9/ 10/

FINDINGS AND CONCLUSIONS

1. After an investigation, the Respondent was indicted by

the People of the State of New York for one (1) count of Grand
Larceny, Third Degree, and eighty-two (82) counts of Offering

a False Instrument for Filing, First Degree. The indictment
was based on claims presented by the Respondent to the New York
Medicaid Program for reimbursement of medical services which
were not provided as claimed. Stip. B.8; TR II/9.

2. On February 24, 1983, the Respondent withdrew his not

guilty plea and pleaded guilty to one (1) count of Grand

Larceny, Third Degree, and one (1) count of Offering a False
Instrument for Filing, First Degree. I.G. Ex 1; Stip. B.8; TR II/9.

3. The Respondent was sentenced the same day, upon his guilty
plea, to a conditional discharge on each of the two (2)

counts and a fine of Five Thousand Dollars ($5,000) on each of
the two counts. With respect to the conditional discharge,
the Court set the following conditions:

1. Respondent pay Fifty-Five Thousand Dollars
($55,000) restitution, plus Ten Thousand
Dollars ($10,000) interest within two (2)
years.

8/ Any part of this Decision of Administrative Law Judge
preceding the Findings, Conclusions, and Decision which is

or may be deemed a finding of fact or a conclusion of law is
hereby incorporated herein as a finding of fact or conclusion
of law. I refer primarily to the Jurisdictional and Procedural
Background section where the facts and conclusions are not
contested and may not be repeated here.

9/ References to record Exhibits, Stipulations and the
Transcript are as follows:

R Ex/(page number)

I.G. Ex/(page number)

J Ex/ (page number)

TR (volume/page number)
Stip. (number)

Respondent's Exhibit
I.G. Exhibit

Joint Exhibit
Transcript
Stipulations

10/ The Respondent filed a post-hearing brief. The I.G. filed
both a post-hearing brief and a reply brief. "RB" references

are to the Respondent's brief. "I.G.B" references are to

the I1.G.'s brief. "I.G.RB" references are to the I.G.'s reply
brief.
-8-

2. Respondent pay a fine of Ten Thousand
Dollars ($10,000) on or before December 15,
1983 (10 months).

Stip. B.9; TR II/9.

4. The Respondent met each of the conditions set by the State
Court. Stip. B.9; TR II/9.

5. Upon learning of the Respondent's conviction, the New

York Regional Office of the I.G. began to process the
Respondent's suspension, pursuant to section 1128(a) of the Act.
TR 1/92.

6. The I.G. reviewed the case pursuant to its customary
procedures and ultimately recommended that the Respondent be
suspended from participation in the Medicare and Medicaid
program for a ten year period. TR 1/103.

7. Specifically, Sam Starks, Administrative Sanctions
Coordinator of the Office of the I.G. for the N.Y. Region
recommended that the Respondent be suspended from participation
in the Medicare and Medicaid Programs for a ten (10) year

period based upon his evaluation or review of the recommendation
of a "program analyst" whom he supervised (Barry Jerson).

TR 1/88 et. seq.

8. The proposed ten year period was derived from the application
of the seven (7) factors set forth in section 420.125(b) of the
Regulations to the facts of the Respondent's case. TR 1/91.

9. This recommendation was adopted by the Assistant I.G. for
HCFI and a Notice of Suspension was sent to the Respondent on
November 25, 1983. 1I1.G. Ex 4; TR I/103.

10. The Respondent submitted a timely appeal from the I.G.'s
determination and requested a hearing before an ALJ. TR II/9.

1l. The ten (10) year period of suspension imposed upon the
Respondent by the I.G. is not reasonable for the following reasons:

I found Sam Starks to be a very honest, forthright, and competent
individual. He was a very credible witness and considered each
one of the seven (7) factors set forth in section 420.125(b) of

the Regulations to determine a reasonable term of suspension for
the Respondent. TR I/91 to 104, 108, 112, 113, 116, 117, 122, 123,
126 to 128. He did his job carefully and competently in this

case. Mr. Starks considered mitigating circumstances and found
none to exist. TR I/ 100, 127. Mr. Starks stated that the I.G.
considers pre-conviction circumstances that lessen the moral
culpability of the individual to be mitigating. He stated, as
- 9 -
an example, that this would be when a:

physician is under some kind of medical or
psychological strain that was recognized by the
sentencing judge . . . some kind of extreme

economic duress... for] assists the prosecution in
stopping other wrongdoing by other health care
providers... .

TR I/10U0/lines 3 to 10; see also, lines 11 to 14, 20 to 25 and TR
I/101/lines 1 to 9.

The Appeals Council of SSA stated, In the Matter of Barnett and
Belkin, Docket No. OA-580-2, April 30, 1981, p. 14:

That mitigating circumstances basically entail those
considerations or conditions which occur prior to a
criminal investigation, such as a practitioner's mental
health, or a catastrophic situation within his immediate
family requiring great financial sacrifice.

Mr. Starks explained that, in his experience, mitigating factors
which might have a bearing on the I.G.'s determination are

set forth by the defendant in a plea elocution at sentencing.

TR I/100-101. In recommending the ten year suspension of the
Respondent, Mr. Starks reviewed Dr. Khurana's statement to the
sentencing judge concerning the circumstances underlying his
conviction. I.G. Ex 3. Based on that statement, Mr. Starks found
no evidence of mitigating circumstances which would justify a
reduction in the period of suspension, TR I/100, 127-28; I.G.B

at pp. 11 to 12. I find that he was correct.

However, the preamble to the Regulations, as cited by the I.G., states
clearly that the DHHS:

May consider information contained in the indict-
ment, investigative reports, presentencing re-
ports, prior convictions, reports from fiscal
agents regarding previous problems arising from
the subject's practice and relating to Federal
reimbursement or any other credible evidence which
will assist [the Department] in determining degree
of risk the subject poses to the integrity of the
Medicare and Medicaid programs.

48 Fed. Reg. 3744 (January 27, 1983); I.G.B at pp. 6 to 7.

Thus, since this is a de novo hearing, I must consider "any
other credible evidence which will assist" me at arriving at
a fair decision (48 Fed. Reg. 3744). Ordinarily, I would not
substitute my judgment for that of someone as competent as Mr.

- 10 -

Starks. However, for some reason (perhaps because it was not
available, was not considered credible, or was not examined because
of internal policy), Mr. Starks did not consider certain information
that was admitted into evidence in Docket No. C-1l. Since this
evidence was not included in Mr. Stark's report, it was not
available for review through the various layers of review in the
I.G.'s Office before the Notice of Suspension was issued on

November 25, 1983 (indicating that a ten (10) year suspension was
reasonable after considering the seven (7) factors in section
420.425(b) of the Regulations).

The evidence I am referring to is the transcript and tape recording
of a conversation between the Respondent's wife and a New York City
radio talk-show host named Ms. Kurianski, who is a psychologist.

TR III/135 to 148. 11/ At the request of the I.G. and over the
objection of the Respondent, this tape was played and transcribed
into the record in this case (TR III/142 to 148) during the
testimony of Mr. Barry Jerson, an investigator (program-analyst)
for the I.G. TR III/114 to 174. While the Respondent's

counsel originally objected to the admission of the tape into
evidence, and objected to having the tape transcribed by the court
reporter in this case, and having the transcription be used as
evidence, the Respondent admits that the voice on the tape was

that of the Respondent's wife and urges that I consider and weigh
the evidence to support the Respondent's argument that the I.G.
failed to consider certain factors as mitigating factors. RB at

p- 12. The Respondent now argues that Ms. Khurana's statements
about the guilt of her husband be discounted, but that her statements
about the Respondent's medical and psychological strain be given
great weight as mitigating factors. The I.G. argues that I

1l/ The wife of the Respondent, Dr. Rhoopa Khurana, gave her name
as "Mary" when she called the radio talk-show and spoke to Mrs.
Kurianski. The radio station policy required callers to give a
phone number in case they are disconnected. New York State
investigators traced the number given by "Mary" to the home of
Drs. Narendra and Rhoopa Khurana. Ms. Khurana's identity is
further confirmed by the fact that during the conversation, she
gave a large amount of personal and family history which corresponded
exactly to the personal history of Rhoopa and Narendra Khurana.
Furthermore, counsel for the Respondent admits that the caller
was Ms. Khurana. TR IV/84, 88; TR III/151.
-ll-

should give great weight to the statements of the Respondent's
guilt, but does not really address the other side of the coin.

The evidence offered by the I.G. is a double-edged sword; it
addresses not only the Respondent's intent to cheat Medicaid, but
outlines problems which impaired the Respondent's ability to work.
I give equal weight to all of Ms. Khurana's statements. The
evidence reveals shocking statements concerning the Respondent's
intent to cheat Medicaid, drug-addiction causing impairment of

the Respondent, a nervous breakdown of the Respondent's wife, also
a physician, a daughter with cerebral palsy and her operation,
unhappiness, depression and the inability of the Respondent to
work. TR III/142 to 148.

Therefore, I must consider the evidence in the record of Ms.
Khurana's conversation if it is credible and weigh it against
the rest of the evidence in the record. I find that the words
of the Respondent's wife illustrate a clear concern for the
well-being of herself, her family and her husband's problems.
She is also a physician and I find her statements concerning her
husband to be credible. I find that the problems Ms. Khurana
cited are evidence of the Respondent's mental condition, (i.e.,
that the Respondent was under great mental strain, that the
Respondent's daughter was suffering from cerebral palsy, that
the child's condition and his wife's nervous hreakdown affected
the Respondent, that the Respondent was suffering from dependency
on drugs, and that the dependency and mental strain affected his
ability to work).

It should be noted that although he now admits that his wife's
description of his mental state and drug dependency is correct,

the Respondent was remiss in not coming forward to establish a

more concrete nexus between these problems and the program-related
crime which is the subject-matter of this case. At the very

least, the Respondent should have explained how his drug dependency
and family problem lessened his moral culpability. Instead, the
Respondent sat back, let the I.G. provide the evidence in the

case that the Respondent later seized upon as evidence of migitating
factors, and then still took no affirmative action. Nonetheless,
even by taking no affirmative action, the Respondent argues that

he has benefitted because the I.G. must show, that all seven (7)
criteria listed in section 420.125(b) were considered and that:

The length of the suspension determined on
the basis of these criteria was not extreme
or excessive.

(48 Fed. Reg. 3744.)
-12-

The I.G. has the burden of showing that the seven-point criteria

has been complied with and that the I.G.'s decision to suspend

for the ten (10) year period is reasonable. Regulations §420.128(a).
If the I.G. meets his burden of proof, the burden then shifts to

the Respondent to establish the I.G.'s determination is unreasonable.
See, In the Matter of Barnett and Belkin, supra, at p. 11. Absent
the evidence supplied by the Respondent's wife's conversation, which
was introduced into evidence by the I.G., I find that the I.G.

has met his burden of proof and that the Respondent failed to

rebut. I find, but for this evidence, there is no factual or

legal basis for setting aside or modifying the period of suspension
imposed by the I.G. However, I find that these problems suffered

by the Respondent are mitigating factors and that the I.G. did

not consider these factors. I find that the I.G. and, specifically,
Mr. Starks did consider the six (6) other factors thoroughly and
correctly and that the ten (10) year suspension is warranted, but

for the fact that the I.G. did not consider the pre-conviction
problems of the Respondent as mitigating factors.

There may be several choices for the present disposition of this
case under the Regulations, considering the entire record and the
facts of the Respondent's mental condition prior to his program-
related crime. First, I could remand this case to the I.G.

pursuant to section 405.1542(c) of the Regulations. See also,
§405.1560. Second, I could re-open the record for further testimony
to (1) determine the extent of the Respondent's drug problem,

mental health, and family problems (and how these factors affected
his medical practice and program-related crime), and (2) examine

how Mr. Stark's determination would be affected if he had considered
the factors cited by Ms. Khurana. 12/ Third, I could decide

this case on the basis of the present record and allow the parties
60 days to file a Motion for Reconsideration. See also, Regulations,
§405.1570. In the interests of justice and to effect a speedy
decision, I have chosen to make a decision and leave open to the
parties the opportunity to file a timely Motion for Reconsideration.

12/ For example, if Mr. Starks had testified that he considered

these factors or problems suffered by the Respondent prior to and
during his program-related crime and still decided that a ten (10)
year suspension was reasonable under the circumstances, I would

have decided that a ten (10) year suspension is reasonable. However,
that is not the situation here.
- 13-

To reach a decision in this case, several steps were taken. The
first was to determine whether Ms. Khurana's statements about

her husband were credible. 13/ I found Ms. Khurana's statements

to be credible and, by examining the record, I found that the

I.G. had not considered these statements in making his determination
to suspend the Respondent for ten (10) years. The next step
required an inference. To find that the Respondent's problems
affected his program-related crime, I had to make an inference

that the Respondent's problems, as stated by Ms. Khurana, would

have motivated the Respondent (or at least contributed to his
situation in great part) to commit or exacerbate his program-related
crime. While this is the weakest link in the decision-making

chain, I feel that justice and common sense requires the assumption
that the shocking set of problems facing the Respondent at the

time of his program-related crime had to have clouded his judgment
and thus diminished his culpability. The final step was to determine
how the evidence of the mitigating factors presented in this

case, which was not considered by the I.G., should affect the

term of suspension in this case. Assuming that the problems

stated by the Respondent's wife are the type of problems that

the I.G. would consider as mitigating circumstances (i.e., circum-
stances that would require a reduction in the term of suspension

of the Respondent), the major consideration in determining the
length of suspension is to assess the "degree of risk the subject
poses to the integrity of the Medicare and Medicaid programs" (48
Fed. Reg. 3744). While the program, and thus the medically needy
persons served by it, suffered because of the Respondent's intent

to cheat Medicaid, the Respondent's patients did not seem to

suffer as directly and as severely as they could have. For

example, nowhere in the record in this case or in Docket No. C-1l is
there enough credible evidence that the Respondent rendered improper
medical treatment to his patients or refused to see them when they sought

13/ At the hearing, the Respondent's wife appeared by counsel and
opposed the I.G.'s motion for an order to enforce appearance as a
witness against her husband. I ruled at the hearing that the
Respondent's wife did not have to testify in this case or in
Docket No. C-11l on the grounds that (1) the principles of the common
law as interpreted by the courts of the United States govern the
law of privilege because federal law supplied the rule of decision
in this case (see, Rule 501 of the Federal Rules of Evidence), and
(2) the case of Trammel v. United States, 445 U.S. 40 (1979),
stands for the proposition that a wife cannot be compelled to
testify against her husband in a federal forum (on the basis of
the marital privilege). Here, however, the Respondent's wife
waived the marital privilege with regard to the taped conversation
with the radio talk-show host, which is in evidence in his case,
because she volunteered information about her husband to thousands
of people over the radio. TR I/80 to 85,

- 14 -

treatment. On the other hand, the Respondent should have been

more cooperative with the I.G. in directly supplying evidence of
his problems and how these problems affected his program-related
crime so that the I.G. could have taken them into consideration
prior to the issuance of the suspension notice of November 25,
1983. Moreover, the Respondent should have been more candid and
cooperative during the course of the prehearing process and at

the hearing itself by directly supplying evidence of the mitigating
factors and evidence of how these factors affected his program-related
crime (especially since the Respondent's pre-sentencing statements
do not refer to these mitigating factors at all).

Accordingly, taking all the above factors into consideration, I
decided to reduce the ten (10) year period of suspension imposed
on the Respondent to seven (7) years and to impose conditions to
reduce any future risk to the Medicare and Medicaid programs. 14/

DECISION

It is my decision that the Respondent's ten (10) year suspension
from Medicare and Medicaid participation pursuant to section
1128(a) be reduced to seven years and one (1) day (i.e., from
December 10, 1983 to December 10, 1990) (because of mitigating
factors not considered by the I.G.) on the condition that, by
October 10, 1990, the Respondent submit evidence satisfactory to
the I.G. (1) that he is not, as of October 1, 1990, dependent on
drugs or alcohol and (2) submit evidence that he has completed a
seminar or program within that year on Medicaid and Medicare
billing requirements that is approved or sponsored by New York
State, the Federal Government or by the I.G. (In the event the
Respondent submits this evidence to the I.G. and the I.G. does
not respond to the Respondent by December 10, 1990, the Respondent
is then automatically reinstated as of December 10, 1990.) If
this evidence is not submitted by the Respondent by October 10,
1990, the Respondent's suspension from Medicare and Medicaid
programs will then be for the entire ten (10) year period imposed
by the I.G.

/s/

Charles E. Stratton
Administrative law Judge

to seek reinstatement at any time pursuant to provisions in
the Regulations, such as section 420.130.