DECISION

This case is before me pursuant to a request for hearing filed on October 11, 2002, by Raúl Feliciano-Arieta, M.D., Petitioner.

By letter dated September 30, 2002, the Inspector General (I.G.) notified Petitioner that he was being excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) for the minimum period of five years. The I.G. informed Petitioner that his exclusion was imposed under section 1128(a)(1) of the Act, due to his conviction of a criminal offense (as defined in section 1128(i) of the Act) related to the delivery of an item or service under the Medicare program.

On March 5, 2003, I convened a telephone prehearing conference during which the parties agreed that an in-person hearing was not required and that the issues could be decided by briefing the I.G.'s motion for summary judgment. Petitioner appeared on his own behalf, and I advised him of his right to legal representation.

During the telephone conference, Dr. Feliciano-Arieta reiterated what he had previously stated in a letter dated December 28, 2002, that his wish was not to make further argument in the case, but to submit the case for adjudication based on his December 28, 2002 letter and the criminal information and judgment on file with the United States District Court for the District of Puerto Rico. I.G. Exhibits (I.G. Exs.) 2 and 3. The December 28, 2002 letter makes reference to several court documents already in the record, but I admit Petitioner's letter itself as Petitioner's Exhibit (P. Ex.) 1. During the telephone conference, Petitioner also referenced a statement from the attorney who represented Petitioner in his criminal case. Petitioner submitted the statement with his request for a hearing. It is a three paragraph document signed by Ludwig Ortiz Belaval. Although the statement has not been offered as an exhibit, I infer from Petitioner's references to it that he wished to have it included in the record. Accordingly, I admit the attorney's statement as P. Ex. 2. Petitioner added that he did not desire to reply to the I.G.'s motion for summary judgement and brief. Consequently, I issued an order granting the I.G. until April 7, 2003, to file a brief in support of summary judgment, after which I would close the record and issue a decision. The I.G. submitted a brief on April 3, 2003, accompanied by three exhibits. In the absence of objection, I admit the I.G.'s exhibits as I.G. Exs. 1-3. Neither party offered the I.G.'s letter of exclusion dated September 30, 2002. I am, therefore, entering that document into the record as ALJ Ex. 1.

It is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in the Medicare, Medicaid, and all federal health care programs, for a period of five years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicare program. As a matter of law, I find also that the five-year exclusion imposed on Petitioner is the mandatory minimum period of exclusion.

ISSUES

Section 1128(a)(1) of the Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual convicted of a criminal offense relating to the delivery of a health care item or service.

An exclusion under section 1128(a)(1) of the Act must be for a minimum period of five years. Section 1128(c)(3)(B) of the Act. Aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. � 1001.102(b). If aggravating factors justify an exclusion longer than five years, mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

Pursuant to 42 C.F.R. � 1001.2007, an individual or entity excluded under section 1128(a)(1) of the Act may file a request for a hearing before an administrative law judge.

FINDINGS AND DISCUSSION

The findings of fact and conclusions of law noted below, in bold face, are followed by a discussion of each finding.

Petitioner, a licensed medical doctor, was employed by Empresas Rosich as a physician at Servicios Médicos de Humacao (SMH). SMH provided services to Medicare beneficiaries, and submitted claims for payment to Medicare Part B through its fiscal intermediary, Triple S. The claims were routed through Servicios Médicos de Carolina (SMC), inasmuch as SMH did not have a provider number. I.G. Ex. 1, at 10.

On November 29, 1993, Petitioner, accompanied by an assistant, conducted home visits to beneficiaries "J.B." and "C.S." During those visits the assistant performed an EKG on both beneficiaries which was medically unnecessary and technically unacceptable. Petitioner completed all pertinent documents, including progress notes, representing that the EKGs were medically necessary and technically acceptable. SMC submitted a claim for payment of the EKGs to Medicare and did receive payment for the services. I.G. Ex. 1 at, 10, 11.

On July 9, 2001, the United States Attorney for the District of Puerto Rico filed a two count misdemeanor Information against Petitioner, charging that on or about November 29, 1993, Petitioner and others not therein charged, did knowingly make, cause to be made, or aide and abet in the making of, false statements or false representations of a material fact, in an application for payment under a program covered by subchapter XVIII, chapter 7, of Title 42 of the United States Code. I.G. Ex. 2. On December 27, 2001, Petitioner pled guilty to aiding and abetting in health care fraud. I.G. Ex. 3.

In his request for hearing, Petitioner appears to argue that his conviction was not related to the delivery of an item or service under the Medicare program, and that, somehow, his misdemeanor conviction does not give the I.G. authority for the exclusion.

Petitioner was convicted of causing to be made false statements of a material fact in an application for Medicare payments in violation of 42 U.S.C. � 1320a-7b(a)(1) and 18 U.S.C. � 2. Such conviction resulted from his conduct while employed as a physician by SMH. His representations that EKGs provided to two Medicare beneficiaries on November 29, 1993, were rendered as required by Medicare, and were medically necessary, resulted in claims for payment being submitted to Medicare by SMC. I find that there is a common sense connection between the criminal offense and the Medicare program in this case. See Andrew Anello, DAB No. 1803 (2001).

Convictions under 42 U.S.C. � 1320a-7b(a), with respect to Medicare, are program related within the meaning of section 1128(a)(1) of the Act. Thus, the Information, the relevant statute, and judgment of conviction establish that Petitioner was convicted of an offense that provides a basis to exclude him under section 1128(a)(1) of the Act.

An exclusion under section 1128(a)(1) of the Act must be for a minimum mandatory period of five years, as set forth in section 1128(c)(3)(B) of the Act:

Subject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be not less than five years . . . .

When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. � 1001.2007(a)(2). Aggravating factors that justify lengthening the exclusion period may be taken into account, but the five-year term will not be shortened. Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare. As a result of Petitioner's program-related conviction, the I.G. was required to exclude him.

CONCLUSION

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all federal health care programs, for a period of at least five years, because he was convicted of a criminal offense related to the delivery of an item or service under Medicare.