SUBJECT:

Theodore Sabot, M.D.,

Petitioner,

The Inspector General.

DECISION

This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Judgment. The parties have submitted briefs and exhibits in support of their positions, and I have reviewed their pleadings carefully. Having done so, I find no material facts in dispute and conclude that the I.G.'s position is correct as a matter of law. Accordingly, I grant the I.G.'s Motion and thereby sustain the I.G.'s determination to exclude Theodore Sabot, M.D., Petitioner, from participating in Medicare, Medicaid, and all federal health care programs for a period of 15 years, pursuant to sections 1128(a)(1), 1128(c)(3)(B), and 1128(c)(3)(G) of the Social Security Act (Act), 42 U.S.C. �� 1320a-7(a)(1), 1320a-7(c)(3)(B), and 1320a-7(c)(3)(G).

I. Background

Petitioner is a physician who specializes in psychiatry and psychotherapy. He has been licensed to practice in California and in New York, and during the period relevant to this litigation--April 1995 through December 1997--was employed in that capacity in New York by the Rennselaer County Department of Mental Health Unified Services (RCMH). RCMH is a provider of mental health services under the Medicare program.

On August 14, 2002, Petitioner appeared in United States District Court for the Northern District of New York. Acting with counsel, and in conformity with a plea agreement executed by himself, his attorney, and the United States Attorney, Petitioner pleaded guilty to a single-count felony charge of devising and executing a scheme to defraud the Medicare program, in violation of 18 U.S.C. � 1347 and 18 U.S.C. � 2. Judgment of conviction and sentence were entered on January 24, 2003.

By letter dated July 31, 2003, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of 15 years pursuant to section 1128(a)(1) of the Act. By letter dated September 12, 2003, Petitioner timely perfected his appeal from that determination and contested the exclusion. During a prehearing conference held November 3, 2003. Petitioner asserted that he is not contesting the fact that he was convicted of a criminal offense related to the delivery of an item or service under the Medicare program. The parties agreed that this case could proceed on written submissions and that I would reconsider the need for an in-person hearing after I had received all the submissions in this matter. The parties submitted briefs and supporting documents according to a schedule adopted during that conference, and the briefing cycle is now complete.

The I.G.'s December 5, 2003 Brief was accompanied by seven proposed exhibits (I.G. Exs. 1 - 7). The I.G. filed a February 6, 2004 Reply Brief accompanied by two proposed exhibits (I.G. Exs. 8 - 9).

Petitioner's December 22, 2003 Response was accompanied by 14 unnumbered attachments. Because Petitioner appears here pro se, I have taken the liberty of designating the attachments to Petitioner's Response as follows:

No objections have been made to any of the parties' submissions. Therefore, I admit into evidence Petitioner's Exhibits (P. Exs.) 1 - 14 and I.G. Exs. 1 - 9. Upon review of the parties' submissions, I have determined that there is no need for an in-person hearing. I base my decision in this case on the parties' stipulations, arguments, and all the exhibits admitted, which reveal that no material facts are in dispute. The applicable law, and the analysis described in Carrier Mills Nursing Home, DAB No. 1883 (2003), fully support the I.G.'s position in this case. ⁽¹⁾

II. Issues

The issues in this case are:

1. Whether Petitioner's conviction on his plea of guilty is a basis for the I.G.'s determination to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Act; and

2. Whether the 15-year length of the exclusion is unreasonable.

III. Discussion

Findings of fact and conclusions of law are set out as separate numbered headings in the Discussion section of this decision.

1. Petitioner was convicted of criminal offenses related to the delivery of items or services under Medicare.

Before the period relevant to his federal court conviction in New York, Petitioner was a medical doctor licensed to practice in California. I.G. Exs. 2, 3. Effective July 16, 1985, the I.G. excluded Petitioner from participation in Medicare and Medicaid for 25 years pursuant to section 1128(a)(1) of the Act, based on Petitioner's conviction in the Superior Court of California of an offense related to Petitioner's participation in the California Medicaid program. I.G. Ex. 5, at 4; I.G. Ex. 6. That exclusion was sustained by an Administrative Law Judge and remains undisturbed. I.G. Ex. 6; P. Exs. 2, 10.

During the term of this 25-year exclusion, from at least April 1995 through December 8, 1997, Petitioner was employed as a physician by RCMH and provided mental health services to Medicare beneficiaries as a RCMH physician. I.G. Ex. 5, at 4. Petitioner knew that these beneficiaries were in fact insured by the Medicare program, and knew that RCMH would submit claims to the program for services he provided to them. RCMH submitted claims to Medicare for services performed by Petitioner and Medicare paid those claims. Id. Just as Petitioner knew that RCMH would bill Medicare for services that he performed, he also knew that this practice was not permitted under the terms of his 1985 exclusion, and that any claims submitted to the Medicare program in execution of this scheme would be false. I.G. Ex. 5, at 4 - 5. Medicare paid RCMH $2,211.33 for services provided by Petitioner. I.G. Ex. 7, at 5.

On August 14, 2002, Petitioner was charged by felony Information in the United States District Court for the Northern District of New York with devising and executing a scheme to defraud the Medicare program, in violation of 18 U.S.C. � 1347 and 18 U.S.C. � 2. I.G. Ex. 4. Petitioner pleaded guilty to the one-count Information based on a plea bargain and waiver of indictment; the Plea Agreement and the Information set out the details of the scheme and artifice Petitioner devised and then executed. I.G. Exs. 4, 5. On January 24, 2003, a judgment of conviction was entered in which Petitioner was adjudicated guilty. Petitioner was sentenced to four months incarceration in the custody of the United States Bureau of Prisons, plus an additional four months of home detention. He was also ordered to pay $5,100 in fines and assessments and $2,211.33 in restitution.

The details set out in the Information to which Petitioner pleaded guilty, and the additional details of his offense acknowledged in the Plea Agreement, establish a nexus and common-sense connection between Petitioner's crime and the delivery of an item or service under the Medicare program. See Berton Siegel, D.O., DAB No. 1467 (1994). Petitioner's plea of guilty as described above, the District Court's acceptance of that plea, and the entry of its judgment of Petitioner's conviction and adjudication of Petitioner's guilt, all constitute a "conviction" within the meaning of sections 1128(i)(1), (2), and (3) of the Act, and 42 C.F.R. � 1001.2.

In his Response brief, Petitioner contends that he was unaware or uncertain of the effect his 1985 exclusion would have on his ability to render physician services for Medicare providers. P. Response, at 2. He has also offered that contention, inter alia, in support of an effort to solicit Congressional intervention in his exclusion. P. Ex. 10. However, Petitioner executed a Plea Agreement by which he won the United States Attorney's concession to "bring no further federal charges against the Defendant arising out of Defendant's conduct prior to December 9, 1997, in causing the submission of claims to Medicare and Medicaid while Defendant was suspended from those programs." I.G. Ex. 5, at 5. In the Plea agreement, Petitioner admitted that he knew he was providing services to clients for whom RCMH would submit claims to Medicare, knew that under the terms of his suspension that RCMH could not properly submit claims to Medicare for services furnished by him, and knew that any such claims submitted by RCMH were false. I.G. Ex. 5, at 4 - 5. Petitioner is bound by the facts he admitted in his plea and his Plea Agreement. Dirk G. Wood, M.D., DAB CR1068 (2003). More significantly, he cannot contest his exclusion through a collateral attack on the underlying conviction. 42 C.F.R. � 1001.2007(d). In any case, however, Petitioner has unequivocally conceded his conviction of violating 18 U.S.C. � 1347 and 18 U.S.C. � 2, and the records of that conviction establish the required nexus between his crime and the protected health care program.

2. The I.G. is required to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs.

Section 1128(a)(1) of the Act mandates that once an individual's conviction is found to have been "related to the delivery of an item or service under Title XVIII (Medicare) or a State health care program," the I.G. must exclude any individual or entity so convicted. The I.G. is without discretion in the matter: once the predicate conviction is established, the exclusion must be imposed, and must be imposed for the minimum mandatory term provided by section 1128(c) of the Act, 42 U.S.C. � 1320a-7(c). The I.G. must exclude Petitioner, inasmuch as Petitioner was convicted of an offense described in section 1128(a)(1) of the Act.

3. The statute requires that Petitioner be excluded from participation in federal healthcare programs for a minimum of 10 years.

An exclusion for a minimum term of five years is mandatory for any individual or entity convicted of a criminal offense and subject to the terms of section 1128(a)(1) of the Act. Section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B). However, when the excluded individual has "been convicted on one previous occasion of one or more offenses for which an exclusion may be affected under such subsection, the period of exclusion shall not be for less than 10 years." Section 1128(c)(3)(G)(i) of the Act, 42 U.S.C. � 1320a-7(c)(3)(G)(i). This provision is repeated in regulatory language at 42 C.F.R. � 1001.102(d)(1). Petitioner is currently subject to a 25-year exclusion, effective July 1, 1985, based on his conviction for defrauding the California Medicaid program. This 25-year exclusion will remain in full force and effect until July 1, 2010. I.G. Ex. 6. The exclusion before me became effective August 20, 2003. I.G. Ex. 1. It will run concurrently with the earlier 25-year exclusion until July 1, 2010, and will continue in full force and effect thereafter until its term expires. The 10-year minimum term mandated by section 1128(c)(3)(G) would expire August 20, 2013.

4. The I.G. has established the presence of aggravating factors which justify an exclusion of more than 10 years.

The I.G. relies on aggravating factors to enhance the term of Petitioner's exclusion to 15 years: if sustained, this enhanced exclusion would expire August 20, 2018. The Act provides that a term of exclusion imposed pursuant to section 1128(a)(1) may be enhanced beyond the mandatory minimum period where circumstances warrant a lengthier exclusion. The Secretary has published regulations which govern the length of exclusions imposed pursuant to section 1128 of the Act. The regulation that governs exclusions imposed under section 1128(a)(1) is found at 42 C.F.R. � 1001.102. This regulation describes certain aggravating factors which, if shown to be present and not offset by mitigating factors, may justify an exclusion of more than the minimum period. 42 C.F.R. �� 1001.102(b), 1001.102(c).

In this case the I.G. has asserted the presence of three aggravating factors. The first two are found in the records of Petitioner's 18 U.S.C. � 1347 conviction, to-wit:

� The acts that resulted in Petitioner's conviction, or similar acts, occurred over a period of more than a year. 42 C.F.R. � 1001.102(b)(2). Petitioner pleaded guilty to an Information that explicitly charged felony misconduct "commencing on or before April, 1995, and continuing through and including December 8, 1997," a period of approximately two and one-half years. I.G. Ex. 4, at 2. The Plea Agreement negotiated by Petitioner recites a similar explicit admission. I.G. Ex. 5, at 4. In his Response brief, Petitioner argues that "no actual proof is offered" (P. Response, at 2) that his criminal conduct occurred over more than one year, but he is nevertheless bound by the record of his plea and the Plea Agreement, in which he admitted this aggravating factor in sufficient detail to establish it beyond genuine dispute. Petitioner may dismiss the details of his plea and Plea Agreement as "obligatory forensic boilerplate" (P. Response, at 2), but his cavalier description of them in no way diminishes their binding effect on him now. Wood, supra.

� The sentence imposed against Petitioner for his crime included incarceration. 42 C.F.R. � 1001.102(b)(5). Petitioner was sentenced to four months' imprisonment in the custody of the United States Bureau of Prisons and four months' supervised home confinement. I.G. Ex. 7, at 2 - 4. A term of home confinement satisfies the regulatory definition of "incarceration." 42 C.F.R. � 1001.2. Thus, Petitioner was sentenced to a total of eight months' incarceration. He does not deny that his sentence included incarceration, but points out that it was "for the minimum term, as per federal sentencing guidelines." P. Response, at 2. This aggravating factor has been established beyond genuine dispute.

� The third alleged aggravating factor is more troublesome, given the unique facts of this case. The I.G. seeks here to invoke the factor to be applied when it can be shown that the convicted individual has a prior civil, criminal or administrative sanction record. 42 C.F.R. � 1001.102(b)(6). It is true that Petitioner's certificate to practice medicine was revoked by the Medical Board of California on September 10, 1986. I.G. Ex. 8. On April 19, 1993, Petitioner's request for reinstatement of his revoked California certificate was granted, with conditions. Id.; I.G. Ex. 3, at 2; P. Ex. 1. The record shows that Petitioner's California certificate is now in suspended status because of his failure to satisfy those conditions after April 19, 1993. I.G. Ex. 8. It appears likely, but not certain, that one of the unfulfilled conditions is "PASSING AN EXAMINATION." I.G. Ex. 3, at 2. The certificate revocation and suspension, it will be observed, happened after the 1985 exclusion, and thus formed no part of the I.G.'s basis for setting the 1985 exclusion at 25 years.

If this were the only prior sanction record at issue, I would simply find that 42 C.F.R. � 1001.102(b)(6) has been satisfied by the administrative sanction reflected in the 1986 revocation and current suspension of Petitioner's California certificate. It has been established beyond material dispute.

But, in addition, the I.G. seeks to use Petitioner's 1985 exclusion based on the California conviction as part of Petitioner's prior sanction record. I.G. Ex 1; I.G. Brief in Support of Motion for Summary Judgment, at 10. The difficulty with this position is that those factors--the 1985 exclusion and the underlying California conviction--have already been invoked as an essential part of the gravamen of the 18 U.S.C. � 1347 conviction and to enhance the minimum mandatory term of this exclusion from 5 years to 10 pursuant to section 1128(c)(3)(G)(i). Whether it is a logical or reasonable reading of the statutes and regulations to apply or consider the 1985 exclusion--without which there would have been no violation of 18 U.S.C. � 1347-- again as a predicate for discretionary enhancement under the regulation, is simply a question I need not answer here. I do not decide whether, having once added the California conviction to the matrix of facts invoking section 1128(c)(3)(G)(i) of the Act, and relying on the 1985 exclusion based on it to render RCMH's Medicare billings ipso jure false, the I.G. may rely on them once more to add weight to a showing of Petitioner's prior sanction record. I need not do so here, as the aggravating factor defined at 42 C.F.R. � 1001.102(b)(6) is established by Petitioner's record of administrative sanction relating to the 1986 revocation and 1993 suspension of his certificate to practice medicine in California.

That I do not rely on the 1985 exclusion to establish a prior administrative sanction should not be understood as a failure of the I.G.'s proof of it. This record establishes it conclusively. I.G. Ex. 6. I do not regard the reasonableness of the I.G.'s action as in any way eroded by my unwillingness to rely on it. This is not a situation similar to Jason Hollady, M.D., DAB No. 1855 (2002), where some of the aggravating factors on which the I.G.'s enhancement of an exclusion fell short of proof and where the ALJ did not express an opinion as to the sufficiency of the remaining factors. By addressing this point as I do, I hope to avoid obliging an appellate authority to carve out and apportion how much of an enhancement can be supported by less-than-complete proof of all the aggravating factors pleaded by the I.G.

The plain fact is that the exclusion remedy is a reasonable and well-founded measure directed at the very concrete purpose of protecting the Medicare and Medicaid programs from those who would misuse it and thereby abuse the beneficiaries who depend on the programs. There is a prophylactic aspect to this approach, and there is a deterrent aspect to it as well, as the Departmental Appeals Board (Board) has recently emphasized in Jeremy Robinson, DAB No. 1905 (2004). It is evident that neither prophylaxis nor deterrence was achieved by Petitioner's California conviction and his 1985 exclusion. Here, the seriousness of the prior administrative sanction by California authorities is undiminished and the I.G. was entitled to rely on it in fashioning a new regimen of prophylaxis and deterrence, particularly since it did not form part of the basis for the enhancement of the 1985 exclusion. My evaluation below of the reasonableness of the I.G.'s decision to impose a 15-year exclusion must be understood and evaluated in that historical and legal context, and in the specific awareness that during the first decade of his original exclusion Petitioner apparently learned an incomplete lesson about shaping his professional behavior to the requirements of the law.

5. Petitioner failed to prove the presence of any mitigating factors which might offset the aggravating factors established by the I.G.

Evidence relating to an aggravating factor or factors may be offset by evidence relating to any of the mitigating factors set forth at 42 C.F.R. � 1001.102(c)(1), (2), and (3). Those factors appear immediately following the regulation's emphatic expression that "Only the following factors may be considered mitigating . . ." As to each of the mitigating factors: ". . . Petitioner ha(s) the burden of proving any mitigating factor by a preponderance of the evidence, since the mitigating factor is in the nature of an affirmative defense." Barry D. Garfinkel, M.D., DAB No. 1572, at 12 (1996); Lloyd G. Bayme, M.D., DAB CR876 (2002). In his response to the I.G.'s motion, Petitioner asserts a number of arguments and circumstances which he contends are mitigating. These include his attempt to appeal his 1985 exclusion and the resulting uncertainty of the effect his previous exclusion would have on his ability to render physician services for Medicare providers, his belief that the duration of the exclusions would amount to a lifetime ban from participating in Medicare, Medicaid, and all federal health care programs, that the loss to the Medicare program was only $2,212.33 as a result of his second conviction for fraud, and that allowing him to continue to provide services would be in program patients' interests.

None of these arguments establish any of the limited mitigating factors identified by the regulation, and I find them irrelevant inasmuch as they do not relate to those specifically-enumerated and narrowly-defined mitigating factors. Valerie Baker, DAB CR882 (2002); Narendra M. Patel, M.D., DAB CR631 (1999). For example: since the conviction before me in this case was a felony, the mitigation allowed when a Petitioner is convicted of three or fewer misdemeanors and the loss to a protected program is less than $1,500 does not apply. 42 C.F.R. � 1001.102(c)(1). Petitioner's asserted confusion about the status of his 1985 exclusion is well outside the rubric of any of the defined mitigating factors, and is in any case directly contradicted by his statements in P. Exs. 10 and 12 that he abandoned his appeal of that exclusion to save expenses. Moreover, Petitioner's argument that the length of the exclusion is tantamount to a lifetime exclusion has been directly considered and bluntly rejected by the Board in Jeremy Robinson, supra.

Petitioner appears here pro se. For that reason I have searched the contents of all his pleadings and all 14 of his exhibits for any facts or arguments which might point to a colorable claim in mitigation within the meaning of the regulation. In doing so, I intend no relaxation whatsoever of the burden imposed on Petitioner by the clear language of Barry D. Garfinkel, M.D., supra, but simply acknowledge my obligation to accord this pro se litigant "some extra measure of consideration in developing a complete record." Louis Mathews, DAB No. 1574, at 7 (1996); George Iturralde, M.D., DAB No. 1374 (1992); Edward J. Petrus, Jr., M.D., DAB No. 1264 (1991). That search has left me utterly satisfied that neither as a matter of fact, nor as a matter of law, is Petitioner entitled to claim any of the mitigating factors set out in the controlling regulation.

6. An exclusion of 15 years is not unreasonable.

Section 1128 of the Act is civil and remedial. Its purpose is not to impose additional punishment on an excluded individual, but it does represent the Secretary's best and most robust tool for protecting federally funded health care programs and the beneficiaries of those programs from untrustworthy individuals, and for deterring untrustworthy individuals from despoiling the programs. Manocchio v. Sullivan, 768 F. Supp. 814 (S.D. Fla. 1991), aff'd, 961 F.2d 1539 (11th Cir. 1992); Joann Fletcher Cash, DAB No. 1725 (2000). Trustworthiness is the touchstone by which I must review, de novo, the reasonableness of the enhanced term of exclusion proposed in this case. Nevertheless, I must not go further than the question of reasonableness and my review must reflect the deference accorded to the I.G. by the Secretary's regulation: so long as the length of the exclusion is within a reasonable range and is based on demonstrated criteria, I may not alter it. Jeremy Robinson, supra; Joann Fletcher Cash, supra.

Neither the Act nor implementing regulations direct that an exclusion of any particular length beyond the minimum period must be imposed based on the presence of any particular aggravating factors or the absence of any particular mitigating factors. The factors identified at 42 C.F.R. � 1001.102(b) and (c) function in a sense as rules of evidence: they establish which facts may be considered in deciding whether an exclusion is reasonable, but do not impose a rigid formula of weight or persuasiveness to be afforded any specific item of that evidence. Jeremy Robinson, at 4, supra; Keith Michael Everman, D.C., DAB No. 1880 (2003) and cases cited therein. The circumstances of each case "drive the weight that a decisionmaker can give the aggravating and mitigating factors." Jeremy Robinson, at 4, supra. The presence of aggravating factors not offset by mitigating factors is not an automatic basis for deciding that an exclusion of any particular length is reasonable. Nor is the number of aggravating factors present in a case a particularly significant indicator whether an exclusion is reasonable. It is the "quality of the circumstances" assayed according to what they reveal about a Petitioner's trustworthiness, itself to be understood in the context of the goals of the exclusion remedy, that I must consider here.

The first and most obvious of the circumstances before me is the fact that Petitioner was not deterred, nor the Medicare program protected, by his 1985 exclusion. The predicate conviction in the matter before me would not have been possible as a matter of law if Petitioner's billings through RCMH had not been false, and they would not have been false if he had not already been excluded from Medicare participation. Accordingly, a 10-year exclusion would have been by definition reasonable under the terms of section 1128(c)(3)(G).

The 30-month period of time over which Petitioner devised and committed his crime was only slightly shorter than the three-year span of events the Board has held sufficient, with other factors, to sustain a first-instance 15-year exclusion in Jeremy Robinson, supra. The 30-month life of Petitioner's criminal career argues powerfully against its having been an accidental, impulsive, or brief course of conduct, with obvious implications for the I.G.'s view of his trustworthiness. The I.G.'s present upward departure from the 10-year minimum mandatory term is neither absolutely nor proportionally greater than the Board approved there: in Jeremy Robinson the Board imposed a three-fold enhancement of the minimum mandatory term, and reminded that it had sustained another 15-year exclusion where wrongful conduct took place over "slightly more" than a year. Donald A. Burnstein, Ph.D., DAB No. 1865, at 12 (2003). I believe that this factor, even if evaluated in combination with only the one next addressed, would have justified the I.G. in enhancing the terms of exclusion from 10 to 15 years, and can find nothing unreasonable in the I.G.'s decision to rely on it as one of the factors supporting the enhancement.

The term of incarceration to which Petitioner was sentenced in 2003 totaled eight months: four months in the custody of the Bureau of Prisons, and four months in supervised home detention. The Board's decision in Jeremy Robinson, supra, is again instructive: "In Jason Hollady, M.D., at 12, we determined that a nine-month incarceration with work release was 'relatively substantial' and more than 'token' incarceration." Jeremy Robinson, at 12, supra. Petitioner's was a term of more than "token" significance: I believe that it manifested the sentencing court's "relatively substantial" doubts of Petitioner's trustworthiness. In Jeremy Robinson, the term of incarceration was 366 days, and the Board held that incarceration long enough, with other factors, to support an extension of an exclusion from 5 years to 15 years, a three-fold increase amounting to 10 absolute years. I can find nothing unreasonable in the I.G.'s reliance on Petitioner's eight-month period of incarceration, and would not do so even if it and the factor previously addressed were the only factors the I.G. relied on to enhance the exclusion from 10 to 15 years.

Finally, the action of California authorities in revoking, then reinstating, then suspending Petitioner's certificate to practice medicine reflects a facet of this history entirely outside the responsibility and authority of federal authorities. It displays Petitioner as having been severely censured by his profession, having then been offered an opportunity at rehabilitation, and nevertheless remaining unable or unwilling to bring himself into compliance with its conditions or to be candid about the situation even now. P. Response, at 1; P. Ex. 1; c.f. I.G. Ex. 3, at 2. Against the backdrop of what appears without contradiction in this record as criminal recidivism in the field of health care fraud, the prior California administrative sanction casts further doubt on Petitioner's trustworthiness. I can find nothing unreasonable in the I.G.'s reliance on it as one of the factors supporting the enhancement, though I believe that the first two aggravating factors' combined effect makes this third one redundant to the enhancement. I can find no material--nor even any theoretical--diminution of the I.G.'s reasonableness in that regard if the 1985 exclusion is not relied on in the context of 42 C.F.R. � 1001.102(b)(6).

IV. Conclusion

For the reasons set out above the I.G.'s Motion for Summary Judgment must be, and it is, granted. The I.G.'s exclusion of Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a term of 15 years, pursuant to the terms of sections 1128(a)(1), 1128(c)(3)(B), and 1128(c)(3)(G) of the Act, 42 U.S.C. �� 1320a-7(a)(1), 1320a-7(c)(3)(B), and 1320a-7(c)(3)(G), is thereby sustained.

Richard J. Smith

Administrative Law Judge

1. Although Carrier Mills, supra, is a case arising from this forum's jurisdiction over nursing home compliance with Medicare and Medicaid participation requirements, its discussion of the analysis and standards to be applied in the context of summary disposition are applicable to the instant situation as well.