SUBJECT:

Sawtantra Chopra, M.D., a/k/a Sawtantra Kumar Chopra,

Petitioner,

The Inspector General

DECISION

In this case, Sawtantra Chopra, M.D., a/k/a Sawtantra Kumar Chopra (Petitioner), has challenged the Inspector General's (I.G.'s) determination to exclude him from participation in Medicare, Medicaid, and all federal health care programs for a period of 10 years pursuant to section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C. � 1320a-7(a)(1). For the reasons discussed below, I find that the I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act, and that the 10-year exclusion falls within a reasonable range.

I. Background

By letter dated June 30, 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 10 years. The I.G. advised Petitioner that he was being excluded pursuant to section 1128(a)(1) of the Act because of his conviction, in the United States District Court for the Eastern District of California, of a criminal offense related to the delivery of an item or service under the Medicare and Medicaid programs. By letter dated August 26, 2003, Petitioner requested a hearing and the case was assigned to me.

On November 17, 2003, I held a prehearing conference, by telephone, at which the parties agreed that this matter could be resolved based on the written submissions. On December 31, 2003, the I.G. filed a Motion for Summary Affirmance and brief in support thereof (I.G. Br.). The I.G. filed four proposed exhibits (I.G. Exs. 1 - 4) as part of the submission. On January 30, 2004, Petitioner filed his Opposition to Inspector General's Motion for Summary Affirmance (P. Br.) and appended five proposed exhibits (P. Exs. 1 - 5). Based on the parties' requests to file replies, on February 20, 2004, the I.G. filed The Inspector General's Reply Brief in Support of Motion for Summary Affirmance (I.G. R. Br.) with one additional proposed exhibit (I.G. Ex. 5). On March 3, 2004, Petitioner filed his Sur-Reply in Support of Opposition to Inspector General's Motion for Summary Affirmance (P. SR. Br.). With this brief, Petitioner submitted a complete copy of Petitioner's change of plea and judgment and sentence hearings, a part of which is in the record as P. Ex. 1. I am marking this submission as P. Ex. 6. On March 10, 2004, the I.G. requested leave, and I allowed the I.G. to file, The Inspector General's Response to Petitioner's Sur-reply Brief (I.G. SR. Br.).

In the absence of objection, I receive into evidence I.G. Exs. 1 - 5 and P. Exs. 2 - 5. The I.G. moved to strike P. Ex. 1 - and by inference P. Ex. 6 - on the ground they are irrelevant. I.G. R. Br. at 6, n.4. I find P. Exs. 1 and 6 to be relevant and, in order to have a complete record, I deny the I.G.'s motion and admit both P. Ex. 1 and P. Ex. 6 into the record. ⁽¹⁾ My decision, as discussed below, is based on the evidence of record and the arguments of the parties.

II. Issue

On the merits, Petitioner does not dispute that the I.G. is authorized to exclude him for the minimum mandatory period of five years. P. Br. at 1. He argues that the aggravating factors do not justify an exclusion longer than five years. The sole issue before me, therefore, is whether the part of the exclusion which is in excess of the five-year mandatory minimum (another five years) is reasonable. 42 C.F.R. � 1001.2007.

III. Statutory and Regulatory Background

Section 1128(a)(1) of the Act authorizes the Secretary of Health & Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act):

[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(1) of the Act shall be for a minimum period of not less than five years.

Specific aggravating factors that are not offset by specified mitigating factors may justify increasing the period of exclusion. 42 C.F.R. � 1001.102. The following four factors, among others, may serve as a basis for lengthening the period of exclusion: (1) the acts resulting in the conviction, or similar acts, resulted in a financial loss to a government program or to one or more entities of $5,000 or more (42 C.F.R. � 1001.102(b)(1)); (2) the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more (42 C.F.R. � 1001.102(b)(2)); (3) the sentence imposed by the court included incarceration (42 C.F.R. � 1001.102(b)(5)); and (4) the individual has been the subject of any other adverse action by any federal, state, or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for imposition of the exclusion (42 C.F.R. � 1001.102(b)(9)).

Mitigating factors may be considered as a basis for reducing the period of exclusion only if aggravating factors justify an exclusion longer than five years. The only factors considered mitigating are: (1) the individual was convicted of three or fewer misdemeanor offenses and the resulting financial loss to Medicare or a state health care program was less than $1,500; (2) the record in the criminal proceedings, including the sentencing documents, demonstrates that the court determined that the individual had a mental, physical, or emotional condition before or during the commission of the offense that reduced the individual's culpability; or (3) the individual'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).

The Secretary has delegated to the I.G. the authority to impose exclusions. 42 C.F.R. � 1001.401(a). So long as the amount of time chosen for the exclusion imposed on Petitioner by the I.G. is within a reasonable range, based on demonstrated criteria, I have no authority to change it. Joann Fletcher Cash, DAB No. 1725 (2000), quoting 57 Fed. Reg. 3298, 3321 (1992).

IV. Discussion

Petitioner specifically contested only paragraphs 19 - 21 of the I.G.'s Statement of Proposed Findings of Fact and Conclusions of Law. P. Br. at 1. Given Petitioner's concession, and after my review of the evidence, I will consider the I.G.'s proposed findings 1 - 18 as stipulated facts and will accept them as part of my findings. I set them forth below, un-edited, to provide continuity to this decision.

1. During the period relevant to this case, Petitioner was a licensed medical doctor specializing in pulmonology and was practicing within the Eastern District of California. I.G. Exs. 1 at 1-2; 4, at 2.

2. On February 22, 2002, in the United States District Court, Eastern District of California, Petitioner was charged in a one count information filed by the United States Attorney's Office with violating Title 42, United States Code, section 1320a-7b(b)(1)(A), a felony, for receiving illegal kickbacks in a Medicare program. I.G. Ex. 1.

3. On or about May 28, 2002, Petitioner pled guilty to the one count information pending against him. I.G. Ex. 2.

4. On or about October 21, 2002, the United States District Court, Eastern District of California, entered a judgment of conviction against Petitioner for one count of receiving illegal kickbacks in a Medicare program in violation of 42 U.S.C. � 1320a-7b(b)(1)(A). I.G. Ex. 3 at 1.

5. Petitioner was sentenced to 36 months probation, including home detention for a period of 180 days, and an order to pay a $75,000 fine. Id. at 2-3.

6. By letter dated June 30, 2003, the OIG informed Petitioner that he would be excluded from participation in the Medicare, Medicaid, and all Federal health care programs for a period of 10 years pursuant to section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1). See Letter to Petitioner from William J. Hughes (June 30, 2003).

7. Petitioner was also informed that his exclusion was greater than the minimum period of five years under section 1128(c)(3)(B) of the Act because of the following circumstances: (1) the sentence imposed by the court included incarceration; and (2) Petitioner was the subject of an adverse action by the Medical Board of California based on the same set of circumstances that serve as the basis for imposition of the exclusion. Id. See 42 C.F.R. �� 1001.102(b)(5) and (9).

8. In order to sustain its exclusion pursuant to section 1128(a)(1) of the Act, the OIG must demonstrate that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or under any State health care program. 42 U.S.C. � 1320a-7a(a)(1).

9. The facts of Petitioner's case satisfy all the statutory requirements for a mandatory exclusion under section 1128(a)(1) of the Act.

10. Petitioner's plea of guilty, the acceptance of that plea by the District Court, and the subsequent entry of judgment against him constitute a "conviction" within the meaning of sections 1128(i)(1) and (3) of the Act. See John V. Wozniak, DAB CR1108 (2003); see also Handel J. Roberts, M.D. DAB No. CR911, at 5 (2002); Lloyd G. Bayme, M.D., DAB No. CR876, at 5 (2002).

11. Petitioner was convicted of a criminal offense with the meaning of section 1128(a)(1) of the Act. See Efstathios Mark Varidin, D.O., DAB CR971 (2002) (it is a well settled principle that a conviction of a criminal offense for knowingly and willfully accepting a kickback for referring Medicare or other federally funded health care items or services is a crime that falls within the scope of section 1128(a)(1) of the Act); see also Jose Grau, M.D., DAB CR930 (2002); Boris Lipovsky, M.D., DAB No. 1363 (1992).

12. Petitioner's conviction related to the delivery of an item or service within the meaning of section 1128(a)(1) of the Act. See Efstathios Mark Varidin, D.O., DAB CR971(2002) (offense is related to the delivery of an item or service under Medicare because referral of a Medicare service was an essential element of Petitioner's crime).

13. The regulations at 42 C.F.R. � 1001.102, provide for the lengthening of a section 1128(a)(1) exclusion from the mandatory minimum period of five years when aggravating factors exist:

(5) The sentence imposed by the court included incarceration; and

(9) The individual was the subject of an adverse action by any State government agency based on the same set of circumstances that serve as the basis for imposition of the exclusion.

See 42 C.F.R. �� 1001.102(b)(5) and (9).

14. The regulations define "incarceration" as "imprisonment or any type of confinement with or without supervised release, including, but not limited to, community confinement, house arrest and home detention." 42 C.F.R. � 1001.2.

15. Petitioner's sentence of 180 days of home detention falls within the scope of 42 C.F.R. �� 1001.2 and 1001.102(b)(5). I.G. Ex. 3, at 2-3.

16. On or about July 24, 2003, the State Medical Board of California (Board) entered an Order, effective on August 25, 2003, that revoked Petitioner's license to practice medicine in the State of California. I.G. Ex. 4, at 5. In the same Order, the Board stayed the revocation of Petitioner's license and placed him on probation for a period of five years. Id. As part of the terms of probation, Petitioner was suspended from practicing medicine for a period of 30 days from September 16, 2003 to October 15, 2003. Id.

17. The Board's decision was based on the same set of circumstances that formed the basis of Petitioner's conviction for receiving illegal kickbacks for referring some of his patients to Family Home Medical and, thus, falls within the scope of 42 C.F.R. � 1002(b)(9). Compare I.G. Ex. 4 at 4 and 15 with I.G. Exs. 1 at 2-3; 2 at 1; and 3 at 1.

18. Two aggravating factors exist in the Petitioner's case under 42 C.F.R. �� 1001.102(b)(5) and (9).

I.G.'s Statement of Proposed Findings of Fact and Conclusions of Law at 1 - 3.

Petitioner objects to only three of the I.G.'s proposed findings of fact, I.G.'s findings 19 - 22. Id. at 3 - 4. Finding 19 states "[t]he aggravating factors established by the I.G. demonstrate that Petitioner is not trustworthy to be a participant in Federal health care programs." Finding 20 states "[t]here are no mitigating factors present in Petitioner's case." And, finding 21 states "[a] 10-year exclusion of Petitioner is reasonable." With regard to the objections, Petitioner first disputes that the aggravating factors established by the I.G. demonstrate that he is not trustworthy to be a participant in federal health care programs. Second, he contends there are "mitigating" factors present in his case. Third, Petitioner argues that his 10-year exclusion is unreasonable given the circumstances of his case.

Petitioner contends that simply because he was sentenced to home detention - admittedly an aggravating factor of incarceration - does not justify adding five years to the mandatory minimum. Petitioner argues that the I.G. failed to acknowledge the explicit wishes of the federal judge that imposed the sentence - that the punishment was not intended to limit Petitioner's practice of medicine. P. Br. at 3; P. SR. Br. at 3 - 4; P. Ex. 1. Petitioner claims that, during sentencing, the judge repeatedly stated that if the sentence did result in a restriction of Petitioner's practice, the judge would "want to hear about it." Id. One may infer, according to Petitioner, that had the judge been aware that an imposition of home detention would limit Petitioner's Medicaid practice, the judge would have imposed some alternative punishment. Petitioner concedes the I.G. is not required to take these circumstances into account but, nonetheless, Petitioner points to the I.G.'s discretion to regard Petitioner's home detention as neutral rather than as an aggravating factor. Id.

Petitioner also contends that he is the only pulmonologist in Stanislaus County who is willing to treat the beneficiaries of federally funded programs on any consistent basis. P. Br. at 3. Petitioner argues that his status as a sole community provider and his well-respected reputation within the medical community are important points to be taken into account in determining whether the 10-year exclusion is reasonable. Id. at 4. He argues that the medical needs of local patients in Stanislaus County, whose needs are unconnected with the Petitioner's past indiscretion, are of paramount importance and cannot be ignored in determining the reasonableness of any exclusionary order.

Petitioner further argues that he is not an untrustworthy provider deserving of the 10-year term of exclusion. He states the I.G. fails to acknowledge that Petitioner's act was an isolated incident and was the product of a "sting" operation conducted over a period of four months. Petitioner contends the evidence is non-existent that he initiated or was otherwise disposed to engage in any unlawful activity. Id.

In response to Petitioner's arguments, the I.G. contends the following:

�The District Court judge's statements during sentencing are not relevant to this proceeding. I.G. R. Br. at 5 - 6.

�In any event, the sentencing judge's statements are more ambiguous than stated by Petitioner. Id.

�An aggravating factor must be considered in determining whether a mandatory exclusion should be lengthened. Id. at 6.

�An exclusion would not prevent Petitioner from practicing medicine but would mean only that the federal government would not pay for items or services provided by him. Id. at 6 - 7.

�Neither being a sole provider in an underserved community nor having an excellent reputation in the health care community are included in the regulations as mitigating factors that can be used to counter the presence of aggravating factors in determining the appropriate length of an exclusion. Id. at 7 - 9.

�Petitioner has presented no evidence that his arrest and conviction were the result of a "sting" operation and an isolated incident. Id. at 11 - 12.

Petitioner responds by contending that this tribunal can look at the gravity of the facts surrounding the aggravating factors to determine the weight to be given the aggravating factors. P. SR. Br. at 2.

I make the following findings regarding the disputed issues in this case, as stated in the numbered paragraphs below. I explain each of my findings based on the record evidence and the statute and implementing regulations.

19. The sentencing judge's statements regarding impediments to Petitioner's practice of medicine are irrelevant in this proceeding.

With respect to Petitioner's argument that the judge who sentenced Petitioner did not want Petitioner's ability to practice medicine affected by the sentence, I cannot disregard the regulations set forth in 42 C.F.R. Part 1001 because of what the judge may or may not have preferred. If the judge "wants to hear about" what has occurred with respect to Petitioner's exclusion, it is Petitioner's responsibility to advise the judge. It is not an issue I can address in this proceeding.

Moreover, after reading the judge's statements during sentencing, I cannot conclude that the judge would have sentenced Petitioner any differently had he known any form of incarceration - including home detention - would increase Petitioner's exclusion period. Further, I cannot even conclude that the judge was unaware of how the sentencing might be interpreted by other governmental agencies. Neither counsel at the sentencing hearing specifically clarified for the court how exclusion is implemented by the I.G. or the import of incarceration as an aggravating factor. P. Ex. 6. On the other hand, the sentencing judge does indicate during sentencing that he has handled "the larger chunk" of the "hundreds of Medi-Cal fraud cases in this Court." P. Ex. 6, at 23. I simply cannot, therefore, assume the judge knew nothing about Medicare exclusion and infer that the judge would not have sentenced Petitioner to some incarceration because, under the regulations for exclusion, a sentence of incarceration could have increased the exclusion period beyond five years.

I also point out that Petitioner's ability to practice medicine has been severely affected by the mandatory five-year exclusion and, yet, Petitioner does not rely on the judge's statements during sentencing to suggest that the mandatory exclusion should not apply. ⁽²⁾ I simply cannot assume that the sentencing judge would not have imposed home detention had he known that it would increase Petitioner's exclusion beyond five years.

20. The I.G. may increase a period of exclusion beyond the mandatory five years and, unless that exclusion period is beyond a reasonable range, based on the proven aggravating and mitigating factors listed in the regulations and used in the I.G.'s determination, I cannot alter it.

Section 1001.102(b) of 42 C.F.R. states that "[a]ny of the following factors may be considered to be aggravating and a basis for lengthening the period of exclusion." While the regulations do not state that the I.G. must lengthen the period of exclusion if one or more aggravating factors exist, the ALJ is limited to determining whether the I.G.'s imposed exclusion period is within a reasonable range. As part of that analysis, the ALJ is directed to give deference to the I.G.'s expertise in the process of protecting the integrity of federal heath care programs. Joann Fletcher Cash, DAB No. 1725; Stacy Ann Battle, D.D.S., and Stacy Ann Battle, D.D.S., P.C., DAB No. 1843 (2002).

As stated in finding No. 18, supra, there are two aggravating factors presented in this case. That is, the I.G. chose to consider, in determining that five additional years of exclusion are appropriate in this case, the aggravating factors of: (1) Petitioner's sentence including incarceration, as incarceration is defined in the regulations; and (2) the adverse action taken against Petitioner by the Medical Board of California.

21. There are two aggravating factors and no mitigating factors present in this case.

Section 1001.102(c) of 42 C.F.R. provides that only the factors specified in this part of the regulations may be considered to counterbalance aggravating factors in determining the length of exclusion beyond the mandatory five-year period. As conceded by the Petitioner, none of the three specified mitigating factors are present in this case.

22. The regulations do not provide any specific guidance to the ALJ in determining how much weight to give each aggravating factor. To determine the reasonableness of the additional period of exclusion, I must look at the context and nature of the aggravating factors.

Petitioner contends that certain factors which might be described to fit within the common usage of the word "mitigating," can be considered in looking at the context and nature of the aggravating factors and, thus, in assigning the reasonable weight of the aggravating factor. I agree with Petitioner. For example, the length of incarceration in general or in relation to the potential for jail time may be considered in certain situations in determining the reasonableness of the I.G.'s additional exclusion time. John (Juan) Urquijo, DAB No. 1735 (2000). As another example, the relative severity of a medical board's action might be considered in weighing the reasonableness of an additional period of exclusion.

Moreover, even though the facts behind a conviction cannot be retried in determining whether a basis for an exclusion exists (42 C.F.R. � 1001.2007(d)), I agree with Petitioner that the gravity of the facts surrounding a conviction can be evaluated to determine the weight that reasonably can be associated with aggravating factors. John (Juan) Urquijo, DAB No. 1735.

While I am willing to consider facts surrounding a conviction in determining the weight to be given aggravating factors, I will only consider facts actually associated with a listed aggravating factor (Keith Michael Everman, D.C., DAB No. 1880 (2003)) and facts established by evidence, not mere assertions. Petitioner has provided no evidence whatsoever that his conviction resulted from a "sting" operation, or that he was not otherwise inclined to accept $2500 per month over a several month period for referral of patients to another provider.

I think it is fairly well established from prior interpretations of the statute and regulations, moreover, that being the sole source of medical services in an underserved community and, in general, having an excellent reputation in the medical community, are not factors that can be used to counterbalance the effect of aggravating factors and are irrelevant in a determination of the reasonableness of the length of an exclusion. Such facts have no bearing on any one of the aggravating or mitigating factors specified in the regulations. Keith Michael Everman, D.C., DAB No. 1880 (2003). Further, the fact that there is a totally separate and distinct process specified in the regulations for waiver of an exclusion if the excluded provider is the sole source of essential specialized services in a community suggests to me that it should not be considered in determining the reasonableness of an imposed period of exclusion. 42 C.F.R. � 1001.1801.

23. Five additional years of exclusion beyond the five-year mandatory period of exclusion is not unreasonable in this case.

In this case, the aggravating factors the I.G. considered are not disputed and I agree those factors are present. Furthermore, Petitioner did not prove that the I.G. failed to consider a mitigating factor. Although the sentence of 180 days of home detention is at the lower range of potential sentences (five years imprisonment) that could have been imposed against Petitioner, it is not the lowest, e.g., a short probation period. The sentencing judge clearly wanted to give Petitioner some time to think about what he had done. P. Ex. 6, at 24 - 25. 180 days of home detention is a reflection that the Petitioner's criminal activities were not to be dealt with by a slap on the wrist.

Similarly, the Medical Board of California revoked Petitioner's license to practice medicine but stayed the revocation during a five year probation period. While staying the revocation suggests the Board did not view Petitioner's actions as very serious, the Board also suspended Petitioner from the practice of medicine for 30 days. I.G. Ex. 4, at 5. I cannot conclude, therefore, that little weight should be assigned to this aggravating factor.

Moreover, when I consider whether Petitioner is trustworthy to maintain the integrity of federal health care programs, I question whether Petitioner can be counted upon not to repeat his conduct. The sentencing judge pointed out that he could not understand Petitioner's motive in his criminal activities because Petitioner is a very wealthy man who ostensibly had no need for the additional money he received in kickbacks. P. Ex. 6, at 23 - 25. A person who would engage in such activities without any apparent need for the money may again attempt to obtain money from health care programs illegally. I cannot conclude that the I.G. overweighted the aggravating factors in this case. I determine, therefore, that an additional five-year period of exclusion beyond the mandatory five years is within a reasonable range.

V. Conclusion

I conclude that the I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act, and that the 10-year exclusion falls within a reasonable range.

Anne E. Blair

Administrative Law Judge

1. I note here that, on February 17, 2004, I received a letter from Del Morris, M.D., the Medical Director of the Stanislaus County Health Services Agency. Dr. Morris wrote in support of Petitioner and opined that his exclusion would be a severe hardship for many patients and that his reinstatement would have a positive effect on some of Dr. Morris' sickest patients. I am retaining this letter as part of the record of this case, but I am not considering it with regard to the issues in the same way that, below, I am not considering similar testimonials to Petitioner's medical practice which I have admitted as exhibits in the case.

2. I find the I.G.'s assertion that Petitioner can still practice medicine even if excluded from Medicare and Medicaid to be disingenuous. I suspect that it would be extremely difficult for Petitioner to practice medicine in a way that will not involve hospitals, HMOs, or patients receiving federal health care dollars in some form.