SUBJECT:

Nathubhai Shah, M.D.,

Petitioner,

The Inspector General

DECISION

Nathubhai Shah, M.D. (Petitioner), is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. � 1320a-7(a)(1)), effective February 19, 2004, based upon his conviction for one count of health care fraud. There is a proper basis for exclusion. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)).

I. PROCEDURAL HISTORY

Petitioner requested a hearing by letter dated February 12, 2004. Petitioner requests a hearing based on the January 30, 2004 notice from the I.G. that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of five years due to his conviction of a criminal offense related to the delivery of an item or service under the Medicare program.

The case was assigned to me for hearing and decision on February 24, 2004. On March 16, 2004, a prehearing conference was convened by telephone, the substance of which is recorded in my order of March 19, 2004. Petitioner elected to proceed without counsel. Counsel for the I.G. requested the opportunity to submit a motion for summary judgment and a briefing schedule was set. The I.G. filed a motion for summary affirmance ⁽¹⁾ with supporting brief and I.G. exhibits (I.G. Ex. 1 through 5) on April 15, 2004. Petitioner submitted a response in the form of a letter dated April 27, 2004, with 11 supporting documents. ⁽²⁾ The I.G. filed a reply brief on June 1, 2004, with proposed findings of fact and conclusions of law. No objections have been made to the exhibits submitted and all are admitted as evidence.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. FINDINGS OF FACT

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the parties' pleadings and the exhibits admitted.

1. The I.G. notified Petitioner by letter dated January 30, 2004, that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of five years due to his conviction of a criminal offense related to the delivery of an item or service under the Medicare program. I.G. Ex. 1

2. Petitioner requested a hearing by letter dated February 12, 2004. I.G. Ex. 5.

3. Petitioner pleaded guilty to one count of receiving Medicare kickbacks on about January 1, 1998, in violation of 42 U.S.C. � 1320, and one count of income tax evasion on about January 1, 1998, in violation of 26 U.S.C. � 7201. Judgment was entered against Petitioner in the United States District Court for the Southern District of New York on June 17, 2003, and he was sentenced to two years probation, a $10,000 fine, and a special assessment of $200.00. I.G. Ex. 4.

B. CONCLUSIONS OF LAW

1. Petitioner's request for hearing was timely and I have jurisdiction.

2. Summary judgment is appropriate.

3. Petitioner was convicted within the meaning of section 1128(i)(3) of the Act (42 U.S.C. � 1320a-7(i)(3)).

4. Conviction of receiving Medicare kickbacks in violation of 42 U.S.C. � 1320, a provision of the Social Security Act, is a conviction related to the delivery of an item or service under Medicare within the meaning of section 1128(a)(1) of the Act.

5. Pursuant to section 1128(a)(1) of the Act, the I.G. must exclude anyone convicted of an offense related to the delivery of an item or service under Medicare from participation in Medicare, Medicaid, and all federal health care programs.

6. If there is a basis for a mandatory exclusion under section 1128(a) of the Act, the convicted individual must be excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of not less than five years. Act, section 1128(c)(3)(B); 42 C.F.R. � 1001.102(a).

7. The Secretary, the I.G., and I have no authority to reduce the period of exclusion below the minimum five years specified by law if the exclusion is mandatory under section 1128(a) of the Act.

8. Petitioner's period of exclusion begins to run February 19, 2004, 20 days after the date of the I.G.'s January 30, 2004 exclusion letter.

III. ANALYSIS

A. ISSUES

The Secretary of Health and Human Services (Secretary) has by regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and,

Whether the length of the exclusion is unreasonable.

42 C.F.R. � 1001.2007(a)(1). The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. � 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. � 1005.15(b) and (c).

B. APPLICABLE LAW

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. � 1320a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction.

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual convicted of a criminal offense related to the delivery of an item or service under the Medicare or Medicaid program or any state health care program.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. � 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c). Section 1001.2002 of 42 C.F.R. provides that a period of exclusion begins to run 20 days after the date of the I.G.'s exclusion letter.

C. DISCUSSION

Petitioner's right to a hearing by an ALJ and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. � 1320a-7(f)). Pursuant to section 1128(f) of the Act, an individual or entity subject to exclusion is entitled to notice and hearing to the same extent as provided by section 205(b) of the Act. An oral hearing is contemplated. See Section 205(b) of the Act; 42 C.F.R. �� 1005.2(a), 1005.3(a), 1005.4(a) and (b), 1005.9, 1005.15, and 1005.16. However, an oral hearing is not required where the parties agree to submit the case for my decision on a stipulated record or where both parties waive appearance at an oral hearing and submit the case on documentary evidence and written argument. 42 C.F.R. � 1005.6(b)(4) and (5). Further, no hearing is necessary where all issues may be resolved on a motion for summary judgment as authorized by 42 C.F.R. � 1005.4(b)(12). Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 2 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); see also, New Millennium CMHC, Inc., DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000).

This case involves no dispute as to the facts that are the basis for the exclusion action. Further, the length of the period of exclusion is specified by statute and no resolution of factual disputes, if any existed, is necessary for a decision. Accordingly, summary judgment is appropriate.

1. There is a basis for exclusion.

There is no dispute that Petitioner was convicted, pursuant to his guilty pleas, of one count of receiving Medicare kickbacks on about January 1, 1998, in violation of 42 U.S.C. � 1320, and one count of income tax evasion on about January 1, 1998, in violation of 26 U.S.C. � 7201. Judgment was entered against Petitioner in the United States District Court, Southern District of New York, on June 17, 2003, and he was sentenced to two years probation, a $10,000 fine, and a special assessment of $200.00. I.G. Ex. 4.

There is no question that the District Court's acceptance of Petitioner's guilty pleas, and the judgment of conviction entered against him, amounted to a conviction within the meaning of section 1128(i)(3) of the Act. There is also no question that a conviction of receiving Medicare kickbacks in violation of 42 U.S.C. � 1320, a provision of the Social Security Act, is a conviction related to the delivery of an item or service under Medicare within the meaning of section 1128(a)(1) of the Act. In section 1128(a)(1) of the Act, Congress dictated that the I.G. must exclude anyone convicted of an offense related to the delivery of an item or service under Medicare from participation in Medicare, Medicaid, and all federal health care programs.

2. A five-year period of exclusion is the minimum allowed by law.

In his request for hearing and his response to the I.G. motion, Petitioner indicates his desire to have the period of exclusion reduced to two years. Petitioner discusses in his response to the I.G. motion several factors he believes justify such a reduction, including the fact that he was sentenced to two years probation, he cooperated with authorities, he completed required training and community service, he is productive and has not been cited with any violations since those in 1998, and he has appreciative patients. See also P. Exs. 1-11.

Petitioner's evidence and arguments cannot provide a basis for reducing his period of exclusion to a period of less than five years. Congress directed that, when there is a basis for a mandatory exclusion under section 1128(a) of the Act, the convicted individual must be excluded from participation in Medicare, Medicaid and all federal health care programs for a period of not less than five years. Act, section 1128(c)(3)(B); 42 C.F.R. � 1001.102(a). The Secretary, the I.G., and I have no authority to reduce the period of exclusion below the minimum five years specified by law.

IV. CONCLUSION

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years, effective February 19, 2004.

KEITH W. SICKENDICK

Administrative Law Judge

1. I construe the motion for summary affirmance to be a motion for summary judgment as there has been no waiver of oral hearing and the regulations recognize no action other than decision after oral hearing, decision on pleadings after waiver of oral hearing, or summary judgment. See 42 C.F.R. �� 1005.2, 1005.3, 1005.4, 1005.6(b)(5). This case may also have been subject to a motion to dismiss pursuant to 42 C.F.R. � 1005.2(e)(4) on grounds that the request for hearing raises no issue that may be properly addressed in a hearing. However, in light of the I.G.'s choice of a motion for summary judgment, I will exercise jurisdiction and discuss the merits of the request.

2. Petitioner's documents were not marked as exhibits. For ease of reference I have marked the documents as Petitioner's exhibits (P. Ex.) as follows:

P. Ex. 1 - I.G. Motion & Brief without exhibits attached

P. Ex. 2 - Letter from Rev. John W. Aiken, undated

P. Ex. 3 - Letter from Shameer K. Mohamed, dated August 14, 2003

P. Ex. 4 - Letter from Don Bruce, dated June 21, 1989

P. Ex. 5 - Internet document, Essay for Shah, Nathubhai

P. Ex. 6 - Letter from Joseph C. d'Oronzio, dated February 16, 2004

P. Ex. 7 - Certificate, The ProBe Program to Nathubhai Shah, M.D.

P. Ex. 8 - Article, The Korea Times

P. Ex. 9 - Article, Korean Newspaper

P. Ex. 10 - Brochure, Chinese for Christ New York Church

P. Ex. 11 - Letter from Wallingford Lee, undated

P. Exs. 8 and 9 have not been translated from the Korean language and I do not read Korean. However, given the disposition of this case, I conclude that translation is unnecessary. I accept as accurate Petitioner's statements regarding the content of those articles.