SUBJECT:

Krishnaswami Sriram, M.D.,

Petitioner,

The Inspector General.

DECISION

This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Affirmance of the I.G.'s determination to exclude the Petitioner herein, Krishnaswami Sriram, M.D., from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years. The I.G.'s Motion and determination to exclude Petitioner are based on the terms of section 1128(a)(1) of the Social Security Act (the Act), 42 U.S.C. � 1320a-7(a)(1). The facts in this case require that Petitioner be excluded for a five-year period. For that reason, I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

Krishnaswami Sriram, M.D., Petitioner, was licensed to practice medicine in the State of Illinois. On or about September 19, 2002, Dr. Sriram pleaded guilty to three felonies in United States District Court for the Northern District of Illinois. Petitioner's guilty pleas admitted one count of mail fraud, in violation of 18 U.S.C. � 1341 and 18 U.S.C. � 2, one count of health care fraud, in violation of 18 U.S.C. � 1347 and 18 U.S.C. � 2, and one count of making false statements on an income tax return, in violation of 26 U.S.C. � 7206(1).

A substantial period of time elapsed between the entry and acceptance of Petitioner's guilty pleas and Petitioner's final sentencing hearing on April 28, 2005. Some of the reasons for the delay appear in the transcript of that hearing, and they will be discussed briefly below. The sentencing judge made clear at the hearing that he believed a lenient sentence was called for, and sentenced Petitioner to a five-year term of probation. Petitioner was required to pay costs and assessments totaling $800, to perform 500 hours of community service, and to make restitution to the Medicare program of $1258.

As the terms of section 1128(a) of the Act, 42 U.S.C. � 1320a-7(a) require, the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. Section 1128(a)(1) of the Act mandates the exclusion, for a period of not less than five years, of "[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 . . . ", the Medicare program. On September 30, 2005, the I.G. notified Petitioner that he was to be excluded for the mandatory minimum period of five years pursuant to the terms of section 1128(a)(1) of the Act.

Acting through counsel, Petitioner timely sought review of the I.G.'s action by letter dated November 30, 2005. I convened a prehearing conference by telephone on February 1, 2006, pursuant to 42 C.F.R. � 1005.6. The I.G. expressed the intention of seeking summary disposition on written submissions, and I established a schedule for the filing of documents and briefs. All briefing is now complete, based on my Order of February 2, 2006. The record in this matter closed on May 9, 2006.

The evidentiary record on which I decide the issues before me contains four exhibits. The parties jointly proffered three exhibits marked Joint Exhibits 1-3 (Jt. Exs. 1-3). Petitioner timely proffered one exhibit, Petitioner's Exhibits 1 (P. Ex. 1). The I.G. has not objected to P. Ex. 1, and therefore they are all admitted as designated.

The legal issues before me are limited to those enumerated at 42 C.F.R. � 1001.2007(a)(1). In the specific context of this record they are:

1. Whether the I.G. has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Act; and

2. Whether the proposed five-year period of exclusion is unreasonable.

The controlling authorities require that both issues be resolved in favor of the I.G.'s position. Section 1128(a)(1) of the Act mandates Petitioner's exclusion, for his predicate conviction has been established. A five-year period of exclusion is reasonable as a matter of law, since it is the mandatory minimum period established by section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B).

III. Controlling Statutes and Regulations

(1) when a judgment of conviction has been entered against the individual . . . by a Federal . . . court, regardless of whether . . . the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual . . . by a Federal . . . court;

(3) when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal . . . court; or

(4) when the individual . . . has entered into participation in a . . . deferred adjudication . . . program where judgment of conviction has been withheld.

Act, section 1128(i)(1)-(4), 42 U.S.C. �� 1320a-7(i)(1)-(4). These definitions are repeated at 42 C.F.R. � 1001.2.

An exclusion based in section 1128(a)(1) is mandatory and the I.G. must impose it for a minimum period of five years. Section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B). The regulatory language of 42 C.F.R. � 1001.102(a) affirms the statutory provision. The I.G. has not sought to enhance the five-year mandatory minimum period by offering to prove any of the aggravating factors set out at 42 C.F.R. �1001.102(b). For that reason, I may not inquire into the existence, importance, or effect of any of the specific aggravating or mitigating factors set out at 42 C.F.R. � 1001.102(b) and (c).

IV. Findings and Conclusions

I find and conclude as follows:

1. On his pleas of guilty entered on or about September 19, 2002, in the United States District Court for the Northern District of Illinois, Petitioner Krishnaswami Sriram, M.D., was found guilty of the offenses of mail fraud, in violation of 18 U.S.C. � 1341 and 18 U.S.C. � 2, health care fraud, in violation of 18 U.S.C. � 1347 and 18 U.S.C. � 2, and false statements on income tax returns, in violation of 26 U.S.C. � 7206(1). Only the first two offenses are relevant to these proceedings. Jt. Ex. 1.

3. The pleas, finding of guilt, and judgment of conviction described above in Findings 1 and 2 constitute a "conviction" within the meaning of sections 1128(a)(1) and 1128(i)(1), (2), and (3) of the Act; and 42 C.F.R. � 1001.2.

4. A nexus and a common-sense connection exist between two of the criminal offenses to which Petitioner pleaded guilty, of which Petitioner was found guilty, and on which he was sentenced, as noted above in Findings 1 and 2, and the delivery of an item or service under Title XVIII of the Act. The two offenses related to the delivery of an item or service under Title XVIII are the violations of 18 U.S.C. � 1341 and 2, and of 18 U.S.C. � 1347 and 2. Jt. Exs. 2, 3; Berton Siegel, D.O., DAB No. 1467 (1994).

5. By reason of Petitioner's conviction, a mandatory basis exists for the I.G.'s exercise of authority, pursuant to section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs.

6. By reason of his conviction, Petitioner was subject to, and the I.G. was required to impose, the mandatory minimum five-year period of exclusion from Medicare, Medicaid, and all other federal health care programs. Section 1128(c)(3)(B) of the Act; 42 C.F.R. �1001.102(a).

7. On September 30, 2005 the I.G. notified Petitioner that he was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years, based on the authority set out in section 1128(a)(1) of the Act. Jt. Ex. 1.

9. Because the five-year period of Petitioner's exclusion is the mandatory minimum period provided by law, it is therefore not unreasonable. Section 1128(c)(3)(B) of the Act; 42 C.F.R. ��1001.102(a) and 1001.2007(a)(2).

10. There are no disputed issues of material fact and summary disposition is therefore appropriate in this matter. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Thelma Walley, DAB No. 1367 (1992); 42 C.F.R. � 1005.4(b)(12).

V. Discussion

Those events satisfy the definitions of "conviction" set out at sections 1128(i)(1), 1128(i)(2), and 1128(i)(3) of the Act. Petitioner's guilty plea was accepted, satisfying the definition at section 1128(i)(3) of the Act. The court found Petitioner guilty upon his plea, satisfying the definition at section 1128(i)(2) of the Act. A judgment of conviction was entered against Petitioner, satisfying the definition at section 1128(i)(1) of the Act. Jt. Ex. 3; P. Ex. 1. The I. G. has established the first essential element.

The plea agreement also establishes the second essential element, the requirement that the criminal offense must have been related to the delivery of an item or service under a protected program. The plea agreement provides details of the specific transaction by which Petitioner used the mails to obtain payment from a Medicare contractor for services not actually delivered. Jt. Ex. 2, at 5-6. These details are more than sufficient to show a nexus and common-sense connection among two of the criminal offenses of which Petitioner was convicted and the delivery of an item or service under Title XVIII of the Act. Moreover, the submission of false billings to the Medicare and Medicaid programs has been consistently held to be a program-related crime within the reach of section 1128(a)(1). Jack W. Greene, DAB No. 1078 (1989), aff'd sub nom. Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990); Kennard C. Kobrin, DAB CR1213 (2004); Norman Imperial, DAB CR833 (2001); Egbert Aung Kyang Tan, M.D., DAB CR798 (2001); Mark Zweig, M.D., DAB CR563 (1999); Alan J. Chernick, D.D.S., DAB CR434 (1996). While I find the required nexus and common-sense connection between the criminal act and the program present here as a matter of fact, Berton Siegel, D.O., DAB No. 1467, I believe that Petitioner's conviction for violating 18 U.S.C. � 1347 is a program-related crime as a matter of law. The I.G. has proved the second essential element .

Petitioner does not contest that the essential elements have been established, but objects to the proposed exclusion and to its length on equitable grounds. He points out, and his argument is supported by the transcript of the sentencing hearing, that the plea agreement represented a very substantial reduction in the number of violations to which he was exposed, and an equally-substantial reduction in the amount of damage or loss alleged to have been suffered by the federal health programs involved. P. Ex. 1. Petitioner is candid in his expression that he "[S]eeks equity from the ALJ. None of the decisional authority promulgated by ALJ's or the Departmental Appeals Board serve to estop the ALJ from considering equitable factors in denying summary affirmance, or in reversing the exclusion." P. Br., at 1.

The five-year period of exclusion proposed in this case is the irreducible minimum required by section 1128(c)(3)(B) of the Act. As a matter of law it is not unreasonable. 42 C.F.R. �1001.2007(a)(2). Neither the Departmental Appeals Board nor I may reduce it. Mark K. Mileski, DAB No. 1945; Salvacion Lee, M.D., DAB No. 1850.

VI. Conclusion

For the reasons set out above, the I.G.'s Motion for Summary Affirmance should be, and it is, GRANTED. The I.G.'s exclusion of Petitioner Krishnaswami Sriram, M.D., from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years, pursuant to the terms of section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), is thereby sustained.

Richard J. Smith

Administrative Law Judge