SUBJECT:

Stanley Junious Benn,

Petitioner,

The Inspector General.

The facts in this case fully support the I.G.'s determination to exclude Petitioner, and fully support the reasonableness of the I.G.'s determination to enhance the five-year mandatory minimum period of exclusion to 15 years. For those reasons, I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

Stanley Junious Benn, Petitioner pro se, was the owner and operator of a business that purported to provide mental health counseling to children and adults in Baltimore County, Maryland. The business was certified as a provider to the Maryland Medicaid program, and all of the business's clients were Medicaid beneficiaries. Petitioner defrauded and abused the program by submitting over 3600 claims to the Medicaid program for services not rendered. This conduct led on July 12, 2004 to Petitioner's being indicted and charged in the Circuit Court for Baltimore County, Maryland, with one count of Felony Medicaid Fraud, in violation of MD. CODE, CRIM. LAW � 8-509, and one count of Felony Theft from the Medicaid program, in violation of MD. CODE, CRIM. LAW � 7-104.

Petitioner appeared with counsel in Circuit Court on March 7, 2005, and pleaded guilty to the first count of the Indictment. Sentence was imposed on May 11, 2005: Petitioner was sentenced to three years in prison and was ordered to make restitution to the Maryland Department of Health and Mental Hygiene in the sum of $249,406. The second count of the Indictment was dismissed nolle prosequi.

The Maryland Department of Health and Mental Hygiene, Office of Health Services, notified Petitioner on June 14, 2005, that he was to be removed from the Maryland Medicaid program effective July 14, 2005, and was ineligible to participate as a provider to that program thereafter. The letter informing Petitioner of his removal and ineligibility was explicitly based on his conviction and sentence.

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate 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 or under any State health care program." On August 31, 2005, the I.G. notified Petitioner that he was to be excluded pursuant to the terms of section 1128(a)(1) of the Act for a period of 15 years. Acting pro se, Petitioner sought review of the I.G.'s action by letter of September 14, 2005.

Efforts to arrange a prehearing conference by telephone pursuant to 42 C.F.R. � 1005.6 failed. The reasons for the failure of those efforts appear in correspondence addressed to Petitioner on December 21, 2005 and February 8, 2006, and in correspondence from him dated January 10, 2006. Accordingly, I established procedures for bringing the case to resolution in my Order of February 28, 2006. That Order contemplated that the case could likely be decided on written submissions, and I established a schedule for the submission of documents and briefs. That schedule was revised by my Order of July 6, 2006, for reasons set out therein. The briefing cycle established by the latter Order is complete, and the record in this case closed on August 7, 2006, without Petitioner's having submitted a final brief. Notwithstanding the terms of the July 6, 2006 Order, and with apparent indifference to the schedule established in it, Petitioner submitted a letter dated September 5, 2006, opening with the sentence "Please be informed that I am giving notice of intent not to file a Response."

The I.G. has submitted four exhibits, marked I.G. Exhibits 1-4 (I.G. Exs. 1-4). Petitioner has not objected to them, and they are admitted to the record of this case as designated. Petitioner has submitted one unmarked exhibit of his own during the briefing cycle. It is a 28-page transcript of the proceedings in the Circuit Court on March 7, 2005, and I have designated it Petitioner's Exhibit 1 (P. Ex. 1). It is admitted with that designation.

II. Issues

The issues before me are limited to those noted at 42 C.F.R. � 1001.2007(a)(1). In the 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 15-year length of the 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 since his predicate conviction has been established. A five-year period of exclusion is the minimum period established by section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B). The enhancement of that period to 15 years is not unreasonable, since all four of the aggravating factors relied on by the I.G. to enhance the period are fully demonstrated in the record before me, and no mitigating factors have been demonstrated or suggested.

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), requires the mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any "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." Title XVIII of the Act is the Medicare program. The terms of section 1128(a)(1) are restated somewhat more broadly in regulatory language at 42 C.F.R. � 1001.101(a).

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual . . . by a . . . State . . . court," Act, section 1128(i)(1); "when there has been a finding of guilt against the individual . . . by a

. . . State . . . court," Act, section 1128(i)(2); or "when a plea of guilty . . . by the individual . . . has been accepted by a . . . State . . . court," Act, section 1128(i)(3). These definitions are repeated at 42 C.F.R. � 1001.2.

An exclusion based on section 1128(a)(1) is mandatory and the I.G. must impose it for a minimum period of five years. Act, section 1128(c)(3)(B); 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 minimum mandatory period of exclusion is subject to enhancement in some limited circumstances and on proof of carefully-defined aggravating factors set out at 42 C.F.R. �� 1001.102(b)(1)-(9). In this case, the I.G. seeks to enhance the period of Petitioner's exclusion to 15 years, and relies on the four aggravating factors listed at 42 C.F.R. �� 1001.102(b)(1), (b)(2), (b)(5), and (b)(9).

If the I.G. attempts to enhance the period of exclusion by relying on any of those aggravating factors, a petitioner may attempt to limit or nullify the proposed enhancement through a showing of certain mitigating factors set out at 42 C.F.R. �� 1001.102(c)(1)-(3).

The standard of proof in this case is a preponderance of the evidence. 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), (c).

IV. Findings and Conclusions

I find and conclude as follows:

1. On March 7, 2005, in the Circuit Court for Baltimore County, Maryland, Petitioner Stanley Junious Benn pleaded guilty to Count One of an Indictment charging him with Felony Medicaid Fraud as defined at MD. CODE, CRIM. LAW � 8-509. I.G. Exs. 1, 2; P. Ex. 1.

2. Final adjudication of guilt, judgment of conviction, and sentencing based on that conviction were imposed on Petitioner in the Circuit Court on May 11, 2005. I.G. Exs. 1, 2, 3, and 4.

3. On August 31, 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 15 years, based on the authority set out in section 1128(a)(1) of the Act.

4. On September 14, 2005, Petitioner perfected his appeal from the I.G.'s action by filing a pro se hearing request.

5. The guilty plea, adjudication of guilt, judgment of conviction, and sentence based on Petitioner's violation of MD. CODE, CRIM. LAW � 8-509, as described in Findings 1 and 2 above, constitute a "conviction" related to the delivery of an item or service under the Maryland Medicaid program, 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. Berton Siegel, D.O., DAB No. 1467 (1994).

6. Because of his conviction, Petitioner was subject to, and the I.G. was required to impose, a period of exclusion from Medicare, Medicaid, and all other federal health care programs of not less than five years. Act, sections 1128(a)(1) and 1128(c)(3)(B).

7. The acts resulting in Petitioner's conviction of a violation of MD. CODE, CRIM. LAW � 8-509 caused a financial loss to the Maryland Medicaid program of approximately $249,406. I.G. Exs. 2, 3, and 4.

8. Because the acts resulting in Petitioner's conviction caused a financial loss to a Government program of more than $5,000, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(1) is present.

9. The acts resulting in Petitioner's conviction of a violation of MD. CODE, CRIM. LAW � 8-509 were committed over the period from on or about May 30, 2002 through on or about March 10, 2004. I.G. Ex. 2.

10. Because the acts resulting in Petitioner's conviction were committed over a period of one year or more, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(2) is present.

11. As the result of his conviction of a violation of MD. CODE, CRIM. LAW � 8-509, Petitioner was sentenced to incarceration for a term of three years. I.G. Ex. 1.

12. Because Petitioner was sentenced to a term of incarceration, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(5) is present.

13. As a consequence of the same set of circumstances that served as the basis for the conviction and exclusion described above, Petitioner has been the subject of an adverse action by the Maryland Department of Health and Mental Hygiene, Office of Health Services, effective July 14, 2005. I.G. Ex. 4.

14. Because Petitioner has been the subject of another adverse action by a state agency or board, based on the same set of circumstances that served as the basis for the conviction and exclusion described above, the aggravating factor set out in 42 C.F.R. � 1001.102(b)(9) is present.

15. None of the mitigating factors set out in 42 C.F.R. �� 1001.102(c)(1)-(3) are present. P. Ex. 1.

16. The I.G.'s exclusion of Petitioner for a period of 15 years is supported by fact and law, is within a reasonable range, and is therefore not unreasonable. I.G. Exs. 1, 2, 3, and 4; Findings 1-15, above.

17. There are no disputed issues of material fact and summary affirmance is 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

The essential elements necessary to support an exclusion based on section 1128(a)(1) of the Act are: (1) the individual to be excluded must have been convicted of a criminal offense; and (2) the criminal offense must have been related to the delivery of an item or service under Title XVIII of the Act (Medicare) or any state health care program. Thelma Walley, DAB No. 1367 (1992); Boris Lipovsky, M.D., DAB No. 1363 (1992); Lyle Kai, R.Ph., DAB CR1262 (2004), rev'd on other grounds, DAB No. 1979 (2005). Those two essential elements are established in the record before me.

The fact of Petitioner's conviction is shown by I.G. Exs. 1, 3, and 4. The acceptance of Petitioner's plea appears in P. Ex. 1, at 25, and satisfies the definition of "conviction" set out at section 1128(i)(3) of the Act. The Circuit Court's finding of guilty and its entry of judgment satisfy the definitions of "conviction" set out at sections 1128(i)(1) and (2) of the Act. The I.G. has proved the first essential element.

The relation of the criminal conviction to the delivery of services under the Maryland Medicaid program appears abundantly throughout I.G. Exs. 1, 2, 3, and 4. 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); Julius Williams, III, DAB CR1464 (2006); 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 government program present here as a matter of fact, Berton Siegel, D.O., DAB No. 1467 (1994), I believe that Petitioner's conviction for violating MD. CODE, CRIM. LAW � 8-509 is a program-related crime as a matter of law. The I.G. has proved the second essential element.

The defenses Petitioner interposes against the proposed exclusion are set out in his June 21, 2006 pleading entitled "ORDER TO SHOW CAUSE." The title appears to be a mistake, probably based on the fact that it was filed after I found it necessary to issue a similarly-titled Order when Petitioner failed to timely file his Answer Brief. As noted in my Order of July 6, 2006, I have treated the June 21, 2006 pleading as Petitioner's Answer Brief, and it will be so referred-to here.

The Answer Brief comprises 11 numbered paragraphs. The eleventh paragraph merely notes the submission of P. Ex. 1, and except for paragraph 2, all of the remaining paragraphs are attempts to impeach the fundamental fairness, procedural integrity, and evidentiary sufficiency of the proceedings in the Circuit Court. I simply may not entertain those arguments. Any form of collateral attack on predicate convictions in exclusion proceedings is precluded by regulation at 42 C.F.R. � 1001.2007(d), and that preclusion has been affirmed repeatedly by the Board. Susan Malady, R.N., DAB No. 1816 (2002); Dr. Frank R. Pennington, M.D., DAB No. 1786 (2001); Joann Fletcher Cash, DAB No. 1725 (2000); Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Chander Kachoria, R.Ph., DAB No. 1380 (1993).

Petitioner's assertion in paragraph 2 of his Answer Brief that his guilty plea was a so-called "Alford plea," presumably tendered under the rubric of North Carolina v. Alford, 400 U.S. 25 (1970), is of no significance in this litigation. Convictions based on "Alford pleas" have without exception been held sufficient predicate convictions in exclusion proceedings based on section 1128(a) of the Act. Charles W. Wheeler and Joan K. Todd, DAB No. 1123 (1990); Stella Remedies Lively, DAB CR1369 (2005); Charles D. Howard, M.D., DAB CR1362 (2005); Charles Philip Colosimo, DAB CR1225 (2004); John Y. Salinas, M.D., DAB CR1117 (2003); Ethel Ann Arita, DAB CR1052 (2003); Steven Alonzo Henry, M.D., DAB CR638 (2000). That rule has been in force at least since Kenneth Krulevitz, M.D., DAB CR24 (1989).

Petitioner's conviction stands and, as I have explained above, it satisfies both essential elements necessary to sustaining the exclusion. Once a predicate conviction within the purview of section 1128(a)(1) has been demonstrated, exclusion for the minimum period of five years is mandatory. Mark K. Mileski, DAB No. 1945 (2004); Salvacion Lee, M.D., DAB No. 1850 (2002); Lorna Fay Gardner, DAB No. 1733 (2000).

The period of exclusion may be enhanced to more than five years if the I.G. demonstrates the existence of certain aggravating factors. If the I.G. undertakes to do so, a petitioner may attempt to limit or nullify the proposed enhancement through a showing of certain mitigating factors. The I.G. may offer evidence relating to any of the aggravating factors set out at 42 C.F.R. �� 1001.102(b)(1)-(9). Those factors may be countered by evidence relating to any of the mitigating factors set forth at 42 C.F.R. �� 1001.102(c)(1)-(3).

The first aggravating factor on which the I.G. relies is present when "[t]he acts resulting in the conviction, or similar acts . . . caused . . . a financial loss to a Government program . . . of $5,000 or more." 42 C.F.R. � 1001.102(b)(1). Petitioner was required to pay $249,406 in restitution to the Maryland Department of Health and Mental Hygiene and the Maryland Medicaid program as part of his sentence. I.G. Ex. 4. If it were necessary to rely solely on this adjudicated amount of restitution as prima facie proof of the amount of loss, the law of this forum would support that reliance. Dr. Darren J. James, D.P.M., DAB CR860 (2002); Ruth Ferguson, DAB CR725 (2000); Steven Alonzo Henry, M.D., DAB CR638 (2000); Thomas P. Whitfield, D.P.M., DAB CR539 (1998); Gilbert Ross, M.D., et al., DAB CR478 (1997). But it is not necessary here to rely on the amount of restitution as the only statement of the total loss caused by Petitioner's crime, for the prosecution's Statement of Facts submitted to the Circuit Court as the basis of Petitioner's plea specifies the same amount. I.G. Ex. 2, at 9. That sum satisfies the requirement of 42 C.F.R. � 1001.102(b)(1). The I.G. has established this first aggravating factor.

The second aggravating factor asserted by the I.G. is specified at 42 C.F.R. � 1001.102(b)(2). That factor is present if "[t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more." Here, as with the first aggravating factor, the language of the charge to which Petitioner pleaded guilty demonstrates the factor. The telling lines of Count One of the Indictment read: " . . . Stanley Benn, from on or about May 30, 2002, through on or about March 10, 2004. . . did knowingly defraud the Maryland Medical Assistance Program, which is a State Medicaid program established pursuant to Title XIX of the Social Security Act . . . ." I.G. Ex. 2, at 2. Petitioner's admission of guilt is sufficient to demonstrate the temporal span of his crime. The I.G. has established this second aggravating factor.

The third aggravating factor relied on by the I.G. is specified at 42 C.F.R. � 1001.102(b)(5). The I.G. alleges that Petitioner's sentence included incarceration. The court records are plain that Petitioner was sentenced to a prison term of three years. I.G. Ex. 1. The I.G. has established this third aggravating factor.

The fourth aggravating factor invoked by the I.G. is set out at 42 C.F.R. � 1001.102(b)(9). That factor is present when a convicted individual ". . . has been the subject of any other adverse action by any . . . State . . . 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." The Maryland Department of Health and Mental Hygiene, Office of Health Services, removed Petitioner from the Maryland Medicaid program effective July 14, 2005. The Office of Health Services' action was explicitly based on his conviction and sentence in the Circuit Court. I.G. Ex. 4. The I.G. has established this fourth aggravating factor.

Evidence relating to aggravating factors may be countered by evidence relating to any of the mitigating factors set forth at 42 C.F.R. �� 1001.102(c)(1)-(3). Those mitigating factors appear immediately following the regulation's emphatic expression that "[o]nly the following factors may be considered mitigating . . ." 42 C.F.R. � 1001.102(c). 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). This allocation of the burden of proof, set out at 42 C.F.R. � 1005.15(b)(1), has been reaffirmed in more recent Board rulings. Stacey R. Gale, DAB No. 1941 (2004); Dr. Darren James, D.P.M., DAB No. 1828, at 7-8 (2002).

Petitioner has made no attempt to assert the existence of any of the mitigating factors. Without suggesting the slightest weakening of the rule that assigns to a petitioner the burden of proving any mitigating factor by a preponderance of the evidence, I have searched Petitioner's pro se pleadings and attached documents for any hint that one or more additional mitigating factors might be brought into consideration. In doing so, I have been guided by the Board's reminders that pro se litigants should be offered "some extra measure of consideration" in developing their records and their cases. Louis Mathews, DAB No. 1574 (1996); see Mark K. Mileski, DAB No. 1945; Brij Mittal, M.D., DAB No. 1894 (2003); Timothy L. Stern, M.D., DAB No. 1314 (1992); Edward J. Petrus, Jr., M.D., et al., DAB No. 1264 (1991).

That search has revealed nothing that points to or hints at any additional colorable claim in mitigation. Since Petitioner was convicted of a felony, 42 C.F.R. � 1001.102(c)(1) does not apply. Petitioner's own exhibit, P. Ex. 1, shows it very unlikely that he can plead reduced capacity at the time of his crime, or claim productive cooperation with official investigations of health care fraud, and thereby invoke the mitigating factors set out at 42 C.F.R. �� 1001.102(c)(2) and (c)(3), respectively.

The I.G.'s discretion in weighing the importance of aggravating and mitigating factors in exclusion cases commands great deference when reviewed by Administrative Law Judges (ALJs). This doctrine evolved in such Board decisions as Barry D. Garfinkel, M.D., DAB No. 1572 (1996); Frank A. DeLia, D.O., DAB No. 1620 (1997), and Gerald A. Snider, M.D., DAB No. 1637 (1997). With the Board's decisions in Joann Fletcher Cash, DAB No. 1725; Stacy Ann Battle, D.D.S., et al., DAB No. 1843 (2002), Keith Michael Everman, D.C., DAB No. 1880 (2003), and Jeremy Robinson, DAB No. 1905 (2004), this doctrine of deference to the I.G.'s assessment of aggravating and mitigating factors took its present form.

Stated simply, the doctrine requires that the ALJ not substitute her or his own view of what period of exclusion might appear "best" in any given case for the view of the I.G. on the same evidence. In general, the Board has insisted that ALJs may reduce an exclusionary period only when they discover some meaningful evidentiary failing in the aggravating factors upon which the I.G. relied, or when they discover evidence reliably establishing a mitigating factor not considered by the I.G. in setting the enhanced period. Jeremy Robinson, DAB No. 1905. Where, as here, all of the aggravating factors on which the I.G. relied are present and there are no mitigating factors, a holding that the exclusion period chosen by the I.G. was unreasonable could be reached only through an exercise that the doctrine forbids. The only question now before me is whether the exclusion period is within a reasonable range. In the instant case, the proposed 15-year period is commensurate with the range established as reasonable in Russell Mark Posner, DAB No. 2033 (2006); Stacey R. Gale, DAB No. 1941; Jeremy Robinson, DAB No. 1905; Thomas D. Harris, DAB No. 1881 (2003); Fereydoon Abir, M.D., DAB No. 1764 (2001); Joann Fletcher Cash, DAB No. 1725.

Summary disposition in a case such as this is appropriate when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law. Tanya A. Chuoke, R.N., DAB No. 1721. Summary disposition is explicitly authorized by the terms of 42 C.F.R. �1005.4(b)(12), and this forum looks to FED. R. CIV. P. 56 for guidance in applying that regulation. Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367; John W. Foderick, M.D., DAB No. 1125 (1990). When the undisputed material facts of a case support summary disposition, there is neither a right to -- nor the need of -- a full evidentiary hearing. Surabhan Ratanasen, M.D., DAB No. 1138 (1990); John W. Foderick, M.D., DAB No. 1125. The material facts in this case are undisputed, clear, and unambiguous. They support summary disposition as a matter of law, and this Decision issues accordingly.

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 Stanley Junious Benn from participation in Medicare, Medicaid, and all other federal health care programs for a term of 15 years, pursuant to the terms of section 1128(a)(1) of the Act, is sustained.

Richard J. Smith

Administrative Law Judge