Robert C. Mohr, M.D., CR No. 292 (1993)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: Robert C. Mohr, M.D., Petitioner,
- v. -
The Inspector General.

DATE: October 25, 1993

Docket No. C-93-067
Decision No. CR292

DECISION

By letter dated February 23, 1993, the Inspector General (I.G.), U.S. Department of Health and Human
Services (HHS), notified Robert C. Mohr, M.D., the Petitioner herein, that it had been decided to exclude
Petitioner for a period of five years from participation in the Medicare, Medicaid, Maternal and Child
Health Services Block Grant and Block Grants to States for Social Services programs, which I refer to
herein as "Medicaid." The I.G.'s rationale was that exclusion, for at least five years, is mandated by
sections 1128(a)(1) and 1128(c)(3)(B) of the Act because Petitioner had been convicted of a criminal
offense related to the delivery of an item or service under Medicaid.

Petitioner filed a timely request for review by the Departmental Appeals Board (DAB) of the I.G.'s action.
The I.G. moved for summary disposition.

Because I have determined that there are no facts of decisional significance genuinely in dispute, and that
the only matters to be decided are legal, I have granted the I.G.'s motion and decided the case on the basis
of the parties' written submissions.

I affirm the I.G.'s determination to exclude Petitioner from participation in the Medicare and Medicaid
programs for a period of five years.

APPLICABLE LAW

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act make it mandatory for any individual who has been
convicted of a criminal offense related to the delivery of an item or service under Medicare or Medicaid to
be excluded from participation in such programs, for a period of at least five years.


FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Petitioner is a licensed psychiatrist in the State of Utah who owns and operates the Mohr Clinic, a
mental health facility. P. Br. 3. 1/

2. Petitioner was charged, in a Count I of the criminal information (Information), the only count in said
Information, with knowingly filing claims for medical benefits, which claims misrepresented the type,
quality, or quantity of services rendered. I.G. Ex. 1 at 1. 2/

3. Specifically, Petitioner was alleged to have received overpayment from the Medicaid program as a
result of his filing of Medicaid claims in which he incorrectly claimed that services were provided by a
physician when, in fact, services were provided by a non-physician employed by Petitioner. I.G. Ex. 1 at
2.

4. Petitioner entered into a plea agreement whereby he pled guilty to filing a false Medicaid claim, as
charged in Count I of the Information. I.G. Ex. 1, 2, 3, 4.

5. On August 11, 1992, the Utah Third Circuit Court received Petitioner's plea agreement and agreed to
handle it pursuant to a first offender program, whereby Petitioner's plea and sentencing would be held in
abeyance until he satisfied all the conditions of the plea agreement, following which, the case could be
dismissed. I.G. Ex. 2, 3, 4.

6. As part of his plea agreement, Petitioner was ordered by the Utah court to pay $17,000 to the Utah
Bureau of Medicaid Fraud as follows: $12,000 in restitution, $2000 in investigation costs, and $3000 in
penalties. I.G. Ex. 2, 3.

7. An individual who has entered into participation in a first offender, deferred adjudication, or other
arrangement or program where judgment of conviction has been withheld is deemed "convicted" for
purposes of section 1128(a) of the Act. Act, section 1128(i)(4).

8. The Secretary of HHS has delegated to the I.G. the authority to determine and impose exclusions
pursuant to section 1128 of the Act. 48 Fed. Reg. 21662 (May 13, 1983).

9. The actions of Petitioner which caused him to be charged and convicted (meaning his intentionally
misrepresenting to Medicaid authorities the identity of the actual provider of certain medical services)
constitute a criminal offense related to the delivery of items or services under Medicaid, within the
meaning of section 1128(a)(1) of the Act. Findings 1 - 8.

10. Petitioner may not utilize these administrative proceedings to collaterally attack his criminal
conviction by seeking to show that he did not do the act charged, or that he had no criminal intent.

11. Petitioner's contention that the Utah officials who handled his case were "agents" of the Secretary of
HHS, so that the State's commitment not to punish Petitioner further estops the Secretary from acting
against him, is wholly without basis.

12. Petitioner did not make any showing that he was subjected to cruel and unusual punishment or lack of
due process; in any event, as an administrative law judge, I have no authority to resolve such matters in this
forum.


PETITIONER'S ARGUMENT

Petitioner asserts that he "...was not convicted of a crime...." Rather, he "...merely negotiated a plea
bargain."

He maintains that his misdemeanor offense was unrelated to the delivery of health care since it amounted
to nothing more than a technical billing dispute concerning whether Petitioner could bill Medicaid for the
services of clinical social workers who helped care for his psychiatric patients, under his supervision. He
contends that his position was legally justified and extensively cites statutes and regulations in support of
his position.

Petitioner argues also that the State of Utah acts as an "agent" of the Secretary of HHS when it negotiates
an agreement, such as the settlement arrived at in his case, and that when the State agreed that he would be
subject to no additional penalties, this commitment was binding upon HHS.

Lastly, Petitioner is of the opinion that the actions taken against him denied him due process and equal
protection, as guaranteed by Utah law, and subjected him to cruel and unusual punishment and double
jeopardy (presumably referring to the U.S. Constitution).


DISCUSSION

The first statutory requirement for mandatory exclusion pursuant to section 1128(a)(1) of the Act is that the
individual in question must have been convicted of a criminal offense under federal or State law. In the
case at hand, Petitioner pled guilty. The court "received" Petitioner's plea, but did not enter it, choosing,
instead, to place him in a first-offender program, pursuant to which his plea could be expunged if he
complied with the terms of his bargain with the State.

The applicable law (section 1128(i) of the Act) indicates that there are essentially four sets of actions a
court could take which would be regarded as a conviction for purposes of sections 1128(a) and (b) of the
Act -- i.e., the court could enter a judgment of conviction (it is immaterial whether there is an appeal
pending or whether the judgment is ultimately expunged); or the court could make a formal finding of
guilt; or the court could accept a guilty or nolo contendere plea; or the court could defer judgment to allow
a guilty defendant (who complies with certain conditions) to preserve a clean record. It is apparent that the
plea agreement of Petitioner herein satisfies this last criterion and that he has been convicted within the
meaning of section 1128(i) of the Act.

Next, it is required by section 1128(a)(1) that Petitioner's criminal offense be related to the delivery of an
item or service under Medicare or Medicaid. In I.G. Ex. 2, Petitioner's "waiver of his right to a trial", he
states that he is entering a plea of guilty to Count I of the Information, namely the charge of filing a false
Medicaid claim. In I.G. Ex. 3, the actual plea agreement, Petitioner states that he is pleading guilty to the
Class B misdemeanor of filing a false claim.

My assessment of all of the relevant facts and circumstances is that Petitioner's plea to the Class B
misdemeanor of filing a false claim is the same offense, albeit less precisely stated, as the offense charged
in Count I of the Information. I.G. Ex. 1, 3. The court, in accepting Petitioner's plea, incorporated by
reference Petitioner's sworn admission that he was pleading to filing a false Medicaid claim, as specified in
Count I of the Information. I.G. Ex. 1, 2, 3 at 2, 4.

It is well-established in DAB case precedent that filing false Medicare or Medicaid claims constitutes
program-related misconduct, sufficient to mandate exclusion. Jack W. Greene, DAB CR19, aff'd DAB
1078 (1989), aff'd Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990). In light of the above, it is
my determination that the actions of Petitioner in the present case which caused him to be charged and
convicted (meaning his intentionally misrepresenting to the Medicaid authorities the identity of the person
who actually provided the medical services) constitute a criminal offense related to the delivery of items or
services under Medicaid, thereby satisfying the second requirement for mandatory exclusion.

Furthermore, it has been held that a criminal offense meets the statutory test for program-related
misconduct where either the Medicare or Medicaid program is the victim of the crime. Domingos R.
Freitas, DAB CR272, at 30 (1993), citing Napoleon S. Maminta, M.D., DAB 1135 (1990). As part of
Petitioner's plea agreement, the court compelled Petitioner to pay restitution to the Utah State Bureau of
Medicaid Fraud. The Information under which Petitioner was charged and convicted contains only one
count. I.G. Ex. 1, 3. The Information states that the false claims that Petitioner filed were Medicaid
claims. I.G. Ex. 1. When imposing sentence on Petitioner for that one count, the court required Petitioner
to pay restitution to the Utah State Bureau of Medicaid Fraud. This indicates that the sole offense for
which Petitioner was charged or convicted, Count I of the Information, had an adverse financial impact on
the Medicaid program. Petitioner's offense victimized the Medicaid program because it compelled
Medicaid to pay for services at a rate commensurate with a physician providing them when, in fact, a non-
physician provided those services. Finding 3. Under the test enunciated in Maminta and reaffirmed in
Freitas, this is convincing evidence sufficient for me to find that Petitioner's criminal conviction is
program-related within the meaning of section 1128(a)(1).

Petitioner, as was noted above, insists that his actions were legally correct and that the State authorities
who prosecuted him were wrong. However, HHS may not look beyond the fact of conviction and
Petitioner may not utilize its administrative proceedings to collaterally attack his criminal conviction by
seeking to show that he did not do the act charged, or that he had no criminal intent.
Petitioner may have recourse in the courts to rectify such matters, but not here. Richard G. Philips,
D.P.M., DAB CR133 (1991); Peter J. Edmonson, DAB 1330 (1992).

Petitioner's contention that the Utah officials who handled his case were "agents" of the Secretary of HHS,
so that the State's commitment not to punish Petitioner further estops the Secretary from acting against him,
is wholly without basis. No evidence in the record suggests that such a delegation of authority ever
occurred, and it is evident from provisions of the Act that Congress gave State and federal officials distinct
and independent roles to play in sanctioning wayward health-care providers.

Petitioner claims also that the exclusion he is appealing here, if imposed, would unlawfully subject him to
double jeopardy, since the State had already taken action against him for the same offense. However, an
appellate panel of the DAB has held explicitly that the mandatory exclusion provision is not comparable to
the civil penalty imposed in U.S. v. Halper, 490 U.S. 435 (1989), but is remedial in nature and, therefore,
constitutionally inoffensive. Janet Wallace, L.P.N., DAB 1126 (1992). Second, as a matter of law, the
constitutional ban on double jeopardy does not preclude a federal civil sanction being imposed against a
person who has been convicted by a State of a criminal offense arising out of the same facts. See, e.g.,
Abbate v. U.S., 359 U.S. 187 (1959).

Lastly, with regard to the allegations of denial of due process and cruel and unusual punishment, Petitioner
has merely listed these words and has offered no coherent argument or evidence indicating why they might
apply to him. In any event, I, as an administrative law judge, have, essentially, no authority to resolve such
matters in this forum. Shanti Jain. M.D., DAB 1398 (1993).


CONCLUSION

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from the Medicare
and Medicaid programs for a period of at least five years because of his criminal conviction for filing a
false Medicaid claim, which conviction is related to the delivery of items or services under these programs.
Neither the I.G. nor the administrative law judge is authorized to reduce the minimum term of five years
for this mandatory exclusion. Greene.

The five-year exclusion is, therefore, sustained.

__________________________
Joseph K. Riotto
Administrative Law Judge

1. I use the following abbreviations when citing the parties' exhibits and briefs and my findings of fact
and conclusions of law:

I.G.'s Exhibit I.G. Ex. (number at page)

Petitioner's Exhibit P. Ex. (number at page)

Petitioner's Brief P. Br. (page)

I.G.'s Brief I.G. Br. (page)

I.G.'s Reply Brief I.G. R. Br. (page)

My Findings and Conclusions Finding (number)

2. Petitioner submitted one exhibit with his brief. The exhibit was marked as "Plaintiff's Exhibit A." I
have re-marked this exhibit as Petitioner's Exhibit 1 and admit it into evidence. The I.G. submitted five
exhibits, marked as I.G. Ex. 1 - 5. I admit all of the I.G.'s exhibits into evidence.