Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Roger O. Littge, M.D., Petitioner,
- v. -
The Inspector General.
DATE: February 9, 1994
Docket No. C-93-101
Decision No. CR302
DECISION
The Inspector General (I.G.) of the United States Department of Health and
Human Services (DHHS)
notified Petitioner by letter dated July 13, 1993 (Notice) that he was being
excluded for a period of three
years from participation in the Medicare, Medicaid, Maternal and Child Health
Services Block Grant and
Block Grants to States for Social Services programs. 1/
The I.G. informed Petitioner in the Notice that his three-year exclusion from
Medicare and Medicaid was
authorized by section 1128 of the Social Security Act (Act) and resulted from
his conviction of a criminal
offense relating to the unlawful manufacture, distribution, prescription, or
dispensing of a controlled
substance, within the meaning of section 1128(b)(3) of the Act.
By letter dated July 23, 1993, Petitioner timely requested a hearing before
an administrative law judge
(ALJ) and the case was assigned to ALJ Mimi Hwang Leahy for a hearing and a
decision. The parties
submitted cross-motions for summary disposition, briefs, and exhibits.
The case subsequently was reassigned to me for a hearing and a decision. I
conducted a telephone
prehearing conference on December 21, 1993 at which time I admitted into evidence
the I.G.'s exhibits
(I.G. Ex.) 1 - 4 and Petitioner's exhibits (P. Ex.) 3 and 6.
During the prehearing conference, Petitioner admitted that he was convicted
of a criminal offense relating
to the unlawful manufacture, distribution, prescription, or dispensing of a
controlled substance, within the
meaning of section 1128(b)(3). The I.G. stated that there were no aggravating
factors present and
Petitioner conceded that there were no mitigating factors present, as identified
in 42 C.F.R. 1001.401(c).
The parties agreed that the only remaining issue is the appropriate length of
the exclusion.
I have considered the evidence of record, the parties' arguments, and the applicable
law in this case. I find
and conclude that Petitioner's three-year exclusion is reasonable.
ISSUE
Whether the three-year exclusion the I.G. imposed and directed against Petitioner is reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Having considered the entire record, the arguments, and the submissions of
the parties, and being advised
fully, I make the following Findings of Fact and Conclusions of Law (FFCL):
1. Petitioner was, during the relevant period, a practicing physician in Redding,
California. I.G. Ex.
3.
2. On September 30, 1992, Petitioner was found guilty after a jury trial of:
three counts of
unlawfully prescribing a controlled substance; one count of unlawfully furnishing
and administering a
controlled substance; one count of unlawfully failing to keep a record of a
dispensed controlled substance;
one count of unlawfully failing to maintain the inventory of a dispensed controlled
substance; and one
count of unlawfully concealing a weapon without a license to carry the weapon,
all in violation of
California law. I.G. Ex. 4.
3. Petitioner was convicted of a criminal offense relating to the unlawful
manufacture, distribution,
prescription, or dispensing of a controlled substance. FFCL 2.
4. The Secretary of DHHS (Secretary) has delegated to the I.G. the authority
to determine, impose,
and direct exclusions pursuant to section 1128 of the Act. 48 Fed. Reg. 21,662
(1983).
5. The I.G. has the authority to impose and direct an exclusion against Petitioner
pursuant to section
1128(b)(3) of the Act. FFCL 4.
6. The regulations published on January 29, 1992 establish criteria to be used
by the I.G. in
determining to impose and direct exclusions pursuant to sections 1128(a) and
(b) of the Act. 42 C.F.R.
Part 1001 (1992).
7. On January 22, 1993, the Secretary published a regulation which directs
that the criteria to be used
by the I.G. in determining to impose and direct exclusions pursuant to sections
1128(a) and (b) of the Act
are binding also upon ALJs in reviewing the imposition of exclusions by the
I.G. 42 C.F.R. 1001.1(b); 58
Fed. Reg. 5617, 5618 (1993).
8. My adjudication of the length of the exclusion in this case is governed
by the criteria contained in
42 C.F.R. 1001.401.
9. In the July 13, 1992 Notice, the I.G. notified Petitioner that he was being
excluded from
participation in Medicare and Medicaid for a period of three years.
10. An exclusion imposed pursuant to section 1128(b)(3) of the Act must be
for a period of three
years, unless the presence of aggravating or mitigating factors as specified
in the regulations form a basis
for lengthening or shortening the exclusion period. Act, section 1128(b)(3);
42 C.F.R. 1001.401.
11. There are no aggravating or mitigating factors, as defined by 42 C.F.R.
1001.401(c), present in
this case.
12. Section 1128 of the Act is a civil statute designed to protect government
financed health care programs
from fraud and abuse by providers and to protect the beneficiaries and recipients
of those programs from
incompetent, dishonest, and unfit medical providers.
13. Petitioner is an unfit health care provider. FFCL 2, 3, 12.
14. A three-year exclusion is needed in this case to satisfy the remedial purposes
of the Act and to
protect Medicare and Medicaid and their beneficiaries and recipients from an
unfit medical provider.
FFCL 13.
15. The three-year exclusion imposed and directed against Petitioner by the
I.G. is reasonable. FFCL
1 - 14.
DISCUSSION
In order for the I.G. to have a basis to exclude an individual or entity under
section 1128(b)(3) of the Act,
that individual or entity must have (1) been convicted under federal or State
law of a criminal offense (2)
relating to the unlawful manufacture, distribution, prescription, or dispensing
of a controlled substance.
Here, Petitioner admits that he was convicted of a crime relating to the unlawful
manufacture, distribution,
prescription, or dispensing of a controlled substance within the meaning of
section 1128(b)(3) of the Act,
and the I.G. has submitted evidence substantiating Petitioner's admission. I.G.
Exs. 1 - 4. Accordingly, the
I.G. had the authority to exclude Petitioner under section 1128(b)(3) of the
Act.
I. Petitioner cannot collaterally attack his State court conviction in this
administrative proceeding.
Petitioner argues that he was unjustly convicted in State court, based on the
evidence presented by the
prosecution. However, collateral attacks of State court convictions are impermissible
in section 1128
exclusion cases. Zenaida P. Doiranlis, M.D., DAB CR267 (1993). The State court
where Petitioner was
convicted is the proper forum for any attack of his State court conviction.
II. The regulations published on January 29, 1992 govern the disposition of
this case.
On January 29, 1992, the Secretary published regulations which effect both
procedural and substantive
changes with respect to section 1128 exclusion cases. 42 C.F.R. Parts 1001 -
1007; 57 Fed. Reg. 3298 -
3358.
These regulations apply to cases where the I.G.'s Notice was issued after January
29, 1992. Behrooz
Bassim, M.D., DAB 1333 (1992). Accordingly, the January 29, 1992 regulations
apply in this case,
because the I.G.'s exclusion Notice was issued after the effective date of the
regulations.
III. By reason of federal law and regulations, Petitioner must be excluded for
a period of three years.
Section 1128 of the Act is a civil statute designed to protect government financed
health care programs
from fraud and abuse by providers and to protect the beneficiaries and recipients
of those programs from
incompetent, dishonest, and unfit medical providers. 2/ An exclusion is also
a deterrent to future misdeeds.
The stated purpose of the January 29, 1992 regulations is "to protect
program beneficiaries from unfit
health care practitioners, and otherwise to improve the anti-fraud provisions
of the Department's health care
programs
. . . ." 57 Fed. Reg. 3298. The January 29, 1992 regulations constitute
the Secretary's finding that an
individual convicted of a criminal offense related to the unlawful manufacture,
distribution, prescription, or
dispensing of a controlled substance is unfit to provide items or services to
Medicare or Medicaid or the
programs' beneficiaries or recipients for a period of three years.
Only if there is evidence of aggravating or mitigating factors as enumerated
in section 1001.401(c) of the
regulations can an excluded party's period of exclusion be other than three
years. See John M. Thomas, Jr.,
M.D., et al., DAB CR281 (1993). Here, no aggravating or mitigating circumstances
have been alleged to
exist.
Thus, pursuant to section 1001.401(c) of the January 29, 1992 regulations,
Petitioner must be excluded
from Medicare and Medicaid for a minimum period of three years, because Petitioner
admitted and the I.G.
proved that Petitioner was (1) convicted of a criminal offense which (2) relates
to the unlawful
manufacture, distribution, prescription, or dispensing of a controlled substance.
Act, section 1128(b)(3).
CONCLUSION
Based on the law and the evidence submitted by the parties, I conclude that
Petitioner's three-year
exclusion is reasonable and must stand.
It is so Ordered.
____________________________
Charles E. Stratton
Administrative Law Judge
1. Unless indicated otherwise, I use the term "Medicaid" to represent
all State health care programs from
which Petitioner has been excluded.
2. Congress enacted the exclusion law to protect the integrity of federally
funded health care programs.
Among other things, the law is designed to protect program beneficiaries and
recipients from individuals
who have demonstrated by their behavior that they threaten the integrity of
the programs or that they
cannot be entrusted with the well-being and safety of beneficiaries and recipients.
See S. Rep. No. 109,
100th Cong., 1st Sess. 1 (1987), reprinted in 1987 U.S.C.C.A.N. 682.