Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Farhad Mohebban, M.D., |
DATE: July 18, 2000 |
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The
Inspector General
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Docket No.C-00-120
Decision No. CR686 |
DECISION | |
By letter dated September 30, 1999, the Inspector
General (I.G.), United States Department of Health and Human Services, notified
Farhad Mohebban, M.D. (Petitioner), that he would be excluded for a period
of 10 years from participation in Medicare, Medicaid and all Federal health
care programs.(1) The I.G. imposed this exclusion
pursuant to section 1128(a)(1) of the Social Security Act (Act), based on
Petitioner's conviction in the United Stated District Court for the Southern
District of New York for a criminal offense related to the delivery of an
item or service under the Medicare program. Petitioner filed a request for review of the I.G.'s action.
Because I have determined that there are no material and relevant factual
issues in dispute (the only matter to be decided is the legal significance
of the undisputed facts), I have decided the case on the basis of the
parties' written submissions in lieu of an in-person hearing. The I.G.
submitted a brief accompanied by four proposed exhibits (I.G. Ex. 1-4).
Petitioner submitted a brief with one attachment and one proposed exhibit,
which I renumber as Petitioner's proposed exhibit one and proposed exhibit
two. (P. Ex. 1 and 2). Petitioner did not object to my receiving into
evidence the I.G.'s proposed exhibits, and I receive into evidence I.G.
Ex. 1-4. The I.G. did not object to my receiving Petitioner's proposed
exhibits into evidence and I receive into evidence P. Ex. 1 and 2. I affirm the I.G.'s determination to exclude Petitioner
from participating in Medicare and other federally-funded health care
programs, including Medicaid, for a period of 10 years.
APPLICABLE LAW Under section 1128(a)(1) of the Act, the Secretary may
exclude from participation in the Medicare and Medicaid programs any individual
or entity that has been convicted of a criminal offense related to the
delivery of an item or service under Title XVII, or under any State health
care program. Section 1128(c)(3)(B) of the Act provides that an exclusion
imposed under section 1128(a)(1) of the Act shall be for a minimum period
of not less than five years, unless specified aggravating or mitigating
factors are present which form the basis for lengthening or shortening
the period of exclusion. See also 42 C.F.R. � 1001.102(a). 42 C.F.R. � 1001.102(b) provides that the following factors
may be considered to be aggravating and a basis for lengthening the period
of exclusion: "(1) [t]he acts resulting in the conviction, or similar
acts, resulted in financial loss to a government program or to one or
more entities of $1500 or more. (The entire amount of financial loss to
such programs or entities, including any amounts resulting from similar
acts not adjudicated, will be considered regardless of whether full or
partial restitution has been made); (2) [t]he acts that resulted in the
conviction, or similar acts, were committed over a period of one year
or more; (3) [t]he acts that resulted in the conviction, or similar acts,
had a significant adverse physical, mental or financial impact on one
or more program beneficiaries or other individuals; (4) in convictions
involving patient abuse or neglect, the action that resulted in the conviction
was premeditated, was part of a continuing pattern of behavior, or consisted
of non-consensual sex acts; (5) [t]he sentence imposed by the court included
incarceration; (6) the convicted individual or entity has a prior criminal,
civil or administrative sanction record; (7) the individual or entity
has at any time been overpaid a total of $1500 or more by Medicare, Medicaid
or any other Federal health care programs as a result of intentional improper
billings; (8) the individual or entity has previously been convicted of
a criminal offense involving the same or similar circumstances; or (9)
whether the individual or entity was convicted of other offenses besides
those which formed the basis for the exclusion, or has been the subject
of any other adverse action by any Federal, State or local government
agency or board, if the adverse action is based on the same set of circumstances
that serves as the basis for the exclusion." 42 C.F.R. � 1001.102(c) provides that only the following
factors may be considered as mitigating and a basis for reducing the period
of exclusion: "(1) [t]he individual or entity was convicted of 3 or fewer
misdemeanor offenses, and the entire amount of financial loss to Medicare
and the State health care programs due to the acts that resulted in the
conviction is less than $1500; (2) [t]he record in the criminal proceedings,
including sentencing documents, demonstrates that the court determined
that the individual had a mental, emotional, or physical condition before
or during the commission of the offense that reduced the individual's
culpability; (3) [t]he individual's or entity's cooperation with Federal
or State officials resulted in -- (i) [o]thers being convicted or excluded
from Medicare, Medicaid, or all other Federal health care programs, (ii)
[a]dditional cases being investigated or reports being issued by the appropriate
law enforcement agency identifying program vulnerabilities or weaknesses,
or (iii) [t]he imposition against anyone of a civil money penalty or assessment
under part 1003 of this chapter."
PETITIONER'S CONTENTIONS Petitioner concedes that he was "convicted" as that term
is used in the Act of a criminal offense and that his offense relates
to the delivery of a health care item or service. He challenges the 10-year
exclusion and maintains that a five-year exclusion is proper. In his defense,
he notes that the tests which he ordered and which resulted in his receipt
of illegal kickbacks were medically necessary and involved only a few
instances of such misconduct with small amounts of money paid to him.
He also challenges the two specific factors cited by the I.G. to justify
a 10-year exclusion. He acknowledges that he received kickbacks for more
than a one-year period but asserts that such payments were intermittent,
not a pattern of misconduct and not the result of his solicitation of
such payments. He also maintains that the I.G. improperly construed his
6-month sentence of home confinement as a sentence involving incarceration
within the scope of 42 C.F.R. � 1001.102(b)(5). Petitioner also contends that, due to his service to the
community as a physician, this factor warrants mitigation of the exclusion
period. Finally, Petitioner asserts that the I.G.'s imposition of an exclusion in his case effectively prevents him from practicing as a physician, because neither a health care insurer nor the federal health care programs will reimburse him for his services.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. During the period of time relevant to this case, Petitioner
was licensed to practice medicine in the State of New York. I.G. Ex. 2,
at 2. 2. During the period of time relevant to this case, Petitioner
conducted a private practice in Queens, New York. I.G. Ex. 2, at 2. 3. In 1998, a Criminal Indictment (Indictment) was filed
in the United States District for the Southern District of New York charging
Petitioner with one count of knowingly and willfully soliciting and receiving
remuneration, to wit direct overt and covert payments of cash kickbacks
and bribes from co-conspirators, in return for purchasing, leasing, ordering
and arranging for and recommending purchasing leasing and ordering goods,
facilities and services, and items for which payment may be made in whole
or in part under a Federal health care program, namely the Medicare program
(Medicare Kickback Conspiracy) in violation of 18 U.S.C. � 371 and 42
U.S.C. �s 1320a-7b(b)(1) and (2). I.G. Ex. 2, at 3-7. 4. The Indictment also charged Petitioner with three counts
of unlawfully, knowingly, and willfully soliciting and receiving remuneration
in return for purchasing, leasing, and ordering goods, facilities, services
, and items for which payment may be made in whole or in part under a
Federal health care program, namely the Medicare program, in violation
of 42 U.S.C. � 1320a-7b(b)(1). I.G. Ex. 2, at 7-8. 5. In particular the Indictment alleged that Petitioner,
commencing in December 1993 through on or about 1998, referred patients
to Ganesh Surgical Supplies and American Open MRI Center Inc. These companies
were approved Medicare providers for surgical supplies and MRI testing,
for which Petitioner received $6,385 in illegal kickbacks. I.G. Ex. 2,
at 7-8. 6. On June 16, 1999, Petitioner pled guilty to all four
counts in the Indictment and judgment was entered on that date. I.G. Ex.
3, at 1. 7. As a result of his conviction, Petitioner was: a) sentenced
to serve six months of home confinement; b) was placed on probation for
two years; c) was ordered to pay a fine of $20,000 and an assessment of
$400; and d) ordered to perform 400 hours of community service. I.G. Ex.
3, at 2-6. 8. On September 30, 1999, Petitioner was notified by the
I.G. that he was being excluded from participation in the Medicare and
Medicaid programs for a 10-year period pursuant to section 1128(a)(1)
and section 1128(c)(3)(B) of the Act. I.G. Ex. 1. 9. Under section 1128(a)(1) of the Act, the I.G. is authorized
to exclude any individual or entity that has been convicted of a criminal
offense related to the delivery of a health care item or service under
Medicare or Medicaid. 10. Where the I.G. determines to exclude an individual
pursuant to section 1128(a)(1) of the Act, the term of exclusion shall
be for a period of five years, in the absence of aggravating or mitigating
factors that would support an exclusion of more or less than five years. 11. Petitioner's criminal conviction constitutes a conviction
within the scope of sections 1128(i)(1) and (3) of the Act. 12. Petitioner's conviction for Medicare Kickback Conspiracy
and Medicare Kickback is related to the delivery of a health care item
or service under the Medicare/Medicaid programs within the meaning of
section 1128(a)(1) of the Act. 13. The I.G. is authorized to exclude Petitioner pursuant
to section 1128(a)(1) of the Act. 14. The Petitioner did not prove the presence of any mitigating
factors authorized by 42 C.F.R. 1001.102(c). 15. The aggravating factors established by the I.G. proved
Petitioner to be untrustworthy. 16. The 10-year exclusion of Petitioner is upheld.
DISCUSSION Petitioner does not challenge that he is subject to exclusion
under section 1128(a)(1) of the Act and I so find. Petitioner pled guilty
to the charged offenses which constitutes a conviction under section 1128(i)(3)
of the Act and the Court entered judgment in Petitioner's case which constitutes
a conviction under section 1128(i)(1) of the Act. Next, it is required under section 1128(a)(1) of the Act
that the crime at issue be related to the delivery of a health care item
or service under the Medicare/Medicaid program. The record reflects that
Petitioner was found guilty of conspiracy to receive Medicare kickbacks
and unlawful receipt of Medicare kickbacks. Departmental Appeals Board
(DAB) decisions have uniformly upheld section 1128(a)(1) exclusions for
convictions of receiving illegal kickbacks or bribes concerning Medicaid
or Medicare business. Asadollah Amrollahifar, Ph.D, DAB CR238 (1992);
see also Niranjana B. Parikh, M.D., DAB 1334 (1992); Arthur
V. Brown, M.D., DAB CR226 (1992); John J. Tolentino, M.D.,
DAB CR180 (1992). Thus, the receipt of such unlawful remuneration is an
offense clearly related to the delivery of an item or service under the
Medicare program. Petitioner in his defense asserts that the tests and
services ordered for which he received kickbacks were medically necessary,
that he did not actively solicit kickbacks, and that his involvement was
intermittent. To the extent that by such claims Petitioner seeks to challenge
the validity of his criminal conviction in the present exclusion proceeding,
I have no authority to consider such collateral attack on the criminal
conviction. Paul R. Scollo, D.P.M., DAB 1498 (1994); Ernest
Valle, DAB CR309 (1994); Peter Edmondson, DAB 1330 (1992). Petitioner has argued in his brief that his 10-year exclusion
should be reduced due to the presence of one or more mitigating factors.
It is Petitioner's burden to prove the existence of mitigating factors.
James H. Holmes, DAB CR270 (1993). Petitioner has not established
any of the mitigating factors listed at 42 C.F.R � 1001.102(c). He claims
that his involvement in the scheme was intermittent and that he did not
actively solicit kickbacks, but such claims of mitigation are not within
the scope of the regulations. Similarly, his claim that he has performed
community service and his services as a physician are needed in the community
are not factors of mitigation within the scope of 42 C.F.R. � 1001.102(c).
As Petitioner has the burden concerning mitigating factors, I find that
he has not met such burden and conclude that Petitioner has not proved
the existence of any mitigating factors. In determining whether the length of an exclusion is reasonable,
it is the responsibility of the administrative law judge to consider and
evaluate all of the relevant evidence brought to bear in this case. 42
C.F.R. � 1001.102(b) sets forth the aggravating factors which may be considered
in determining the length of an exclusion. I find that the I.G. proved
the presence of two aggravating factors. The two aggravating factors consist
of the following:
Upon consideration of the evidence presented, I find that
Petitioner has not presented sufficient evidence to support the claim
of the existence of mitigating factors. Moreover, I find that the I.G.'s
evidence of aggravating factors makes the imposition of the 10-year exclusion
reasonable and proper. I note that in evaluating these factors, it is
not the mere presence of a greater number of aggravating factors which
forms the basis for my decision. As the Appellate panel has previously
held in Barry D. Garfinkel, M.D., DAB 1572 (1996), it is the quality
of the circumstances, whether aggravating or mitigating, which is to be
dispositive in analyzing evidence of these factors. See Garfinkel,
at 31. Finally, Petitioner contends that, by his exclusion from
participation in the Medicare and Medicaid programs, he is effectively
deprived of his livelihood as he cannot be employed in the medical field
during the period of exclusion. However, such argument has been previously
rejected. See Arlene Elizabeth Hunter, R.N., DAB CR505 (1997).
CONCLUSION I conclude that the I.G. was authorized to exclude Petitioner, pursuant to section 1128(a)(1) of the Act. I find that, based upon the evidence presented, the 10-year exclusion is proper and I sustain it. |
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JUDGE | |
Joseph K. Riotto Administrative Law Judge
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FOOTNOTES | |
1. In this decision, I use the term "Medicare" to refer to these Federal health care programs. | |