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CASE | DECISION | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Egbert Aung Kyang Tan, M.D.,

Petitioner,

DATE: July 19, 2001
                                          
             - v -

 

The Inspector General

 

Docket No.C-01-095
Decision No. CR798
DECISION
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DECISION

I sustain the Inspector General's (I.G.) determination to exclude Egbert Aung Kyang Tan, M.D., Petitioner, from participation in Medicare, Medicaid, and all other federal health care programs for a period of 10 years. I find that the I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Social Security Act (Act), and that the 10-year exclusion imposed by the I.G. against Petitioner falls within a reasonable range.

I. BACKGROUND

By letter dated October 31, 2000, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of 10 years. The I.G. advised Petitioner that she is authorized to exclude him pursuant to section 1128(a)(1) of the Act because of his conviction in the Supreme Court of the State of New York for criminal offenses related to the delivery of an item or service under the Medicaid program. By letter dated November 11, 2000, Petitioner requested a hearing and the case was assigned to me.

On December 11, 2000, I held a prehearing conference by telephone at which the parties agreed that the case could be heard and decided based on written submissions. Both parties submitted briefs, accompanied by documentary evidence. The I.G. filed seven exhibits (I.G. Exs. 1 - 7) as part of her submission, and Petitioner filed 10 exhibits labeled A - J as part of his submission. I have renumbered Petitioner's exhibits A - J as exhibits 1 - 10 (P. Exs. 1 - 10) to conform to Civil Remedies procedures. In the absence of objection, I receive into evidence I.G. Exs. 1 - 7 and P. Exs. 1 - 10.

During the time period relevant to this case, Petitioner was a licensed psychiatrist, practicing in the State of New York and enrolled as a provider in the New York Medicaid program. I.G. Ex. 3. On April 18, 2000, Petitioner pled guilty to one count of second degree grand larceny, 13 counts of first degree offering a false instrument for filing, and two counts of first degree falsifying business records. I.G. Ex. 5. He admitted that he submitted false claims to the New York State Medicaid Program. I.G. Ex. 5. Petitioner's conviction based on his guilty plea and the New York Supreme Court's acceptance of that plea constitutes a conviction under section 1128(i)(3) of the Act. Petitioner was sentenced to five years probation and 100 hours of community service and ordered to pay $100,000 in restitution. I.G. Ex. 6.

II. ISSUE

Petitioner concedes that he was convicted under State law of a criminal offense related to the delivery of an item or service under the New York State Medicaid program, and acknowledges the mandatory imposition of a five-year exclusion. P. Br. at 10; See Order dated December 11, 2000. The sole issue before me is whether the length of the exclusion in excess of the five year mandatory minimum is reasonable. 42 C.F.R. � 1001.2007.

III. DISCUSSION

Section 1128(a)(1) requires that the Secretary of Health and Human Services (Secretary) exclude an individual who has been convicted under federal or State law of a criminal offense related to the delivery of an item or service under Medicare or a State health care program.(1) 42 C.F.R. � 1001.101. Individuals excluded under section 1128(a)(1) of the Act must be excluded for a period of not less than five years. Section 1128(c)(3)(B). The mandatory minimum period of exclusion may be increased with the existence of certain aggravating factors that are not offset by certain mitigating factors. 42 C.F.R. � 1001.102. The following three factors may serve as a basis for lengthening the period of exclusion: (1) the acts resulting in the conviction, or similar acts, resulted in a financial loss to Medicare and the State health care programs of $1,500 or more (42 C.F.R. � 1001.102(b)(1)); (2) the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more (42 C.F.R. � 1001.102(b)(2)); and (3) the convicted individual or entity has a prior criminal, civil, or administrative sanction record (42 C.F.R. � 1001.102(b)(6)).

The Secretary has delegated to the Inspector General (I.G.) the authority to impose exclusions. 42 C.F.R. � 1001.401(a). So long as the amount of time chosen for the exclusion imposed on Petitioner by the I.G. is within a reasonable range, based on demonstrated criteria, I have no authority to change it. Joann Fletcher Cash, DAB No. 1725 at 7 (2000), citing 57 Fed. Reg. 3298, 3321 (1992).

A. Petitioner was convicted of program-related crimes, within the meaning of section 1128(a)(1) of the Act, and may not use this forum to challenge those convictions.

The parties agree that Petitioner was convicted under State law of criminal offenses related to the delivery of an item or service under the New York State Medicaid program, and, in open court, Petitioner freely admitted his guilt. I.G. Ex. 5. Section 1128(a)(1) of the Act applies to any individual or entity who is convicted of a criminal offense that is related to the delivery of an item or service under Medicare or any State health care program.

The record reflects that Petitioner submitted, or caused to be submitted, claims to the New York Medicaid program for services that he did not provide. I.G. Ex. 4. As a result of Petitioner's false claim submissions, he received monies from the New York Medicaid program to which he was not entitled. I.G. Ex. 4 and 5. It is well settled that the filing of fraudulent Medicare or Medicaid claims constitutes program-related misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996); Rasaly Saba Khalil, M.D., DAB CR353 (1995). I find that Petitioners' convictions, as described above, are of crimes that are program- related within the meaning of section 1128(a)(1) of the Act.

Nevertheless, in his submissions to this tribunal, Petitioner suggests that his problems resulted from the ignorance or misconduct of his billing service (Maffia Billing Service), which purportedly confused the billing code for psychotherapy with the billing code for psychopharmacology. P. Br. at 6; P. Ex. 2 at 47 et seq.

This is not an appropriate forum for re-litigating Petitioner's criminal convictions. The regulations are explicit:

When the exclusion is based on the existence of a conviction . . . the basis for the underlying determination is not reviewable and the individual or entity may not collaterally attack the underlying determination, either on substantive or procedural grounds, in this appeal.

42 C.F.R. � 1001.2007(d). Joann Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, R Ph., DAB No. 1380 at 8 (1993) ("There is no reason to 'unnecessarily encumber the exclusion process' with efforts to reexamine the fairness of state convictions").

B. The I.G. is required to exclude Petitioner, inasmuch as Petitioner has been convicted of criminal offenses related to the delivery of items or services under Medicaid.

Section 1128(a)(1) of the Act mandates that the I.G. exclude any individual or entity who is convicted of an offense which is related to the delivery of an item or service under Medicare or any State health care program. The I.G. must exclude Petitioner, inasmuch as Petitioner was convicted of such offenses.

C. A 10-year exclusion falls within a reasonable range.

By regulation, the Secretary established the criteria for determining the length of exclusions imposed pursuant to section 1128 of the Act. 42 C.F.R. � 1001.102 lists the aggravating and mitigating factors applicable to a section 1128(a) exclusion. The presence of an aggravating factor or factors not offset by any mitigating factor or factors justifies lengthening the mandatory five year period of exclusion. Evidence that does not pertain to one of the specific aggravating or mitigating factors is not relevant and may not be used to decide whether an exclusion of a particular length is reasonable.

Petitioner admitted criminal responsibility for serious crimes. Petitioner also acknowledges the presence of two of the aggravating factors listed at 42 C.F.R. � 1001.102(b): that his crimes resulted in a loss to the State of more than $1,500, and that the acts resulting in his conviction occurred over a period of more than one year. He challenges the I.G.'s finding of a prior administrative sanction as an aggravating factor, and suggests that I consider some additional mitigating factors.

1. Petitioner's crimes resulted in a loss to the State health care program of more than $1,500. 42 C.F.R. � 1001.102(b)(1).

Petitioner does not challenge the existence of this aggravating factor, in that he was ordered to pay $100,000 in restitution to the New York Attorney General's Office. I.G. Ex. 6. The sentencing judge stated, "I have reviewed the grand jury testimony and I think a hundred thousand dollars is certainly well below what was actually taken." I.G. Ex. 5 at 4. As established by his $100,000 restitution order, Petitioner's criminal acts resulted in a financial loss to the New York Medicaid program of significantly more than $1,500.

2. Petitioner's crime that resulted in his conviction occurred over a period of more than one year. 42 C.F.R. � 1001.102(b)(2).

The record reflects that Petitioner pled guilty to criminal acts covering a time period from January 1, 1997, through August 31, 1998, a time period of more than one year. I.G. Ex. 4. Petitioner does not dispute that the acts occurred over more than one year, but asserts (irrelevantly) that:

upon notice by the authorities, he hired another billing service that correctly billed for and that he received proper remuneration for delivery of services to Medicaid for a period of 12 months, a period subsequent to the time period charged in the indictment.

P. Br. at 12. That he stopped his criminal behavior after he had been caught and realized his conduct was under scrutiny, is hardly mitigating.

3. The exclusion falls within a reasonable range without considering whether Petitioner has a prior administrative sanction record. 42 C.F.R. � 1001.102(b)(6).

By letters dated November 30, 1999, and May 2, 2000, the State of New York Department of Health excluded Petitioner from participation in the State Medicaid program. I.G. Ex. 7. Because New York State's action occurred prior to the I.G.'s October 31, 2000 exclusion, the I.G. considers this a prior administrative sanction under 42 C.F.R. � 1001.102(b)(6). See Gerald A. Snider, M.D., DAB CR484 (1997); Dionisio Lazaro, M.D., DAB CR603 (1999) (Even if the prior administrative sanction emanates from the same conduct or conviction which is the basis for the I.G.'s exclusion, it is relevant that another administrative body has found the excluded individual to be untrustworthy and therefore should be considered an aggravating factor).

Petitioner challenges such a broad definition of "prior administrative sanction." He notes that before his felonious conduct, his medical career was "without blemish," and argues that the administrative sanction the I.G. refers to "was simply an identical, time-related outgrowth consequence of the very conviction similarly utilized by the OIG as her No. 1 aggravating factor." P. Br. at 7.

I need not reach this issue. Whether the state sanction falls within the definition of "prior administrative sanction," does not alter the seriousness of Petitioner's offense, and the totality of the circumstances here justify a 10-year exclusion. The financial impact was substantial, at the $100,000 level. Given the sentencing judge's statement that he believed that $100,000 was certainly well below what was actually taken (I.G. Ex. 5 at 4), it is possible that the financial impact was even more substantial. Petitioner engaged in a massive fraud against the New York Medicaid program. His crime was deliberate and the record reflects that he took steps to conceal his fraud by deliberately altering patient records. Petitioner repeatedly submitted fraudulent claims for payment for a period of 20 months. Each of those submissions constituted a separate act of fraud directed against Medicaid and evidences a high degree of untrustworthiness.

4. This case does not present any mitigating factors.

Petitioner suggests that additional factors should be considered in mitigation. He argues that, except for this instance, his medical record has been without blemish, that he paid $100,000 in restitution, that he sincerely regrets his crime, and that his medical license is still in effect. He also asserts that he is caring, competent, and professional, and that some of his patients testified for him at a hearing concerning his professional medical conduct. None of these are mitigating factors.

The only factors which can be considered mitigating are: (1) Petitioner was convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $1,500; (2) the record demonstrates that Petitioner had a mental, physical, or emotional condition that reduced his culpability; or (3) Petitioner's cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed. 42 C.F.R. 1001.102(c). This case presents no mitigating factors. Petitioner was convicted of more than three misdemeanor offenses; program losses substantially exceeded $1,500; no evidence suggests any physical, mental, or emotional conditions; nor did Petitioner's cooperation result in any investigations or convictions. I note also that no one "deserves special credit (in the form of a reduced period of exclusion) for doing what is expected, that is, obeying the law." Barry D. Garfinkel, M.D. DAB No. 1572 at 32 n. 32 (1996) (citing 57 Fed. Reg. at 3315).

I therefore find that no mitigating factors justify reducing the period of exclusion.

IV. Conclusion

For the reasons set forth above, I conclude that the I.G. was authorized, under 1128(a)(1), to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. Considering the totality of the evidence, I find the 10-year exclusion within a reasonable range.

JUDGE
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Carolyn Cozad Hughes

Administrative Law Judge

 

FOOTNOTES
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1. The term "State health care program" includes a State's Medicaid program. Section 1128(h)(1) of the Act; 42 U.S.C. � 1320a-7(h)(1).

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