SUBJECT: Brij Mittal, M.D.,

Petitioner,

The Inspector General

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Brij Mittal, M.D. (Petitioner) appealed a March 10, 2003 decision by Administrative Law Judge (ALJ) Keith W. Sickendick granting summary judgment for the Inspector General (I.G.). Brij Mittal, M.D., DAB CR1012 (2003) (ALJ Decision). The ALJ Decision affirmed the I.G.'s determination that, under section 1128(a)(1) of the Social Security Act (Act), Petitioner should be excluded from participation in all federal health care programs as defined in section 1128B(f) of the Act, including Medicare and Medicaid, for a period of 10 years.

The ALJ Decision was based on seven Findings of Fact and nine Conclusions of Law. The ALJ found that Petitioner had been convicted after a jury trial in the United States District Court, Southern District of New York, of one count of conspiracy to receive unlawful Medicare kickbacks in violation of 18 U.S.C. � 371 and three counts of unlawful receipt of kickbacks in violation of 42 U.S.C. � 1320a-7b(b)(1) (section 1128B(b)(1) of the Act). The ALJ determined that a five-year exclusion was mandatory pursuant to section 1128(c)(3)(b) of the Act because Petitioner had been convicted of a program-related crime referenced in section 1128(a)(1). The ALJ further concluded that extension of the minimum period of the exclusion by five years, for a total period of ten years, was not unreasonable given the presence of three aggravating factors and no mitigating factors.

For the reasons discussed below, we reverse the ALJ's Conclusions of Law Nos. 1 and 6. We conclude that the ALJ improperly granted summary judgment in this case. We remand the case to the ALJ for any necessary further proceedings including an in-person hearing to determine whether Petitioner can establish that a mitigating factor exists pertaining to his cooperation with federal officials. We also conclude, however, that Petitioner's other exceptions on appeal lack merit. Thus, we affirm and adopt each of the ALJ's Findings of Fact as well as the ALJ's Conclusions of Law Nos. 2-5 and 7-9.

The record for our decision includes the record before the ALJ and the parties' submissions and Petitioner's exhibit on appeal. ⁽¹⁾

Our standard of review of the ALJ Decision to uphold the I.G.'s exclusion is set by regulation. We review to determine whether the decision is erroneous as to a disputed issue of law and whether the decision is supported by substantial evidence in the record as a whole as to any disputed issues of fact. 42 C.F.R. � 1005.21(h).

1. Petitioner's arguments concerning the legality of the exclusion lack merit.

On appeal, Petitioner argued that the payments he received for referring his patients to medical suppliers and service providers were not kickbacks because they did not result in any loss to the Medicare program and because his referrals were medically necessary. Petitioner contended that an offense is not program-related unless the program can demonstrate that it sustained a loss. Petitioner also argued that his exclusion was not "remedial" and constituted "double jeopardy" or a second punishment from the same sovereign that had already punished him following conviction for criminal offenses. We conclude that these issues, which have been discussed in numerous prior Board decisions, were adequately resolved in the ALJ Decision.

Petitioner's exclusion under section 1128(a)(1) was based on his conviction in federal court of three counts of violations of section 1128B(b)(1) for unlawfully receiving kickbacks and one count of conspiracy to receive unlawful Medicare kickbacks under 18 U.S.C. � 371. All four offenses are related to the delivery of an item or service under the Medicare program and are therefore a proper basis for an exclusion pursuant to section 1128(a)(1). It is irrelevant whether the Medicare program actually sustained a monetary loss since Congress has determined by virtue of these criminal provisions that it is harmful to the Medicare program for individuals to receive kickbacks for referring beneficiaries to particular medical suppliers or service providers (rather than basing the referrals solely on what is in the best interests of the beneficiary without the added incentive of a kickback). Section 1128(a)(1) requires only that there be a nexus between the criminal acts and the delivery of an item or service under the Medicare program and clearly such a nexus exists here. Kahn v. Inspector General of U.S. Department of Health and Human Services, 848 F. Supp. 432 (S.D.N.Y. 1994); Travers v. Sullivan, 791 F.Supp. 1471, 1480-1482 (E.D. Wash. 1992); Berton Siegel, D.O., DAB No. 1467, at 5 (1994). Also, as the ALJ pointed out, Petitioner's arguments can be viewed as a collateral attack upon his conviction for these four counts, and must therefore be raised in another forum, criminal court. To the extent that the absence of financial loss to the Medicare program or the existence of medical necessity for the supplies or services were extenuating factors to his criminal offenses, these arguments had relevance to the criminal process, not to the federal exclusion process occurring here.

Petitioner also asserted that the payments were not illegal because they "arguably" fell within "safe harbor" provisions and because the payments were not the product of fraud. Petitioner Br. at 7-8. However, as the ALJ correctly concluded, these arguments are unavailing to Petitioner because they represent collateral attacks on his conviction. 42 C.F.R. � 1001.2007(d).

Finally, it is settled law based on numerous court decisions including those cited in the ALJ Decision that an exclusion under circumstances similar to those here is remedial in nature and purpose, not punitive, and the Double Jeopardy Clause simply does not apply. See Erickson v. U.S. ex rel. Department of Health and Human Services, 67 F.3d 858, 864 n.2 (9th Cir. 1995), cf. Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003); Mannochio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Spriggs v. Thompson, CIV S-01-1611 LKK/PAN (E.D. Cal. April 26, 2002); Kahn; Joann Fletcher Cash, DAB No. 1725, at 7-14 (2000). As the ALJ noted, Petitioner cited no case in which a court has held that the mandatory exclusion provisions of the Act offend the Double Jeopardy Clause.

2. Petitioner's arguments concerning the applicability of the aggravating factors in 42 C.F.R. �� 1001.102(b)(2) and 42 C.F.R. 1001.102(b)(9) lack merit.

Petitioner also argued that the ALJ erred in considering two of the three aggravating circumstances relied upon by the I.G. Petitioner first argued that the acts that resulted in his convictions for Counts 2 through 4 did not occur over a course of more than one year. Therefore, according to Petitioner, the I.G. had not established the existence of an aggravating circumstance under 42 C.F.R. � 1001.102(b)(2). That section provides that a factor may be considered to be aggravating and a basis for lengthening the exclusion if "[t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more."

Petitioner is correct that Counts 2 through 4 of the indictment only identify, specifically, overt acts spanning a period of less than one year. However, Petitioner's argument totally ignores the overt acts identified in the indictment for Count 1 involving "Medicare Kickback Conspiracy" and covered in Paragraphs 1 through 12 of the indictment. Paragraph 12 of the indictment alleges that "in furtherance of the conspiracy and to effect the illegal objects thereof," Petitioner together with his co-conspirators committed numerous overt acts spanning 1990 through 1997 (eight years). Specifically, subparagraph 12(a) states that on repeated occasions from in or about 1990 through in or about 1997, in the Bronx, New York, co-conspirators appropriated cash and used that cash to make kickbacks. Subparagraphs (b) through (n) identify 13 instances from January 1994 through January 15, 1997 whereby Petitioner allegedly received a cash kickback from a co-conspirator in exchange for the referral of patients, several of whom in each instance were allegedly Medicare patients. Petitioner's arguments before the ALJ and on appeal totally ignored the overt acts, spanning an eight-year period, that were listed in the indictment in support of Count 1. Petitioner was convicted of Count 1 as well as Counts 2 through 4. I.G. Ex. 2. The ALJ could reasonably rely on these acts identified with specificity in the indictment as acts resulting in Petitioner's conviction for Count 1 or at the very least as acts similar to acts resulting in the conviction for Count 1. Petitioner failed to raise any dispute of fact before the ALJ that he had actually committed any of these conspiratorial acts, relying entirely on arguments relating to the limited duration of acts specified in the indictment in support of Counts 2 through 4. Although there is no indication in the record that each and every overt act listed was a required element of the offense of conspiracy, the I.G.'s reliance on any and all acts exceeding one year in duration identified in the indictment following conviction by jury trial for Count 1 was reasonable and appropriate in the absence of a denial from Petitioner that he had in fact committed specific acts cited by the indictment for this offense.

Petitioner also argued that his exclusion from the New York State Medicaid program (based on his having surrendered his license to practice medicine in New York) may not properly be relied upon for finding an aggravating factor under 42 C.F.R. � 1001.102(b)(2) because that exclusion was based on the very same acts as his federal conviction and because his federal exclusion could vary depending on whether the state exclusion occurred before the federal exclusion or after. In pertinent part, section 1001.102(b)(2) provides for consideration as an aggravating factor of:

Whether the individual . . . has been the subject of any other adverse action by any . . . State . . . government agency . . ., if the adverse action is based on the same set of circumstances that serves as the basis for imposition of the exclusion.

Contrary to Petitioner's argument, this provision expressly recognizes that this aggravating factor may be considered precisely where the adverse action from the state government agency is based on the same set of circumstances that served as the basis for the imposition of the federal exclusion. While it is true that this factor could not be considered if the federal exclusion were to be imposed in advance of the adverse action by the state, that possibility would not be a legal basis for not applying this factor here, where the state action preceded the federal exclusion action. This Board has previously considered and upheld the application of this particular aggravating factor. See the Board's detailed discussion of this provision and its regulatory history (which was then found at 42 C.F.R. � 1001.102(b)(8)) in Fereydoon Abir, DAB No. 1764 (2001). We specifically noted in our discussion that a determination by a state regulatory body that the conduct in question was not only criminal but was a basis for an exclusion from a state Medicaid program could very well have a bearing on that individual's trustworthiness to participate in federal health care programs. Abir at 7-10.

3. We remand this appeal to the ALJ for further proceedings including an in-person hearing, if necessary, on the issue of whether a mitigating circumstance exists pertaining to his cooperation with Federal officials resulting in reports being issued by the appropriate law enforcement agency identifying program weaknesses or vulnerabilities.

Petitioner argued that the ALJ erred in granting "summary disposition" and that a hearing should have been held on the existence of a mitigating circumstance under 42 C.F.R. � 1001.102(c)(3). ⁽²⁾ That provision provides in pertinent part:

The individual's . . . cooperation with Federal . . . officials resulted in -

* * *

(ii) . . . reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses.

Petitioner argued that he had met with law enforcement officials and provided a proffer, which led to additional reports being issued. He further asserted upon "information and belief, the reports identified program weaknesses." Petitioner's Appeal Brief at 1.

Additionally, Petitioner asserted:

If the ALJ had any reasonable doubt about the accuracy of the representation made in Petitioner's Brief, then the appropriate course of action was to contact the federal prosecutor, who also happens to work for the Government.

Obviously, the prosecutor is the official in the best position to attest to the fact that Petitioner made proffer(s), and the person who is in the best position to provide the reports issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses.

The failure to investigate a mitigating factor is a manifest abuse of discretion, especially when all the information supporting the mitigating factor is in the hands of the Government officials.

Petitioner's Appeal Brief at 2.

In addressing Petitioner's arguments on this potential mitigating factor, the ALJ concluded:

[I]n order to survive a motion for summary judgment, Petitioner must present some evidence to show the existence of some issue of material fact. In this case Petitioner has failed to submit even his own affidavit or declaration to establish the existence of disputed fact. Accordingly, I conclude that there is no issue for hearing. Petitioner has not made a showing of the presence of a mitigating factor which would impact my conclusion that the ten-year period of exclusion is not unreasonable.

ALJ Decision at 13.

Based on the record before us, we conclude that it was improper for the ALJ to have granted summary judgment on the issue of the existence of this mitigating factor. First, the I.G. did not clearly raise a dispute of material fact in proceedings below concerning the existence of this factor. The I.G. argued before the ALJ that Petitioner failed to offer any documentation or other evidence to support his contentions that additional reports were issued or that these reports identified program weaknesses and that his contentions should therefore be rejected. While the I.G. thus complained about Petitioner's failure to submit evidence at that point in the process, the I.G. did not specifically deny Petitioner's assertions about this mitigating factor. The briefing process before the ALJ then closed with Petitioner reaffirming his request for a hearing that he had made at the outset of the proceedings. Nothing in the record before the ALJ indicates that Petitioner was advised through procedures or directly by the ALJ that he was required to submit some evidence such as his own affidavit in support of an undisputed allegation of fact in order to survive a motion for summary disposition. The Departmental Appeals Board Civil Remedies Inspector General (I.G.) Case Procedures (http://www.hhs.gov/dab/civil/proceduresig.html) provided to Petitioner contemplate that parties will submit lists of proposed witnesses and proposed exhibits in instances where the ALJ schedules an in-person hearing. See Civil Remedies Division Acknowledgment of Receipt of Appeal (August 14, 2002) (enclosing a copy of those procedures). The ALJ in this appeal had decided to delay making a decision on scheduling a hearing until the parties had provided written submissions. Petitioner could reasonably have expected to establish this mitigating factor at least in part by using his own hearing testimony and by using the documentary exhibits that accompanied his notice of appeal to us. While Petitioner could have submitted his own affidavit and these same exhibits prior to the ALJ's ruling on whether to schedule an in-person hearing, the Civil Remedies I.G. Case Procedures nowhere expressly require this. At the very least, the ALJ should have further developed the record to determine whether there was a genuine dispute of material fact concerning any element of this mitigating factor and to set further proceedings including a hearing, if necessary, to resolve any dispute. Moreover, although it is Petitioner's burden to establish this factor, Petitioner is correct that critical information in support of this factor may be in the federal government's possession rather than his own. Therefore, Petitioner here may have intended to subpoena the federal official(s) in the best position to know whether reports had been issued and whether the reports identified program weaknesses.

Conclusion

Based on the analysis above, we remand this case to the ALJ to provide Petitioner with further proceedings including an in-person hearing, if necessary, on the existence of this mitigating factor. If Petitioner is able to establish the existence of this factor, the ALJ should then consider whether the length of the exclusion remains within a reasonable range.

Judith A. Ballard

Cecilia Sparks Ford

Donald F. Garrett
Presiding Board Member

1. With his Appeal Brief, Petitioner submitted "Exhibit A," two proffer agreements dated July 27 and October 26, 1998. The I.G. did not object to Petitioner's submission. However, it is unnecessary for us to consider whether this exhibit may be admitted on appeal before us since the question of its admissibility is more appropriately considered by the ALJ on remand. Cf. 42 C.F.R. � 1005.21(f), which concerns the admission of evidence by the DAB on appeal when that evidence was not adduced at the ALJ's hearing. No hearing has yet been held in this case.

2. Although the I.G. moved for summary disposition, the ALJ actually granted summary judgment presumably on the assumption that there was no genuine dispute of material fact. However, as we discuss below, the ALJ did not set procedures to develop the record sufficiently to determine whether there was a dispute of material fact on this issue and whether Petitioner was therefore entitled to further proceedings including an in-person hearing.