SUBJECT: Arthur C. Haspel, D.P.M.,

Petitioner,

The Inspector General

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

Arthur C. Haspel, D.P.M., (Petitioner) appealed a decision by Administrative Law Judge (ALJ) Jose A. Anglada originally dated March 8, 2004 and amended on April 21, 2004 granting summary judgment for the Inspector General (I.G.). Arthur C. Haspel, D.P.M., DAB CR1149 (2004) (ALJ Decision). ⁽¹⁾ The ALJ Decision affirmed the I.G.'s determination that, under section 1128(a)(4) 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.

In reviewing an ALJ decision, we may decline to review the case, or may affirm, increase, reduce, reverse or remand any exclusion determined by the ALJ. 42 C.F.R. 1005.21(g).

The ALJ Decision contains five findings of fact and conclusions of law (FFCLs). Petitioner did not except to FFCLs 1 and 2, which we therefore affirm without further consideration. On appeal, Petitioner presented arguments constituting exceptions to FFCLs 3, 4 and 5. After reviewing the record to evaluate the issues presented by these exceptions, we have determined that we need not render a separate decision with respect to the exceptions to FFCL 3. We therefore decline review of and summarily affirm that FFCL.

We accept review for the limited purpose of reviewing FFCL 4, pertaining to the existence of a mitigating factor recognized under the regulation, and to reassess the reasonableness of the length of the exclusion imposed after concluding that this mitigating factor did exist, in addition to the three aggravating factors established by the I.G. ⁽²⁾ We agree with the ALJ's conclusion that there are no material facts in dispute that would require an in-person hearing to resolve the existence of the sole mitigating factor that Petitioner alleged to exist (or indeed to resolve the existence of the aggravating factors established by the I.G. in this case). Applying the appropriate standard of review, however, we reverse the ALJ's ultimate conclusion that the record here fails to demonstrate the existence of the mitigating factor alleged by Petitioner. ⁽³⁾

Here, the I.G. relied upon three aggravating factors and, finding no mitigating factors in existence, set the period of exclusion at 10 years in duration. The regulation provides that "[o]nly if any of the aggravating factors. . . justifies an exclusion longer than 5 years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than 5 years." Petitioner argued before the ALJ that the mitigating factor described in 42 C.F.R. � 1001.102(c)(2) existed. That section provides:

The 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.

The ALJ concluded based on remarks of the presiding judge in the transcript from the sentencing proceedings that the judge found that Petitioner suffered from an addiction. The ALJ also inferred, as Petitioner had argued, that the judge departed downward from the sentencing recommendation at least in part because of Petitioner's addiction. However, the ALJ stated that this was insufficient to prove the existence of the mitigating factor at section 1001.102(c)(2). The ALJ continued:

In the case of Joseph M. Rukse, Jr., R.Ph., DAB No. 1851 (2002), an appellate panel of the Departmental Appeals Board held that the plain language of the regulation requires that the sentencing court find that an individual suffered from a mental, emotional, or physical condition at the time the offenses were committed, and that the condition reduced the individual's culpability for the offenses. In the present case, the transcript of the sentencing hearing is silent as to the nexus in time between Petitioner's addiction and the conduct that led to his conviction. Likewise, the transcript contains no finding by the court that the addictive condition reduced Petitioner's culpability for the offenses of which he was convicted. I cannot agree with Petitioner that merely because the court imposed a lesser sentence than the maximum allowed by law, I may infer that the judge considered the mitigating information in the manner required under 42 C.F.R. � 1001.102(c)(2). For these reasons, I cannot conclude that Petitioner has proved the existence of the mitigating factor.

Id. at 8 (emphasis in original; footnote omitted).

On appeal, Petitioner argued that the ALJ erred by finding that the mitigating factor at 42 C. F. R. � 1001.102(c)(2) did not apply. Petitioner maintained that the ALJ was too rigid in applying the second prong of his analysis, i.e., whether the criminal court record demonstrated that the court found that Petitioner's condition reduced his culpability. Petitioner argued that the ALJ required Petitioner to show that the trial proceeding had produced a finding of fact (that Petitioner's addiction affected his culpability) where no finding of fact needed to be made at that level.

Petitioner also accused the ALJ of hairsplitting by refusing to find diminished culpability when looking at the trial record as a whole. Petitioner noted that the only testimony at his sentencing hearing, aside from his own, was from a physician who confirmed that Petitioner was suffering from a drug addiction which impaired his judgment. Petitioner stated that since the trial judge had observed at Petitioner's sentencing hearing that Petitioner was suffering from an addiction and imposed a lenient sentence, the ALJ should have drawn the conclusion that the trial judge had determined that Petitioner's addiction diminished his culpability. Petitioner contended that it was "ridiculous" to believe, as he intimated the ALJ did, that Petitioner developed a post-crime addiction that was responsible for the trial judge's lenient sentence. Id. at 7-8.

We agree with Petitioner that it is unreasonable to apply the regulation by requiring an explicit finding by the presiding judge in cases where the judge would not need to make an explicit finding for purposes of the sentencing proceeding itself. In those instances, it is sufficient to review the sentencing record as a whole and determine whether it would be reasonable to infer from the entire record that the presiding judge had made the determinations required by the regulation as part of the sentencing process.

In the instant case, there are several factors in the record that support the reasonable inference that the presiding judge had made the required determinations. The primary focus of Petitioner's own statement to the judge, as well as the unrebutted testimony of his single witness, and the argument to the court from his attorney (who had known Petitioner personally for 25 years) was the impact of Petitioner's addiction to drugs on his life both before and during the commission of the offenses. P. Ex. 2, at 16-21. The record also details the extensive and time-consuming efforts Petitioner took to rehabilitate himself from that addiction after his arrest. Id. at 7-10. The record is replete with details of the multiple negative effects of his addiction on his life and of his resulting impaired and confused mental state at the time he was committing the two counts of offenses with which he was charged. Id. at 16-21. The judge initially advised Petitioner that the maximum sentence was five years on each of the two counts, a fine of up to $250,000, and a term of supervised release of at least two years up to life. Id. at 3. The judge, however, clearly found that Petitioner was entitled to leniency since he sentenced him to only three months of home confinement and five years of supervised release and imposed no fine whatsoever. Id. at 22-26.

It is possible that the presiding judge considered factors in addition to the addiction in setting such a lenient sentence, including the fact that Petitioner was pleading guilty to the charged offenses. Given the testimony presented and the extent of the sentence reduction, however, it is not reasonable to infer from this record as a whole that the judge did not determine that Petitioner's addiction reduced his culpability for the offenses. Moreover, it would be an unreasonable application of the regulatory requirement at issue to have required the sentencing judge to have made these determinations explicitly in the transcript of the sentencing proceedings under the particular circumstances here where no such determinations were required by the sentencing process itself.

Accordingly, we conclude that Petitioner met his burden to establish the existence of the mitigating factor described in section 1001.102(c). We therefore revise FFCL 4 to read as follows:

There are no material facts in dispute that would require an in-person hearing to resolve. Petitioner established the existence of the mitigating factor recognized in 42 C.F.R. � 1001.102(c)(2).

Having concluded that Petitioner did establish that there is one mitigating factor to be balanced against the three aggravating factors established by the I.G., we now proceed to reassess whether the 10-year exclusion period still remains within a reasonable range. We conclude that the mitigating factor at section 1001.102(c)(2) established by Petitioner warrants a reduction in the length of the exclusion. This mitigating factor is entitled to significant weight since the court clearly determined that Petitioner's addiction significantly reduced his culpability, as evidenced by the light sentence imposed on him. On the other hand, we conclude that a 10-year period of exclusion would have been justified here based on the three aggravating factors in the absence of any mitigating factor. Under these circumstances, we conclude that an eight-year exclusion is reasonable, since it reduces the exclusion period by two years to account for a significant mitigating factor while it is three years longer than the mandatory minimum exclusion in recognition of the seriousness of the three aggravating factors.

We therefore revise FFCL 5 to read:

An eight-year exclusion is reasonable.

Conclusion

Based on the foregoing, we reduce the exclusion imposed by the I.G. to eight years based on the existence of a mitigating factor.

Judith A. Ballard

Cecilia Sparks Ford

Donald F. Garrett
Presiding Board Member

1. As the result of some initial confusion in Petitioner's identification of his exhibits before the ALJ, the ALJ Decision dated March 8, 2004 misstated the number of exhibits offered by Petitioner. The ALJ's amended decision, at pages 1-2, recognizes and corrects that error. See also transmittal letter for amended ALJ Decision (April 21, 2004).

2. FFCL 4 states:

There are no material facts in dispute that would require an in-person hearing to resolve. The record fails to demonstrate the existence of any mitigating factor recognized under the regulations.

3. Our standard of review of an ALJ decision 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).