Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Bhupendra Patel, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: November 23, 1992
Docket No. C-92-607
Decision No. 1370
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE
DECISION
Bhupendra Patel, M.D., Petitioner, appealed the decision of
Administrative
Law Judge (ALJ) Charles E. Stratton upholding
Petitioner's eight-year
exclusion from participation in Medicare and
certain state health care
programs. Bhupendra Patel, M.D., DAB CR227
(1992) (ALJ Decision).
The Inspector General (I.G.) had imposed the
exclusion under section
1128(a)(1) of the Social Security Act (42 U.S.C.
. 1320a-7(a)(1)) based on
Petitioner's plea of guilty to and conviction
of three criminal charges
relating to Medicaid fraud before a New York
State court. On appeal,
Petitioner took exception to three findings of
fact and conclusions of law
(FFCLs) pertaining to the reasonableness of
the length of the eight-year
exclusion. For the reasons stated below,
we affirm the ALJ
Decision.
BACKGROUND
The following facts are not in dispute. 1/ Petitioner is a doctor
of
internal medicine licensed to practice in New York and New
Jersey.
Petitioner was indicted in a New York State court on two counts of
grand
larceny and 31 counts of offering a false instrument for filing.
Each
of the 33 counts involved Medicaid fraud. On June 7, 1990,
Petitioner
pled guilty to one count of grand larceny (Count 1 of the
indictment)
and two counts of offering a false instrument for filing (Counts
16 and
17 of the indictment). Counts 1 and 16 related to.Petitioner's
actions
in filing claims, over a period of more than two years, for
psychiatric
or psychotherapy services that he was neither qualified nor
licensed to
perform. Count 17 related to Petitioner's billing the
Medicaid program
for medical tests which he did not perform. Petitioner
was sentenced to
five years of probation and ordered to pay restitution in
the amount of
$123,500.
Petitioner was thereafter notified by the I.G. that he was being
excluded
from Medicare and certain state health care programs for eight
years.
2/ Subsequent to Petitioner's sentencing and exclusion by the
I.G., the
New York State court issued a Certificate of Relief from
Disabilities
(Certificate) to Petitioner on February 7, 1992. The
Certificate
relieves the holder "of all disabilities and bars to
employment, excluding
the right to be eligible for public office."
Petitioner Exhibit [P. Ex.] 1,
at 6.
PETITIONER'S EXCEPTIONS
Petitioner excepted to the following FFCLs:
16. Petitioner has demonstrated a pattern of
initiating and
submitting false, fraudulent and inaccurate
claims. Such
actions are harmful to the Medicaid program and show
a high
degree of culpability.
17. A lengthy exclusion is needed in this case
to satisfy
the remedial purposes of the Act.
18. The eight-year exclusion imposed and
directed by the
I.G. is reasonable.
ALJ Decision at 5 (citations omitted). Petitioner did not except
to
FFCLs 1-15, and we affirm and adopt these FFCLs without
further
discussion.
DISCUSSION
We have a limited role as the forum for administrative review of an
ALJ's
decision in an exclusion case. The.standard of review on
disputed
issues of fact is whether the ALJ Decision is supported by
substantial
evidence on the record. The standard of review on disputed
issues of
law is whether the ALJ Decision is erroneous. See 42 C.F.R.
.
1005.21(h); Joyce Faye Hughey, DAB 1221, at 11 (1990); Lakshmi N.
Murty
Achalla, DAB 1231, at 7 (1991). Petitioner was excluded under
section
1128(a)(1) of the Social Security Act (Act), which provides:
(a) MANDATORY EXCLUSION. -- The Secretary shall exclude
the
following individuals and entities from participation in
any
program under [Medicare] and shall direct that the
following
individuals and entities be excluded from participation
in
[Medicaid]: (1) CONVICTION OF PROGRAM-RELATED CRIMES. --
Any
individual or entity that has been convicted of
a
criminal offense related to the delivery of an item
or
service under [Medicare] or [Medicaid].
Section 1128(c)(3)(B) of the Act provides that --
In the case of an exclusion under subsection (a), the
minimum
period of exclusion shall not be less than five years . . .
.
Petitioner conceded before the ALJ that he was convicted of a
criminal
offense related to the delivery of an item or service under
Medicaid,
and that a mandatory exclusion was required by section
1128(a)(1). See
Prehearing Order and Schedule for Filing Submissions
for Summary
Disposition, at 2 (March 20, 1992). Petitioner's only
exceptions relate
to the length of the exclusion. Petitioner's
objection was summarized
in one sentence in his single-page brief (September
14, 1992) with
attachment (P. Br.) submitted to the Board:
The Petitioner's claim is that in light of the sentencing
judge
having granted petitioner a certificate of relief from
civil
disabilities based on the Probation Department's
recommendation
as being consistent with "defendant's rehabilitation and
in the
public interest," the exclusionary period of eight years
is
unreasonable.
In support of his exceptions to FFCLs 16, 17, and 18, Petitioner
then
incorporated by reference the arguments set forth in his
brief
previously filed with the ALJ. Id. Briefly summarized,
Petitioner's
previous arguments before the ALJ questioned the I.G.'s
assertion that
there were no mitigating factors which would justify
imposing.an
exclusion of less than eight years. Petitioner suggested
that
mitigating factors might include the fact that he pled guilty and
agreed
to make full restitution to the program, that he had never
been
previously convicted of fraudulent or impermissible conduct, and
that
the State court judge who had presided over each of the
proceedings
against Petitioner had granted Petitioner the Certificate and had
stated
that it was in the public interest to do so. See P. Br. before
the ALJ
at 4 (May 28, 1992).
Before the Board, the I.G. argued in response that the Certificate
should
not mitigate against the length of the exclusion and that the
length was
reasonable in light of Petitioner's offense. See generally
I.G. Br. at
12-17.
The Board recently had an opportunity to examine the significance of
a
Certificate of Relief from Disabilities issued by the State of New
York
in another mandatory exclusion case. See Janet Wallace, DAB
1326
(1992). In that case, the petitioner, a nurse, was excluded for
the
statutory minimum period of five years after a state court convicted
her
on a single count of failing to give required medication to a
patient
under her care. 3/ In Wallace, Petitioner argued to the Board
that the
Certificate of Relief from Disabilities, which was subsequently
awarded
to her by New York, precluded the use of her state court conviction
as a
basis for a mandatory exclusion. Id. at 11. We did not
agree. We
discussed the doctrine of separation of powers and cited a
federal
district court case in which the court found that New York's
Certificate
of Relief from Disabilities did not provide protection from the
loss of
federal employment. We concluded that New York could not
frustrate the
U.S. Department of Health and Human Services' strong interest
in
protecting Medicare and Medicaid patients and the integrity of
the
programs. Id. at 10-12.
This case does not present precisely the same issue. Petitioner is
not
arguing that the Certificate should.completely bar his
exclusion.
Instead, he is arguing that the Certificate should be considered
as a
mitigating factor in reducing his exclusion to a period shorter
than
eight years.
We conclude, however, that the ALJ did not err in determining that
the
issuance of the Certificate was not a mitigating factor which
required
reducing the length of Petitioner's exclusion. The ALJ
considered the
Certificate in his decision:
Petitioner argues that the fact that the State court saw fit
to
grant such a certificate is evidence of his trustworthiness
and
rehabilitation.
However, my reading of this certificate is that it is
of
little probative value in determining
the
trustworthiness of Petitioner, because the
certificate
is merely a device used by the State court to
allow
Petitioner to continue to practice medicine in order
to
meet the restitution payments imposed by the court.
The
State court saw fit to grant such a certificate as
being
consistent with Petitioner's rehabilitation and
the
public interest. However, it is not probative for
my
purposes because, in granting the certificate, the
State
court made no specific findings regarding
Petitioner's
trustworthiness or rehabilitation.
ALJ Decision at 11-12.
Petitioner did not argue that the State court, in fact, did make
specific
findings regarding his current or future trustworthiness or
past
rehabilitation. Petitioner instead seemed to assert that the mere
fact
of the issuance of the Certificate, along with the State court
judge's brief
reference to the Probation Department's recommendation
that issuance of the
Certificate would be consistent with Petitioner's
rehabilitation, is evidence
of his trustworthiness. P. Br. at 1.
However, we note that the sentence
in the judge's opinion granting the
Certificate which follows the reference
to the Petitioner's
rehabilitation states that the court --
would also note that the requested certificate may very
well
assist the defendant in remaining gainfully employed,
thereby
enabling him to continue making the required
restitution
payments to the State for the next three years.
Surely, in view
of the State's precarious financial predicament at
this. time,
it can ill afford to lose the substantial sum
of money that the
defendant has agreed to repay.
P. Ex. 1 at 4. Therefore, we find that substantial evidence
supports
the ALJ's finding that the Certificate was awarded primarily to
allow
Petitioner to repay the Medicaid program and did not provide evidence
of
Petitioner's rehabilitation. ALJ Decision at 11-12. While
the
Certificate is some evidence that Petitioner complied with the
plea
agreement and did not commit any further Medicaid fraud violations,
the
ALJ correctly concluded that it has little probative value on the
issue
of Petitioner's trustworthiness.
Even if we were to find (and we do not) that the Certificate was
evidence
of Petitioner's rehabilitation and trustworthiness and that it
should have
been considered as a mitigating factor in determining the
length of the
exclusion, we would still find that an exclusion of eight
years was not
extreme or excessive given Petitioner's offense. The ALJ
Decision
identified appropriate criteria for evaluating trustworthiness
in determining
whether the length of an exclusion imposed by the I.G.
was extreme or
excessive. ALJ Decision at 9-10 citing The Hanlester
Network, DAB 1347
at 46-47 (1992). 4/ These factors include the
seriousness of the
offense; the degree to which a petitioner is willing
to place the Medicare or
Medicaid programs in jeopardy; the failure to
admit misconduct, or express
remorse, or evidence rehabilitation; and
the likelihood that the offense or
some similar abuse will occur again.
Id.
The ALJ weighed these factors in a reasonable manner and concluded that
an
exclusion of eight years was not extreme or excessive. The ALJ
gave
particular weight to the fact that Petitioner willfully and
knowingly
submitted fraudulent claims for Medicaid reimbursement over a
period of
more than two years, and that the fraudulent claims totalled
$123,500, a
significant amount of money. ALJ Decision at 10-11.
We note that
Petitioner did not take exception to FFCLs 14 and 15, which
contain
these factual findings. Since Petitioner did not object to
FFCLs 14 and
15 and these facts are supported throughout the record, we find
that the
ALJ did not err in concluding in FFCL 16 that the
Petitioner
has.demonstrated a pattern of initiating and submitting
false,
fraudulent, and inaccurate claims and that such actions are harmful
to
the Medicaid program and show a high degree of culpability.
Therefore,
we affirm and adopt FFCL 16.
Based on Petitioner's conduct and the ALJ's conclusion in FFCL 16,
we
further find that the ALJ did not err in concluding both in FFCL 17
that
a lengthy exclusion was necessary in this case to satisfy the
remedial
purposes of the Act, and in FFCL 18 that the eight-year
exclusion
imposed and directed by the I.G. was reasonable. We find
that
Petitioner's suggested mitigating factors, such as his agreement to
make
full restitution to the program and his lack of prior convictions
for
fraudulent conduct, do not render an eight-year exclusion extreme
or
excessive.
CONCLUSION
For the reasons stated above, we affirm the ALJ's decision
that
Petitioner's eight-year exclusion was reasonable. We affirm and
adopt
each of the ALJ's FFCLs.
______________________________
Judith
A. Ballard
______________________________
Donald
F. Garrett
______________________________
Cecilia
Sparks Ford Presiding
Panel Member
1. See ALJ Decision, FFCLs 1-7.
2. "State health care program" is defined in section 1128(h) of the
Act
and includes the Medicaid program under Title XIX of the Act.
Unless
the context indicates otherwise, we use the term "Medicaid" here
to
refer to all programs listed in section 1128(h).
3. In Wallace, the petitioner was excluded under section
1128(a)(2),
which mandates the exclusion of any individual or entity
convicted of a
criminal offense relating to the neglect or abuse of patients
in
connection with the delivery of a health care item or service.
While
the elements of the offense differ from exclusions under
section
1128(a)(1), the minimum five-year period of exclusion is the same
under
both subsections.
4. The Hanlester Network involved an exclusion under section
1128(b)(7)
of the Act, which provides that the I.G. may exclude any
individual or
entity who has violated the federal anti-kickback statute,
found at
section 1128B(b) of the