I sustain the Inspector General's (I.G.) determination to exclude Petitioner, Mohammad A. Adas, M.D., from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. I find that the I.G. is authorized to exclude Petitioner under section 1128(a)(3) of the Social Security Act (Act) and that the Act mandates a minimum five-year exclusion.

I. Background

By letter dated November 28, 2003, the I.G. notified Petitioner of the I.G.'s decision to exclude him from program participation for five years. The letter explained that the exclusion was imposed pursuant to section 1128(a)(3) of the Act, because Petitioner was convicted of a felony offense related to fraud, theft, embezzlement, breach of fiduciary duty, or other financial misconduct in connection with the delivery of a health care item or service or any act or omission in a health care program operated or financed by any federal, state, or local government agency. By letter dated January 14, 2004, ⁽¹⁾ Petitioner requested review, and the matter has been assigned to me for resolution. I held a telephone pre-hearing conference on March 1, 2004, at which the parties agreed that the only issue in this case is one of law; that is, whether the crime of which Petitioner was convicted falls within the definition section 1128(a)(3). See Order and Schedule for Filing Briefs and Documentary Evidence, dated March 2, 2004.

Thereafter, the I.G. submitted his motion and brief (I.G. Brief), accompanied by six exhibits (I.G. Exs. 1-6). Petitioner filed a response in opposition to the I.G. Brief (P. Brief), with one unmarked exhibit. I have marked Petitioner's exhibit as P. Ex. 1. The I.G. submitted a reply to Petitioner's Brief (I.G. Reply). In the absence of objection, I admit I.G. Exs. 1-6 and P. Ex. 1.

II. Applicable Law

Section 1128(a)(3) of the Act requires the Secretary of Health and Human Services to exclude from participation in any federal health care program, as defined in section 1128(B)(f) of the Act:

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(3) shall be for a period of not less than five years.

III. Issue

The sole issue before me is whether the criminal offense of which Petitioner was convicted related to fraud, theft, embezzlement, breach of fiduciary duty, or other financial misconduct in connection with the delivery of a health care item or service or any act or omission in a health care program operated or financed by any federal, state, or local government agency, within the meaning of section 1128(a)(3) of the Act.

If I conclude that section 1128(a)(3) applies to Petitioner's case, Petitioner must be excluded for a minimum period of five years. Accordingly, the reasonableness of the length of the exclusion is not an issue.

IV. Discussion

The critical facts of this case are not in dispute. On April 16, 2002, in the Common Pleas Court, Lucas County, Ohio, Petitioner pled no contest and was found guilty of seven felony counts of complicity in the commission of practicing medicine or surgery without a certificate, in violation of Ohio Rev. Code �� 2923.03(A)(2), 4731.441, and 4731.99(A). I.G. Exs. 3, 4, 5; P. Brief at 5.

I make findings of fact and conclusions of law to support my decision in this case. I set forth each finding below, in italics, as a separate numbered or lettered heading.

Petitioner pled no contest to seven counts of complicity in the commission of practicing medicine or surgery without a certificate. I.G. Ex. 4. Petitioner's plea was accepted by the court, which also made a finding of guilty. Id. Pursuant to section 1128(i) of the Act, an individual has been "convicted" of a criminal offense when a plea of guilty or nolo contendere has been accepted by a federal, state, or local court. Act, section 1128(i)(3); see also 42 C.F.R. � 1001.2. The offense of which Petitioner was convicted is described as a "felony of the 5^th degree" in the court's minute order. I.G. Ex. 4. See also I.G. Ex. 5.

Section 1128(a)(3) provides that it applies to convictions for conduct occurring after the enactment of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The HIPAA statute was enacted on August 21, 1996. Pub. L. 104-191, 110 Stat. 1936 (1996); see also 42 C.F.R. � 1001.101(c). On December 13, 2001, the Grand Jury for the Lucas County Common Pleas Court indicted Petitioner on seven counts of complicity in the commission of practicing medicine or surgery without a certificate. I.G. Ex. 3. The indictment charges that Petitioner's criminal acts occurred between February and August of 2001. Id. Accordingly, Petitioner's conviction was for acts that occurred after the enactment of the HIPAA statute.

Petitioner pled no contest and was convicted of complicity in the practice of medicine by his unlicensed office staff. The I.G. contends that this conviction is related to fraud, within the meaning of section 1128(a)(3) of the Act. The I.G. relies on the dictionary definition of fraud, which is "a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment." Black's Law Dictionary (7^th ed. 1999). Under this definition, the practice of medicine by an unlicensed individual would represent fraud, in that the unlicensed person engaging in the practice of medicine knowingly conceals from the patient the fact that he or she is lacks the proper credentials. The patient, in turn, relies on this misrepresentation to his or her detriment by subjecting him or herself to treatment by the unlicensed practitioner. Petitioner, however, was not himself convicted of the practicing medicine without a certificate. Instead, he was convicted of complicity in the practice of medicine by his unlicensed staff.

Petitioner argues that he lacked the requisite intent to mislead his patients and, therefore, his conviction should not be viewed as related to fraud. P. Brief at 7. According to Petitioner, the conduct which gave rise to his conviction occurred when he was suffering from alcohol addiction. During this time, he was depressed and was drinking heavily. He would leave his office early in the day to go home, drink alcohol, and sleep. P. Ex. 1, at 5. On days he left the office early, Petitioner claims he instructed his office staff to call patients to reschedule their appointments or to refer the patients to other physicians. Id. at 8. See also P. Brief at 4. On some occasions, however, Petitioner's unlicensed office staff continued to see patients in Petitioner's absence. Petitioner contends that his staff did this without his knowledge and without his consent. P. Brief at 4-5.

As support for this position, Petitioner relies on the Report and Recommendation of the hearing examiner of the State Medical Board of Ohio (P. Ex. 1). Petitioner implies that the characterization of events outlined above was accepted by the hearing examiner. The sections of the report cited by Petitioner, however, are no more than the hearing examiner's recitation of Petitioner's own testimony, and do not contain any finding as to the credibility of that testimony. Indeed, the Report concludes with the following statement:

P. Ex. 1, at 17. Far from supporting the view that Petitioner did not know of or consent to the unauthorized practice by his staff, this statement indicates to me that the hearing examiner concluded that Petitioner had delegated physician responsibilities to his staff, but failed to accept fully the seriousness of his conduct. Rather than constituting facts, therefore, Petitioner's statements about his lack of intent constitute nothing more than an impermissible collateral attack on his conviction, as the I.G. contends. See I.G. Reply at 4.

The regulations explicitly preclude my finding facts that would contradict those underlying Petitioner's conviction:

42 C.F.R. � 1001.2007(d); see also Joann Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, R. Ph., DAB No. 1380, at 8 (1993). The indictment to which Petitioner pled no contest charges that, on seven occasions, Petitioner "did recklessly aid or abet another or others in committing the offense . . . [of] COMPLICITY IN THE COMMISSION OF PRACTICING MEDICINE OR SURGERY WITHOUT A CERTIFICATE." I.G. Ex. 3 (italics added). The court entered a finding of guilty against Petitioner. This represents a finding that each element of the crime charged was established. Thus, I can conclude that, at a minimum, Petitioner acted recklessly with regard to the practice of medicine by his unlicensed staff.

Recklessness is "characterized by the creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to this risk." Black's Law Dictionary (7^th ed. 1999). Petitioner's conviction therefore establishes that he created a substantial and unjustifiable risk that his patients would be subjected to medical practice by unlicensed persons and consciously (or deliberately) disregarded that risk. I have already concluded that the practice of medicine by unlicensed individuals is related to fraud. I find that Petitioner's conviction for acting with reckless disregard for the risk that his patients would be subjected to fraud (i.e. treatment by unlicensed personnel) is likewise related to fraud, within the meaning of section 1128(a)(3).

Further, even if I were to conclude that Petitioner's conviction was not related to fraud, I would nevertheless conclude that Petitioner was subject to exclusion pursuant to section 1128(a)(3). This is because I find that Petitioner's conviction for complicity in the practice of medicine or surgery without a certificate is also related to breach of fiduciary responsibility within the meaning of that section.

There exists a fiduciary relationship between physicians and their patients. Bruce Lindberg, D.C., CR233 (1992). In Lindberg, the ALJ observed: The medical community recognizes that the relationship between health care providers and patients is inherently a dependency relationship. Typically, health care providers are respected authority figures, and patients are vulnerable because they are in need of professional advice and treatment in areas pertaining to their health. The relationship induces the patient to place great faith in the health care provider and to believe that the health care provider is the patient's ally who is committed to act in his best interests.

Id. at 17. Petitioner, by recklessly disregarding the risk that his patients would be treated by unlicensed personnel, breached his fiduciary duty to his patients. Accordingly, his conviction for those acts is related to a breach of fiduciary responsibility within the meaning of section 1128(a)(3) of the Act.

Petitioner argues that his conviction did not involve the fraudulent billing of Medicare, Medicaid, or any private insurance company. P. Brief at 7. However, no such finding is required for section 1128(a)(3) to apply. As the I.G. points out (I.G. Reply at 7), the statute uses the disjunctive "or," so that a conviction may be subject to the mandatory exclusion if it meets either one of two requirements. Section 1128(a)(3) applies to convictions "with respect to any act or omission in a health care program . . . operated by or financed in whole or in part by any Federal, State, or local government agency." ⁽²⁾ Alternatively, section 1128(a)(3) also applies to convictions "in connection with the delivery of a health care item or service." There can be no dispute that Petitioner's conviction was for conduct "in connection with the delivery of a health care item or service" within the meaning of the statute. An explicit element of the crime of which Petitioner was convicted is "practicing medicine or surgery." Accordingly, Petitioner's conviction necessarily implies a finding that conduct occurred that would constitute the practice of medicine or surgery (if performed by a licensed individual). It is therefore immaterial that Petitioner's offense did not have any connection to fraudulent billing of a health care program.

For the reasons I have discussed, I find that Petitioner was convicted, in connection with the delivery of a health care item or service, of a felony offense related to fraud or breach of fiduciary responsibility. Petitioner is therefore subject to mandatory exclusion pursuant to section 1128(a)(3) of the Act.

An exclusion under section 1128(a)(3) of the Act must be for a minimum mandatory period of five years. Act, section 1128(c)(3)(B). Specified aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. � 1001.102(b). When aggravating factors justify an exclusion longer than five years, specified mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c). But, when, as here, the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. � 1001.2007(a)(2).

V. Conclusion

For the reasons discussed above, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs, and I uphold the five-year exclusion.