SUBJECT:

Jeffrey Gottlieb, M.D., a/k/a Jeffrey Gotlieb,

Petitioner,

The Inspector General.

DECISION

I decide that the Inspector General (I.G.) is authorized to exclude Petitioner, Jeffrey Gottlieb, M.D., from participating in Medicare and other federally funded health care programs. Additionally, I decide that the I.G.'s determination to exclude Petitioner from participating in these programs for a period of at least 20 years is not unreasonable.

I. Background

On July 31, 2003, the I.G. notified Petitioner that he was being excluded from participation in Medicare and other federally funded health care programs for a minimum of 20 years. The I.G. advised Petitioner that he was being excluded pursuant to sections 1128(a)(1) and 1128(a)(4) of the Social Security Act (Act). He advised Petitioner that the length of the exclusion was based on the presence of certain aggravating factors in Petitioner's case.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I learned that Petitioner is presently incarcerated but that he is represented by an attorney. I made several unsuccessful attempts to arrange a telephone pre-hearing conference call at which I, counsel for the I.G., and Petitioner's counsel could discuss procedural options in this case. I notified counsel for both parties of the date and time of each attempted call. On each attempt, at the appointed date and time, I was able to make telephone contact with the I.G.'s counsel but not with Petitioner's counsel. My calls to her office were not answered. Finally, I sent an order in which I offered Petitioner and his counsel the option of waiving the telephone pre-hearing conference and proceeding to have me hear and decide this case based on written submissions. In response, counsel for Petitioner advised me that Petitioner waived the telephone pre-hearing conference and agreed to proceed based on written submissions.

The I.G. timely filed a brief and proposed exhibits. ⁽¹⁾ Petitioner failed to file a timely response to the I.G.'s brief. On August 4, 2004, after the deadline for filing a response had expired, Petitioner's counsel filed a document titled "Petitioner's Opposition to Inspector General's Motion for Summary Judgment and Request for Stay of Proceedings." In this document, Petitioner failed to address any of the substantive arguments raised by the I.G.'s brief. Instead, Petitioner argued that this case is not ripe for adjudication because Petitioner's convictions are on appeal before the Alaska Court of Appeals. Additionally, he argued that I should stay the proceedings in this case pending completion of the appeal.

The I.G. submitted seven proposed exhibits (I.G. Ex. 1 - I.G. Ex. 7) with the brief. Petitioner has not objected specifically to my receiving any of these proposed exhibits into evidence. Consequently, I receive into evidence I.G. Ex. 1 - I.G. Ex. 7.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. It is appropriate that I decide this case at this time;

2. The I.G. is authorized to exclude Petitioner; and

3. The length of the exclusion, 20 years in this case, is reasonable.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) which I set forth below under numbered headings. I discuss each Finding in detail.

1. It is appropriate that I decide this case at this time.

Petitioner avers that he has challenged the convictions that are the basis for the I.G.'s exclusion determination via an appeal to the Alaska Court of Appeals. Petitioner contends that, given the pendency of his appeal, it would be premature for me to decide this case now. According to Petitioner, any or all of the findings of fact that underlie the I.G.'s determination might be reversed should he prevail in his appeal. Such an outcome would render the exclusion determination moot, according to Petitioner.

A court appeal challenging the findings that are the basis for an exclusion does not mandate that the administrative hearing process be stayed. Reasons of efficiency dictate that these cases be resolved expeditiously and not be allowed to become stale pending the outcome of State or federal appeals of predicate convictions. There is no legitimate reason to allow this case to drag on undecided while Petitioner pursues his State court appeal. I take notice that appeals of convictions sometimes take years to complete, especially if the convicted party is diligent in pursuing every conceivable opportunity for review.

Moreover, Petitioner is not disadvantaged by having this case heard and decided now. First, Petitioner must be excluded at least until I decide his case whether or not I postpone issuing a decision. I have no authority to stay his exclusion while the case is pending. See 42 C.F.R. � 1005.4(c). Thus, whether I delay issuing a decision in this case or not has no effect on the actual exclusion. Second, regulations direct the I.G. to reinstate Petitioner should he succeed in having his convictions overturned or vacated on appeal. 42 C.F.R. � 1001.3005(a). ⁽²⁾

As I note at footnote 1 of this decision, the I.G. characterized his motion as a motion for summary judgment. That is an inapt and somewhat misleading characterization of the process by which this case is being heard and decided. I am not issuing summary judgment here.

The regulations which govern hearings in cases involving exclusions imposed pursuant to section 1128 of the Act do not specifically allow for such cases to be disposed of by summary judgment. See 42 C.F.R. Part 1005. But, although the regulations are silent as to whether summary judgment may be entered in an exclusion case, administrative law judges have not hesitated to enter summary judgment in cases where summary judgment would be appropriate under the criteria for summary judgment set forth at Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate in a case where there are no disputed issues of material fact. Fed. R. Civ. P. 56.

However, summary judgment is not the process that I am utilizing to decide this case. The parties represented to me that the case could be tried based on their written submissions. That assumed that there might be disputed issues of material fact in this case but that I would resolve those disputes based on the parties' documentary exchanges. Furthermore, I did not foreclose the possibility that there might be a need to take testimony from the parties in person even as I accepted their representation that the case could be decided based on their written submissions. I would have not hesitated to schedule a hearing to receive testimony in person had either party asserted a need for such testimony and established that the proposed testimony was relevant and would not merely duplicate the contents of some document in the record. ⁽³⁾

2. The I.G. is authorized to exclude Petitioner pursuant to sections 1128(a)(1) and 1128(a)(4) of the Act.

The I.G. excluded Petitioner because the I.G. determined that Petitioner had been convicted of offenses that fall within the meaning of two sections of the Act, sections 1128(a)(1) and 1128(a)(4). Section 1128(a)(1) of the Act mandates the exclusion of any individual who is convicted of a criminal offense relating to the delivery of a Medicare or State Medicaid item or service. Section 1128(a)(4) of the Act mandates the exclusion of any individual who is convicted of a felony which occurred after August 21, 1996, relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

The evidence offered by the I.G. to support these determinations is as follows:

� On April 27, 2000, a 236-count criminal information was issued against Petitioner in the District Court for the State of Alaska, Third Judicial District. I.G. Ex. 1. The information included five felony counts of theft in amounts ranging up to more than $25,000. Id. at 3 - 4. Additionally, it included 224 felony counts of unlawful delivery of controlled substances. Id. at 5 - 62.

� The information alleged that Petitioner fraudulently obtained a license to practice medicine in Alaska from the Alaska Medical Board on September 30, 1993. I.G. Ex. 1 at 63. Allegedly, Petitioner did so by submitting an application for a license to practice medicine that contained a false claim about Petitioner's medical training. Id. at 63 - 64. The information alleged that, between January 18, 1994 and March 15, 2000, Petitioner stole $179,794.75 in public funds from Alaska's Medicaid program. Id. at 64. It alleged that, during the same period, Petitioner delivered dozens of prescriptions for a variety of controlled substances to individuals without a medical necessity existing for those controlled substances. Id.

� On April 26, 2002, after a trial by jury, Petitioner was convicted of all counts of the information except Counts 234 and 235. ⁽⁴⁾ I.G. Ex. 2 at 1; see I.G. Ex. 1.

Petitioner did not attempt to rebut any of this evidence. He argues that he has appealed his convictions and that any or all of them might be overturned on appeal. However, as of this date, he stands convicted in Alaska State court of 234 criminal offenses as described in the criminal information that is in evidence as I.G. Ex. 1. ⁽⁵⁾

Petitioner plainly was convicted of criminal offenses that fall within the purview of sections 1128(a)(1) and 1128(a)(4) of the Act and, consequently, the I.G. is authorized to exclude Petitioner pursuant to either or both of these sections. First, Petitioner's theft of monies from Alaska's Medicaid program is a criminal offense that is related to the delivery of an item or service under that program, within the meaning of section 1128(a)(1) of the Act. It is long settled law that theft of monies from Medicare or a State Medicaid program establishes the requisite relationship. Second, Petitioner's convictions of numerous offenses involving unlawful delivery of controlled substances obviously constitute unlawful prescription, distribution, or dispensing of such substances within the meaning of section 1128(a)(4) of the Act.

3. An exclusion of 20 years is reasonable.

Exclusions that are imposed pursuant to sections 1128(a)(1) and 1128(a)(4) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B). The I.G. is authorized to impose an exclusion which exceeds five years' duration for a section 1128(a)(1) or 1128(a)(4) conviction, but only in the circumstance where, after consideration of certain regulatory factors, the excluded individual's lack of trustworthiness makes such an exclusion reasonable. The exclusion provisions of section 1128 of the Act are remedial and not punitive.

The criteria for determining whether an exclusion beyond the five-year minimum period is reasonable are set forth in regulations at 42 C.F.R. � 1001.102. This regulation defines certain aggravating and mitigating factors whose presence in an individual's case may be the basis for lengthening or, in some instances, reducing, an exclusion. 42 C.F.R. �� 1001.102(b)(1) - (9); (c)(1) - (3). ⁽⁶⁾

The aggravating and mitigating factors operate as rules of evidence in exclusion cases where the length of the exclusion is at issue. They tell the trier of fact what evidence is or is not relevant to deciding whether the length of an exclusion is reasonable. Evidence that does not relate to one of the aggravating or mitigating factors may not be considered in deciding the length of an exclusion. However, the factors do not establish a formula for deciding whether an exclusion is reasonable. Indeed, the factors operate as rules of evidence even as the Federal Rules of Evidence operate in civil cases that are brought in federal courts. They determine what may be considered as relevant. But they do not operate to assign weight to evidence.

In any case in which the length of an exclusion is at issue, the administrative law judge must look at the facts that relate to any aggravating or mitigating factor that is established by the parties and answer the following question: what does this evidence say about the excluded individual's trustworthiness to provide care to program beneficiaries and recipients? Evidence which shows that an individual manifests a high degree of untrustworthiness justifies a lengthier exclusion than evidence which shows that the excluded individual is relatively more trustworthy to provide care.

In this case, the I.G. alleged, and I find proved, the presence of four aggravating factors. Petitioner neither alleged nor proved the presence of any mitigating factors.

The four aggravating factors in this case are:

� The acts resulting in Petitioner's conviction, or similar acts, caused or were intended to cause a financial loss to a government program of $5,000 or more. 42 C.F.R. � 1001.102(b)(1). The counts of theft of which Petitioner was convicted do not specify a precise amount that Petitioner stole from the Alaska Medicaid program. See I.G. Ex. 1 at 3 - 5. But, the criminal information that was filed against Petitioner explains that the total amount of Petitioner's theft encompassed by the information was $179,794.75 (id. at 64), and Petitioner was convicted of all counts of theft. ⁽⁷⁾ That, standing alone, is sufficient evidence for me to infer that the financial impact of Petitioner's crimes on a government program was at least $5,000. Moreover, Petitioner was sentenced to pay restitution to the State of Alaska of $240,334.45. I.G. Ex. 3. It is not clear whether the restitution encompassed just the amount of Petitioner's theft or whether it was for added expenses such as the cost of investigating that theft, but the size of the restitution order is certainly proof of theft by Petitioner that equaled or exceeded $5,000.

� Petitioner committed the acts that resulted in his conviction, or similar acts, over a period of one year or more. 42 C.F.R. � 1001.102(b)(2). The counts of theft and unlawful prescription, dispensing or distribution of controlled substances of which Petitioner was convicted allege unlawful acts that took place during a period of time which began as early as January 18, 1994 and which ended on approximately March 28, 2000. I.G. Ex. 1 at 3 - 62. ⁽⁸⁾ Petitioner's crimes thus span a period of approximately six years and his convictions of these crimes provide ample evidence of criminal activity transpiring over a period of more than a year.

The I.G. contends that, on or about June 3, 1992, Petitioner engaged in acts that were "similar" to those which are the basis for his convictions for program fraud and, therefore, the period during which Petitioner engaged in unlawful conduct actually extends back to that date. These allegedly similar acts are described at Counts 1 and 2 of the criminal information and are the fact basis for Petitioner's convictions for uttering a false statement and a forged instrument in connection with his application for a license to practice medicine in Alaska. I.G. Ex. 1 at 1 - 2. The I.G. asserts that these acts are similar to those which involve Petitioner's convictions for program fraud because Petitioner would have been in no position to commit his theft of Medicaid funds but for his commission of the earlier unlawful conduct. I find the I.G.'s arguments to be persuasive. Petitioner's fraud in connection with his obtaining a license to practice medicine in Alaska was a necessary predicate to both his program fraud and his prescription of unnecessary controlled substances at a later date. Indeed, the fraudulent obtaining of a license was an element of Petitioner's subsequent program fraud. For these reasons, the fraud that Petitioner committed in 1992 in connection with his obtaining a license to practice medicine in Alaska is "similar" to the fraud he committed against the Alaska Medicaid program on later dates. It is also evident that both the license application fraud and the program fraud involved highly similar acts consisting of making false representations in order to obtain something of value from a government agency. In that sense also the crimes were similar.

I note that Petitioner, in his request for hearing, contends that he was not present in Alaska before July 1993. He has offered no proof to support this assertion. Moreover, even if his allegation is true, the fact that Petitioner was not physically present in Alaska in 1992 would not have been an impediment to his applying for a physician's license on the dates in question. The evidence shows that Petitioner submitted a license application on June 3, 1992. Petitioner would not have had to do that in person, but could easily have submitted the application by mail.

� Petitioner's sentence for his crimes included a term of incarceration. 42 C.F.R. � 1001.102(b)(5). Petitioner was sentenced to multiple concurrent prison terms for the offenses of which he was convicted. I.G. Ex. 2 at 2. These terms of incarceration included two terms of 10 years (with three years suspended), a term of seven years (with two years suspended), and a term of two years. Id.

� Petitioner was subject to additional adverse actions by State agencies or boards that were based on the same set of circumstances that served as the basis for the I.G.'s exclusion determination. 42 C.F.R. � 1001.102(b)(9). These actions include: suspension (and subsequently, revocation) of Petitioner's license to practice medicine in Alaska by the Alaska Medical Board; and revocation of Petitioner's license to practice medicine in Wisconsin by the Wisconsin Medical Examining Board. These adverse actions were premised on Petitioner's criminal convictions. I.G. Exs. 5 - 7.

An exclusion of 20 years is an extremely lengthy exclusion. Indeed, for most individuals, an exclusion of that length would be tantamount to a permanent exclusion from participating in federally funded health care programs. An exclusion for such a lengthy period should be reserved only for individuals who are extraordinarily untrustworthy.

The evidence in this case proves that Petitioner's conduct was so egregious as to establish him to be an extraordinarily untrustworthy individual and it fully justifies an exclusion of 20 years. Petitioner lied about his credentials in order to obtain a license to practice medicine in Alaska. He misrepresented his qualifications to practice in order to be certified as a Medicaid-approved provider. Petitioner consciously and deliberately stole funds from Alaska's Medicaid program for a period of approximately six years. The amount of his theft, although not precisely established, was substantial as is evidenced by the sentence that he pay restitution of more than $240,000.

But, as serious and as damaging as Petitioner's program fraud is, it does not begin to describe the danger that Petitioner poses for federally funded programs and for program beneficiaries and recipients of those programs. During a part of the same period that he was committing theft against a Medicaid program, Petitioner wrote numerous prescriptions for controlled substances that were not medically necessary. These included unnecessary prescriptions for the opiates Hydrocodone and Oxycontin (Oxycodone). I.G. Ex. 1 at 5 - 63. The evidence offered by the I.G. establishes that Petitioner functioned as a supplier of drugs for addicted individuals. He prescribed medications to these individuals in a way that had no medical purpose but was clearly intended to sustain their addictions.

Petitioner's unlawful prescriptions included a pattern of prescribing drugs to an individual who had been arrested for selling prescription drugs to police officers while on probation for an earlier drug offense. I.G. Ex. 1 at 101. In the month of June 1998, Petitioner issued 15 prescriptions to this individual, several of them for Oxycodone. Id. at 100 - 101. Over a 12-month period, Petitioner wrote over 120 prescriptions for this same individual. In May and June 1998, Petitioner prescribed to this individual what would amount to 15 doses of Schedule II opiates per day. Id. at 102.

In sum, Petitioner acted as the antithesis of a physician. Rather than treat diseases and illnesses, he exacerbated disorders and addictions by unlawfully prescribing controlled substances to individuals who appear to have been his patients. If these individuals were his patients, he harmed them rather than helped them. Alternatively, if these individuals were not his patients, then Petitioner misused his position to deal drugs unlawfully. In either event, he functioned wholly outside the bounds of the medical profession in a manner that was calculated to cause harm.

Steven T. Kessel

Administrative Law Judge

1. The I.G.'s brief is styled "The Inspector General's Brief in Support of Motion for Summary Judgment." For reasons that I explain below, at Finding 1, I do not consider this to be a case in which I am issuing a summary judgment.

2. The regulations do not specifically address the question of what rights Petitioner might have if he won on appeal a partial but not a full reversal of his convictions. However, presumably, Petitioner would have the right to petition the I.G. to modify his exclusion based on the arguable reversal of fact findings that are found to be aggravating factors in this case. And, if the I.G. refuses to agree to modify the exclusion, that might be a basis for Petitioner either to request a new hearing in his case or to petition me to reopen and revise my decision. In either event, however, Petitioner would receive administrative due process.

3. In cases involving exclusions imposed pursuant to section 1128 of the Act, there is only very rarely a need to receive testimony in person. That is because the authority to exclude in such cases generally derives from a judicial or administrative action taken in another forum which is memorialized in a document or documents. In such a case, the documents of record generally contain all facts that relate to the authority to exclude issue. Furthermore, the issue of reasonableness of the length of the exclusion usually is resolved by the same documents.

4. Count 234 of the information alleged that an individual other than Petitioner committed a misdemeanor related to unlawful possession of a controlled substance. Count 235 alleged that Petitioner and the other individual committed the felony offense of knowingly delivering a controlled substance .

5. At Finding 1, I discuss the consequences that might emanate from reversal or vacation of Petitioner's convictions.

6. Although evidence relating to mitigating factors may justify reducing an exclusion down to the five-year minimum term, in no instance may an exclusion be reduced to below the minimum. 42 C.F.R. �1001.102(c).

7. Four of the theft counts, Counts 3 - 6, alleged that Petitioner committed felony theft of property or services valued at more than $25,000. Counts 7 and 8 were allegations of felony theft involving amounts of at least $500 but less than $25,000. The other two counts, Counts 9 and 10, alleged misdemeanor thefts of less than $50. I.G. Ex. 1 at 3 - 5. I do not make a finding in this decision as to the exact amount Petitioner stole. But, I do find that the amounts alleged, both in the specific counts of the information and in the more general explanatory section of that document, coupled with the restitution ordered by the court, are high enough for me to infer that the total impact of Petitioner's theft equaled or exceeded $5,000.

8. The counts of theft allege crimes that occurred during a period that ran from about January 18, 1994 through March 28, 2000. The controlled substance related counts focus on events that occurred in 1997 and 1998. I.G. Ex. 1 at 3 - 62.