SUBJECT:

Azhar Tahir, M.D.,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Azhar Tahir, M.D., from participating in Medicare and other federally funded health care programs for a period of 15 years. An exclusion of at least five years is mandated by Petitioner's conviction of a crime that falls under the purview of sections 1128(a)(1) and 1128(a)(3) of the Social Security Act (Act). The 15-year exclusion is reasonable based on evidence relating to aggravating factors and on the absence of any evidence relating to a mitigating factor.

I. Background

Petitioner is a physician who practiced medicine in Bath, New York. On April 30, 2004 the I.G. notified Petitioner that he was being excluded from participating in Medicare and other federally funded health care programs. The I.G. advised him that his exclusion was mandated based on his conviction of a criminal offense that fell within the purview of sections 1128(a)(1) and 1128(a)(3) of the Act. The I.G. also notified Petitioner that the length of the exclusion - 15 years - was justified by the presence of evidence relating to certain aggravating factors and by the absence of evidence relating to any possible mitigating factor.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a pre-hearing conference by telephone at which I advised the parties that it appeared that the case could be decided based on their written submissions. I advised them, however, that I would convene an in-person hearing if either party requested one and proffered evidence that was relevant and which needed to be heard in person.

Neither party requested an in-person hearing. The I.G. submitted a brief plus 10 proposed exhibits (I.G. Ex. 1 - I.G. Ex. 10), and a reply brief. Petitioner submitted a brief and two proposed exhibits (P. Ex. 1 - P. Ex. 2). Additionally, Petitioner submitted a very lengthy document with his hearing request which I am identifying as P. Ex. 3. Neither party objected to my receiving any of the proposed exhibits into evidence. Therefore, I receive into evidence I.G. Ex. 1 - I.G. Ex. 10, and P. Ex. 1 - P. Ex. 3.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. The I.G. is mandated to exclude Petitioner from participating in Medicare and other federally funded health care programs for a period of at least five years;

2. The 15-year exclusion imposed by the I.G. is reasonable.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. The I.G. is mandated to exclude Petitioner from participating in Medicare and other federally funded health care programs for a period of at least five years.

Petitioner was convicted of crimes that mandate for a period of at least five years his exclusion from Medicare and other federally funded health care programs. The exclusion in this case is mandated by sections 1128(a)(1) and 1128(a)(3) of the Act. The five-year minimum exclusion is mandated by section 1128(c)(3)(B) of the Act.

Section 1128(a)(1) mandates the exclusion of any individual who is convicted of a criminal offense that is related to the delivery of an item or service under Medicare or a State health care program (a State Medicaid program). Section 1128(a)(3) mandates the exclusion of any individual who is convicted of a criminal offense, occurring after August 21, 1996, that is related to fraud, theft, embezzlement, breach of fiduciary responsibility, 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. ⁽¹⁾

The undisputed evidence introduced by the I.G. proves that Petitioner was convicted of crimes that fall under both of these sections. On July 23, 2003, Petitioner executed a plea agreement in the State of New York, Steuben County, in which he agreed to plead guilty to the crimes of Grand Larceny in the Third Degree, and a Scheme to Defraud in the First Degree, each crime being a felony under New York law. I.G. Ex. 4 at 3. He specifically admitted that:

From on or about January 1, 1998 to March 11, 2003, in the County of Steuben, State of New York, as part of a single sustained criminal impulse and in execution of a general fraudulent scheme constituting a systematic ongoing course of conduct with intent to defraud the New York State Medicaid program, the Medicare program, Excellus Health Plan, Inc. and the New York State Insurance Fund, . . . [Petitioner] submitted and caused to be submitted to the above programs and insurers, claims which contained false and fraudulent pretenses concerning medical services that . . . [Petitioner] allegedly provided . . . .

Id. at 2 - 3. Petitioner's pleas were accepted on July 23, 2003 by the County Court of the State of New York, County of Steuben, and, as a consequence, Petitioner was adjudicated guilty and convicted of both felonies. I.G. Ex. 2 at 27.

Petitioner plainly was convicted of crimes that were related to the delivery of items or services under Medicare and New York's Medicaid program. That is evident from the face of his plea agreement and from his plea. The plea agreement also memorializes Petitioner's felonies, occurring after August 21, 1996, consisting of fraud that he perpetrated in connection with the delivery of health care items or services or acts or omissions in a health care program that is operated by the State of New York (the New York State Insurance Fund), a State government agency.

Conviction of a crime that falls under the purview of either section 1128(a)(1) or section 1128(a)(3) of the Act mandates an exclusion of at least five years. In this case, the I.G. established convictions falling under both of these sections and, thus, Petitioner must be excluded for at least five years.

2. The 15-year exclusion imposed by the I.G. is reasonable.

Section 1128 of the Act is remedial. Its purpose is to protect Medicare and other federally financed health care programs and the beneficiaries and recipients of program funds from individuals who have been established to be untrustworthy. An exclusion that is imposed pursuant to section 1128 is intended to accomplish this remedial purpose. An exclusion is remedial if it provides reasonable protection and is not excessive in its duration.

The Secretary of the United States Department of Health and Human services has published regulations which establish criteria for deciding the reasonable length of exclusions. The criteria for exclusions imposed pursuant to sections 1128(a)(1) and 1128(a)(3) of the Act are set forth at 42 C.F.R. � 1001.102(b) and (c). This regulation establishes aggravating and mitigating factors that are relevant to deciding whether an exclusion of more than five years in duration is reasonable in a case involving either sections 1128(a)(1) or 1128(a)(3). Id.

The aggravating and mitigating factors that are defined by the regulation function as rules of evidence for deciding whether an exclusion of a particular length is reasonable. Evidence which does not address one or more of the regulation's aggravating or mitigating factors is irrelevant to deciding whether an exclusion is reasonable.

My role, as the trier of fact in this case, is to consider de novo any evidence that relates to an aggravating or mitigating factor and to assign such evidence the appropriate weight. Like rules of evidence, the aggravating and mitigating factors at 42 C.F.R. � 1001.102(b) and (c) define what evidence is relevant but they do not prescribe the weight that must be assigned to that evidence. That decision is left to the administrative law judge and it must be made based on the unique circumstances of each case. I must decide independently whether the I.G.'s exclusion determination is reasonable. I must sustain an exclusion that falls within a reasonable range of exclusions for an individual, bearing in mind the evidence relating to aggravating and mitigating factors. I would find an exclusion to be excessive only if I conclude that it falls outside of a reasonable range of permissible exclusions based on the preponderance of the evidence relating to aggravating and mitigating factors.

In this case the I.G. established the presence of four aggravating factors. These are as follows:

� Petitioner's crimes caused or were intended to cause a financial loss of $5,000 or more to a Government program or to one or more entities. 42 C.F.R. � 1001.102(b)(1). Petitioner explicitly pled guilty to causing New York's Medicaid program, Medicare, Excellus Health Plan, Inc., and the New York State Insurance fund to make payments in reliance on Petitioner's false claims totaling in excess of $650,000. I.G. Ex. 4 at 3.

� The acts that resulted in Petitioner's conviction took place over a period of more than one year. 42 C.F.R. � 1001.101(b)(2). In pleading guilty Petitioner admitted that he committed his crimes during a period that began on or about January 1, 1998, and which continued to March 11, 2003. I.G. Ex. 4 at 2.

� Petitioner's sentence for his crimes included incarceration. 42 C.F.R. � 1001.102(b)(5). Petitioner's sentence for his crimes included six months' home confinement. I.G. Ex. 8 at 1. Under governing regulations, "incarceration" means any type of confinement, including home detention. 42 C.F.R. � 1001.2.

� Petitioner was the subject of other adverse action by a New York State agency that is based on his conviction of offenses that mandate his exclusion. 42 C.F.R. � 1001.102(b)(9). On August 14, 2003, New York's Medicaid program excluded Petitioner based on his convictions. I.G. Ex. 9. Additionally, Petitioner's license to practice medicine in New York has been suspended based on his convictions. I.G. Ex. 10.

Petitioner did not prove the existence of mitigating factors. See 42 C.F.R. � 1001.102(c). Indeed, Petitioner did not allege the presence of any factors that are recognized as mitigating by the regulation. Petitioner asserts that he is supported by many members of his community, that he maintains a caring relationship with his patients, and that he is providing a needed service to a medically underserved community. P. Ex. 1 at 6. None of these assertions - assuming their truth - comprise mitigating factors under the regulation. Consequently, they are irrelevant and I must disregard them in deciding whether Petitioner's exclusion is reasonable.

Petitioner also argues that evidence that might establish aggravating factors in addition to those proved by the I.G., is not present here. For example, Petitioner asserts that there is no evidence in this case that his unlawful conduct had a significant adverse impact on other individuals or program beneficiaries. See 42 C.F.R. � 1001.102(b)(3). He contends, in effect, that established aggravating factors should be offset by those that do not exist.

This argument is unpersuasive. Deciding on the length of an exclusion is not a matter of totaling up the aggravating factors that are present in a case, and then, by formula, deciding what constitutes a reasonable range. It is irrelevant that other possible aggravating factors are not present if the evidence that relates to aggravating factors that are established shows a level of untrustworthiness that justifies an exclusion of a particular length.

Consideration of the evidence relating to the aggravating factors proved by the I.G. shows Petitioner to be a highly untrustworthy individual. I find the 15-year exclusion to be reasonable based on this evidence. Particularly serious is evidence establishing the amount and duration of Petitioner's fraud.

Petitioner's admitted crimes are, in and of themselves, sufficient to justify an exclusion in the range of 15 years. Petitioner committed calculated and serious crimes over a period of approximately five years. It establishes that Petitioner used the vehicle of fraudulent claims to extract unlawfully a huge sum during this period - more than $650,000 - from Medicare and other health insurers including New York's Medicaid program.

Petitioner contends that many of the claims that he admitted to be fraudulent were, in fact, merely a product of his poor bookkeeping skills. Petitioner's brief at 3; P. Ex. 1 at 5, 8, 9. I find that Petitioner's present attempt to minimize the significance and financial impact of his crimes simply is not credible. It is apparent that Petitioner's forthrightness about his crimes depends on the setting he finds himself in. His present assertions of innocence are belied by the fact that Petitioner admitted, both in a written plea agreement and in open court, that he committed fraud in the amount that I describe. I.G. Ex. 2 at 24; I.G. Ex. 4 at 2. It may have been to Petitioner's advantage to admit to his crimes when he pled guilty, in order to avoid the possibility of being convicted after a trial and receiving a harsher sentence than he received. But, equally obvious, it is now to Petitioner's advantage to claim that he is not really guilty of fraud in order to evade a lengthy exclusion.

This is not the first time that Petitioner has attempted to retract his admission of fraud when it was to his advantage to do so. At his sentencing hearing for his crimes Petitioner, through his counsel, attempted to withdraw the guilty plea that he made on July 23, 2003. I.G. Ex. 5. He made that attempt, apparently, after discovering that his guilty plea might have implications for his professional license and his ability to maintain his practice. The court rejected this attempt, finding that Petitioner's plea was made knowingly, intelligently, and voluntarily. Id. at 23.

Finally, Petitioner asserts that the crimes to which he pled guilty are, in fact, low level felonies under New York law. He thus attempts to minimize the significance of his crimes. I do not find this argument to be persuasive. Even if the crimes of which he was committed are relatively low level felonies the impact of these crimes on health insurers was substantial. In deciding the issue of trustworthiness the amount of Petitioner's fraud and the duration of it is far more important than the technical characterization of his crimes under New York law.

Steven T. Kessel

Administrative Law Judge

1. The August 21, 1996 cutoff date is the enactment date of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").