SUBJECT:

Nichola Thomas Bleggi, D.C.,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner, Nicola Thomas Bleggi, D.C., is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(3) of the Social Security Act (the Act) (42 U.S.C. � 1320a-7(a)(2)), effective February 20, 2005, based upon his conviction of the felony criminal offense of health care fraud. There is a proper basis for exclusion. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)).

I. Background

The Inspector General for the Department of Health and Human Services (the I.G.) notified Petitioner by letter dated January 31, 2005, that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum statutory period of five years, pursuant to section 1128(a)(3) of the Act. The basis cited for the exclusion was Petitioner's felony conviction, as defined in section 1128(i) of the Act, in the State of Michigan, 6^th Judicial Circuit Court, Oakland County, of a criminal offense 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, including the performance of management or administrative services relating to the delivery of such items or services or 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. See 42 U.S.C. � 1320a-7(a); 42 C.F.R. � 1001.101(c).

Petitioner timely requested a hearing by letter dated February 10, 2005. The case was assigned to me for hearing and decision on March 3, 2005. On April 11, 2005, I convened a prehearing telephonic conference, the substance of which is memorialized in my Order dated April 11, 2005. Petitioner's counsel indicated during the conference that there is no dispute that Petitioner was convicted. The parties agreed that no oral hearing is necessary and that this case may be decided on the briefs and documentary evidence.

The I.G. filed his brief in support of exclusion on May 24, 2005 (I.G. Brief), with I.G. exhibits (I.G. Exs.) 1 through 6. Petitioner filed his brief in opposition to exclusion on June 30, 2005 (P. Brief), with Petitioner's exhibits (P. Exs.) 1 through 3. The I.G. filed a reply brief on July 27, 2005 (I.G. Reply). No objection has been made to the admissibility of any of the proposed exhibits and I.G. Exs. 1 through 6 and P. Exs. 1 through 3 are admitted.

II. Discussion

A. Findings of Fact

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the pleadings and the exhibits admitted. Citations may be found in the analysis section of this decision if not included here.

1. Petitioner pled no contest in the 6^th Judicial Circuit Court, Oakland County, Michigan, to one count of health care fraud that occurred on or about September 12, 1998, a violation of a Michigan statute. I.G. Exs. 3, 4.

2. On September 6, 2001, based upon his no contest plea, Petitioner was found guilty of one count of felony health care fraud. I.G. Ex. 4.

3. On September 3, 2003, Petitioner was sentenced to one year of probation. I.G. Ex. 5.

4. Petitioner's offense occurred after August 21, 1996, the date of enactment of the Health Insurance Portability and Accountability Act of 1996. I.G. Ex. 3.

5. Petitioner was notified by the I.G., by letter dated January 31, 2005, that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum mandatory period of five years pursuant to sections 1128(a)(3) and 1128(c)(3)(B) of the Act. I.G. Ex. 1.

6. Petitioner requested a hearing by letter dated February 10, 2005. I.G. Ex. 2.

B. Conclusions of Law

1. Petitioner's request for hearing was timely and I have jurisdiction.

2. The parties waived oral hearing, and disposition based upon the documentary evidence and written submissions of the parties is appropriate in this case.

3. Petitioner was convicted within the meaning of section 1128(i) of the Act by the 6^th Judicial Circuit Court, Oakland County, Michigan, based upon his plea of no contest.

4. Petitioner was convicted of the felony offense of health care fraud.

5. The offense of which Petitioner was convicted occurred after the enactment of the Health Insurance Portability and Accountability Act of 1996.

6. There is a basis for excluding Petitioner under section 1128(a)(3) of the Act.

7. Exclusion pursuant to section 1128(a)(3) of the Act is mandatory.

8. The minimum period of Petitioner's exclusion pursuant to section 1128(a) is five years beginning on February 20, 2005, 20 days from the date of the January 31, 2005 I.G. notice of exclusion.

9. Pursuant to section 1128(c)(3)(B) of the Act, a five year exclusion is presumptively reasonable and unaffected by any extenuation or mitigation.

C. Issues

The Secretary of Health and Human Services (the Secretary) has by regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and,

Whether the length of the exclusion is unreasonable.

42 C.F.R. � 1001.2007(a)(1). In this case, there is no issue as to the reasonableness of the proposed period of exclusion as it is the minimum period of five years mandated by the Act. The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. � 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. � 1005.15(b) and (c).

D. Applicable Law

Petitioner's right to a hearing by an ALJ and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. � 1320a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction.

Pursuant to section 1128(a)(3) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual convicted of a felony under federal or state law of a criminal offense that occurred after August 21, 1996 (the date of enactment of the Health Insurance Portability and Accountability Act of 1996), 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, including the performance of management or administrative services relating to the delivery of such items or services or 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.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. � 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

E. Analysis

(1) There is a basis for Petitioner's exclusion pursuant to section 1128(a)(3) of the Act and exclusion is mandatory.

Petitioner does not dispute that he pled no contest to one of ten counts of health care fraud in violation of a Michigan statute. Based upon his no contest plea, Petitioner was found guilty of one count of felony health care fraud on September 6, 2001, and he was sentenced to one year of probation on September 3, 2003. Petitioner does not dispute that the offense of which he was convicted occurred on or about September 12, 1998 and after August 21, 1996. P. Brief at 4; I.G. Exs. 3, 4, 5; P. Ex. 1.

Petitioner concedes that section 1128(a)(3) of the Act "authorizes the Secretary . . . to exclude from participation in any federal health care program" a provider with a conviction such as Petitioner's. P. Brief at 3. Petitioner further concedes that "if the I.G. excludes a provider pursuant to section 1128(a), the minimum period of exclusion is 5 years. . . ." Id. Petitioner acknowledges that he was convicted within the meaning of the Act. Id. at 9. Petitioner argues, however, that the I.G. is not required to exclude all individuals with convictions such as Petitioner's without consideration of the underlying circumstances and that the I.G.'s decision to exclude him pursuant to section 1128(a)(3) is subject to review for abuse of discretion. ⁽¹⁾

Petitioner's goal is to have the facts related to his offense and the conviction reviewed with the possibility of no exclusion or an exclusion of less than five years. However, Congress has not given the Secretary, the I.G., or me the discretion not to exclude Petitioner or to reduce his period of exclusion below five years. Section 1128(a) of the Act is entitled "Mandatory Exclusion" and indicates in the first line that the "Secretary shall exclude" those individuals and entities who fit within any of its four provisions. The language of the Act is clear and it requires or mandates that the Secretary exclude under section 1128(a) when it is applicable. ⁽²⁾ See Stacy Ann Battle, D.D.S. and Stacy Ann Battle, D.D.S., P.C., DAB No. 1843 (2002); Lorna Fay Gardner, DAB No. 1733 (2002); Jose Grau, M.D., DAB CR930 (2002). In this case, there is no dispute that Petitioner was convicted of an offense within the scope of section 1128(a)(3), thus exclusion is mandated by Congress. The Secretary, the I.G., and I cannot deviate from the clear direction of Congress.

(2) Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of exclusion under section 1128(a) is five years.

Petitioner has conceded that the minimum period of exclusion pursuant to section 1128(a) is five years as mandated by section 1128(c)(3)(B). P. Brief at 3.

Regarding Petitioner's concern that his exclusion is punitive, double jeopardy, or in violation of due process, it has been held that the purpose and effect of exclusion is civil and remedial, intended to protect the Medicare and Medicaid programs from fraud and abuse and to protect the beneficiaries and recipients who rely on the programs; and that neither the remedy of exclusion or its purpose is punitive and criminal, and therefore subject to scrutiny under the double jeopardy clause or the prohibition against cruel and unusual punishment. Susan Malady, R.N., DAB No. 1816 (2002); Mannochio v. Kusserow, 961 F.2d 1539 (11th. Cir. 1992). ⁽³⁾ Exclusion is more analogous to the revocation of a professional license than to a punishment and does not constitute double jeopardy. Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990). No doubt Petitioner is adversely affected by his exclusion, but its purpose is remedial and protective, not punitive. Narendra M. Patel, M.D., DAB No. 1736, at 11 (2000).

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid and all federal health care programs for a period of five years, effective February 20, 2005, 20 days after the January 31, 2005 I.G. notice of exclusion.

Keith W. Sickendick

Administrative Law Judge

1. Petitioner argues that construing the provisions of the Act to require mandatory exclusion for a minimum of five years without consideration of the underlying circumstances is unconstitutional. Whether or not the provisions of the Act are constitutional is not an issue within my jurisdiction as I am bound to follow the Act.

2. The mandatory nature of section 1128(a) is also consistent with the fact that section 1128(b) of the Act is entitled "Permissive Exclusion" and provides the "Secretary may exclude . . . ." based upon other types of conduct or omissions. There is no argument by Petitioner in this case that he was subject to permissive exclusion under section 1128(b) rather than section 1128(a), and such argument would have been without merit anyway.

3. The exclusion remedy serves twin congressional purposes: the protection of federal funds and program beneficiaries from untrustworthy individuals and the deterrence of health care fraud. S. Rep. No. 109, 100th Cong., 1st Sess. 1-2 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 686 ("clear and strong deterrent"); Joann Fletcher Cash, DAB No. 1725, at 18 (2000) (discussing trustworthiness and deterrence). When Congress added section 1128(a)(3) in 1996, it again focused upon the desired deterrent effect: "greater deterrence was needed to protect the Medicare program from providers who have been convicted of health care fraud felonies . . . ." H.R. Rep. 496(I), 104th Cong., 2nd Sess. (1996), reprinted in 1996 U.S.C.C.A.N. 1865, 1886.