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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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Alexander Urin, |
DATE: September 26, 2005 |
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The Inspector General.
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Docket No.C-05-253
Decision No. CR1352 |
| DECISION | |
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DECISION Petitioner, Alexander Urin, is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (the Act) (42 U.S.C. � 1320a-7(a)(1)), effective March 20, 2005, based upon his conviction of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. 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 February 28, 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)(1) of the Act. The basis cited for Petitioner's exclusion was his conviction in the United States District Court, Central District of California, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. See 42 U.S.C. � 1320a-7(a), 42 C.F.R. � 1001.101(a). Petitioner timely requested a hearing by letter dated March 28, 2005. The case was assigned to me for hearing and decision on April 13, 2005. On May 26, 2005, I convened a prehearing telephonic conference, the substance of which is memorialized in my Order dated June 6, 2005. The I.G. filed its brief in support of exclusion on June 27, 2005 (I.G. Brief), with I.G. Exhibits (I.G. Exs.) 1 through 5. Petitioner filed his brief in opposition to exclusion on July 27, 2005 (P. Brief), with no exhibits. The I.G. filed a reply brief on August 15, 2005 (I.G. Reply), with I.G. Exs. 6 and 7. No objection has been made to the admissibility of any of the proposed exhibits and I.G. Exs. 1 through 7 are admitted. II. Discussion
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.
The Secretary of the Department of Health and Human Services (the Secretary) has by regulation limited my scope of review to two issues:
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).
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. � 1230a-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 Medicare and Medicaid programs any individual convicted of a criminal offense related to the delivery of an item or service under title XVIII (Medicare) or under any State health care program. 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).
Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing. The right to hearing before an ALJ is accorded to a sanctioned party by 42 C.F.R. � 1005.2 and the rights of both the sanctioned party and the I.G. to participate in a hearing are specified in 42 C.F.R. � 1005.3. Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration. 42 C.F.R. � 1005.6(b)(5). The ALJ may also resolve a case, in whole or in part, by summary judgment. 42 C.F.R. � 1005.4(b)(12). Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); Thelma Walley, DAB No. 1367 (1992); see also, New Millennium CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000). As discussed more fully hereafter, there are no genuine issues of material fact in dispute in this case and summary judgment is appropriate.
The I.G. cites section 1128(a)(1) of the Act as the basis for Petitioner's mandatory exclusion. The statute provides:
Clearly the statute requires the Secretary to exclude from participation any individual or entity: (1) convicted of a criminal offense; (2) where the offense is related to the delivery of an item or service; and (3) the item or service is or was to be delivered pursuant to title XVIII of the Social Security Act, which is commonly known as the Medicare program, or under any state health care program. Petitioner does not dispute any of the facts alleged by the I.G. in the statement of facts section of the I.G. Brief and Petitioner does not object to any of the evidence the I.G. relies upon. P. Brief at 5. Thus, it is undisputed that on August 28, 2002, Petitioner pled guilty before the United States District Court for the Central District of California, to four counts of violating 42 U.S.C. � 1320a-7b(b), the anti-kickback provisions of the Act. As part of his plea agreement, Petitioner stipulated that from November 4, 1999 through June 1, 2000, he owned Midbay Health Care Medical Products (Midbay), which was located in North Hollywood, California. Midbay was a provider of DME that participated in Medicare and the California Medi-Cal program. Midbay billed Medicare and Medi-Cal for the costs of DME provided to program beneficiaries. In November 1999, Petitioner was introduced to undercover agents of the FBI poising as employees of WCC, an undercover operation of the FBI. Petitioner agreed to pay the undercover agents kickbacks for DME referrals. Petitioner paid the agents kickbacks totaling $1,600, between November 15, 1999 and June 1, 2000, for business referred to him by WCC during the same period. I.G. Ex. 5, at 2-3. Petitioner was convicted pursuant to his pleas and on December 9, 2002, he was sentenced to pay a fine of $2,000 and to serve a one-year term of probation for each of the four counts but the terms were to run concurrently. I.G. Ex. 4, at 1-2. Petitioner notes in his brief that he also does not dispute that for "Medi-Cal and Medicare eligible beneficiaries, Midbay would bill Medi-Cal and/or Medicare for the cost of DME provided to beneficiaries." P. Brief at 5, citing I.G. Ex. 1, at 3 � 13. Petitioner does not dispute that he was convicted within the meaning of section 1320a-7(i) of the Act. P. Brief at 4. Petitioner also does not dispute that he was convicted of an offense related to the delivery of an item or service under a federal health care program. Id. at 4-5. Petitioner also does not dispute that he actually paid kickbacks. Id. at 10. Petitioner argues, however, that the I.G. has not shown that Petitioner's conviction related to "Medicare or a State health care program." P. Brief at 6. The crux of Petitioner's argument is that an element of section 1128(a)(1) that the I.G. must prove by a preponderance of the evidence for that section to apply, is that the criminal offense of which Petitioner was convicted related to the delivery of an item or service under Medicare or a state health care program, commonly referred to as Medicaid, or in the case of California, Medi-Cal. Petitioner argues that his conviction was for violations of the anti-kickback provision of the Act for paying kickbacks in connection with a "federal health care program." Id. at 6-7. Petitioner argues that the I.G. has failed to make a prima facie showing because the I.G. has not shown that his conviction was related to delivery of an item or service under Medicare or Medicaid. Id. at 6-8. (1) If I found Petitioner's arguments meritorious, the result would not be a decision in Petitioner's favor. Petitioner argues a point of fact, i.e., whether his conviction was for an offense related to Medicare and Medicaid. It cannot be denied that this is a "material fact" as it is an element of section 1128(a)(1). Thus, if Petitioner's argument is found meritorious, it would be necessary to deny the I.G. motion for summary judgment and to proceed to a hearing where the I.G. and Petitioner could both present evidence in support of their respective positions. However, summary judgment will still lie if there is no "genuine" issue of material fact. The Departmental Appeals Board (the Board) has recognized the application of summary judgment principles similar to those which have risen around Federal Rule of Civil Procedure 56, in proceedings within the Board's and ALJ's jurisdiction under 42 C.F.R. Parts 498 and 1005. The Board's view of the procedure has been that when a motion for summary judgement is made, the movant has the burden of informing the decision-maker of the basis for its motion and to present evidence demonstrating the absence of any "genuine issue of material fact." The Board's interpretation is that the moving party must put forth evidence on each material element of the substantive offense, which evidence, on its face shows that the element has been met, the evidence must not be subject to conflicting interpretation, and the evidence must be viewed in a light most favorable to the non-moving party. Thelma Walley, DAB No. 1367 (1992), see also, Alden-Princeton Rehabilitation and Health Care Center, DAB No. 1978 (2005) (the right to oral hearing is not violated by summary judgment where there is no genuine issue of material fact, such that any proffered testimonial evidence goes only to facts which, even if proved, would not alter the legal result). The Board's application of summary judgment principles puts a heavy burden upon the movant to present evidence to show that there is no genuine issue of material fact in dispute. If the I.G. makes the required showing, only then is the burden upon the non-movant to show with some credible evidence that there is a genuine issue of fact for an evidentiary hearing. (2) In this case, the undisputed evidence the I.G. has presented shows that there is no genuine issue of material fact that Petitioner's delivery of items was pursuant to Medicare and Medicaid rather than some other federal program. Presented as evidence is the plea agreement Petitioner entered in the federal district court criminal proceedings and it includes, as paragraph 6, the facts Petitioner stipulated to in order to get the benefit of the plea agreement. I.G. Ex. 5. Petitioner stated in his brief that he does not contest any of the evidence offered by the I.G. P. Brief at 5. Furthermore, he is prohibited by regulation from disputing or collaterally attacking in this proceeding the substantive basis for his criminal conviction. 42 C.F.R. � 1001.2007(d). Thus, I conclude that Petitioner is bound by his stipulation that:
I.G. Ex. 5, at 4. The preceding sentence of the stipulated facts indicates that the time period referred to is the period of Petitioner's criminal conduct from November 15, 1999 through June 1, 2000. This sentence is unequivocal and, even if considered in the most favorable light to Petitioner, it clearly is an admission that Petitioner billed Medicare and/or Medi-Cal for the business referred to him by WCC for which he paid kickbacks. Petitioner does not address this specific stipulated fact in his brief. Petitioner has also provided no evidence that would cause me to interpret the stipulated fact differently. Further, Petitioner never specifically asserts, either through representations of his counsel or by affidavit or declaration, that the kickbacks he received were not related to Medicare or Medicaid. Petitioner only argues that the I.G. has failed to prove the relationship between the offenses of which he was convicted and the Medicare or Medicaid programs, and his argument flies in the face of the undisputed evidence presented by the I.G. that shows that Petitioner actually stipulated to the relationship. Thus, I conclude that the I.G. has presented undisputed evidence that Petitioner was convicted of criminal offenses; that the offenses were related to the delivery of an item or service; and that the items were to be delivered under the Medicare and/or Medicaid programs. Petitioner has presented no evidence to rebut the evidence of the I.G. or to show there is a genuine dispute as to a material fact. There is no genuine issue of material fact and no reasonable finder of fact could find for Petitioner given all the evidence. Summary judgment in favor of the I.G. is appropriate. There is a basis for Petitioner's exclusion pursuant to section 1128(a) of the Act.
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) if I determine Petitioner is subject to mandatory exclusion. P. Brief at 2. I have found there is a basis for Petitioner's exclusion pursuant to section 1128(a) and the minimum period of exclusion is thus five years. 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 March 20, 2005, 20 days after the February 28, 2005 I.G. notice of exclusion. |
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| JUDGE | |
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Keith W. Sickendick Administrative Law Judge |
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| FOOTNOTES | |
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1. Petitioner does not argue he cannot be excluded, but, rather, that he is not subject to mandatory exclusion. He admits that he is subject to the permissive exclusion provisions of section 1128(b) of the Act, and if those provisions are to be applied, his goal is that he should be excluded for less than five years, the minimum exclusion authorized when exclusion is mandatory under section 1128(a). 2. The Board's approach is consistent with that of the majority of courts. See 10A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure Civil, � 2727 (3d ed. 1998); 11 James William Moore, Moore's Federal Practice, � 56.11 (3d ed. 2005). | |