SUBJECT:

Andre Benoney Celestin, M.D.

Petitioner,

The Inspector General.

DECISION

Petitioner, Andre Benony Celestin, M.D., 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 October 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 the minimum period ⁽¹⁾ of 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 September 30, 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 for the Southern District of New York of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. See Act, section 1128(a)(1); 42 U.S.C. � 1320a-7(a)(1); and 42 C.F.R. � 1001.101(a).

Petitioner timely requested a hearing by letter dated October 5, 2005. The case was assigned to me for hearing and decision on October 18, 2005. On January 19, 2006, I convened a prehearing telephonic conference, the substance of which is memorialized in my Order dated January 20, 2006.

The I.G. filed a motion for summary affirmance which I treat as a motion for summary judgment ⁽²⁾ and a supporting brief on February 21, 2006 (I.G. Brief), with I.G. Exhibits (I.G. Exs.) 1 through 4. Petitioner filed his response to the I.G. motion on March 23, 2006. Petitioner filed no exhibits. The I.G. filed a reply brief on April 14, 2006, accompanied by the same four exhibits that the I.G. submitted on February 21, 2006. No objection has been made to the admissibility of any of the proposed exhibits and I.G. Exs. 1 through 4 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. On June 15, 2004, Petitioner was convicted pursuant to his guilty plea of one count of solicitation and receipt of Medicare kickbacks in violation of 42 U.S.C. 1320a-7b(b)(1)(A) (section 1128B(b)(1)(A) of the Act) in the United States District Court for the Southern District of New York. I.G. Ex. 4.

2. Petitioner was sentenced to six months home confinement; three years probation; a $100 assessment; and a $6,000 fine. Id.

3. The I.G. notified Petitioner by letter dated September 30, 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.

4. Petitioner timely requested a hearing by letter dated October 5, 2005.

B. Conclusions of Law

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

2. Summary judgment is appropriate.

3. Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program within the meaning of section 1128(a)(1) of the Act.

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

5. Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of exclusion under section 1128(a) is five years and that period is presumptively reasonable.

C. Issues

The Secretary of the Department 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. Law Applicable

Petitioner's right to a hearing by an administrative law judge (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)(1) 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 Medicare or a 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).

E. Analysis

1. Summary judgment is appropriate in this case.

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 a 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).

There are no genuine issues of material fact in dispute in this case or the issues must be resolved against Petitioner as a matter of law. Petitioner indicates that there is no dispute that he was convicted within the meaning of the Act as alleged by the I.G. P. Brief at 1. Petitioner also does not dispute that the offense of which he was convicted is related to the delivery of an item or service under Medicare or a state health care program. Accordingly, there are no issues of material fact in dispute related to the issue of whether there is a basis for exclusion and summary judgment on that issue is appropriate. Petitioner does argue, however, that the period of exclusion is too long. This issue must be resolved against Petitioner as a matter of law, as the Act provides that the minimum period of exclusion is five years. Thus, summary judgment on this issue is also appropriate.

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

The I.G. cites section 1128(a)(1) of the Act as the basis for Petitioner's mandatory exclusion. The statute provides:

(a) MANDATORY EXCLUSION. - The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1) Conviction of program-related crimes. - Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

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 under Medicare or a state health care program.

Petitioner does not dispute that he was convicted of a criminal offense within the meaning of section 1128(i) of the Act. Petitioner was convicted of soliciting or receiving kickbacks, which is a federal felonious criminal offense under section 1128B(b)(1)(A) of the Act (42 U.S.C. 1320a-7b(b)(1)(A)). Thus, there can be no question that the conviction relates to the delivery of an item or service under Medicare or a state health care program.

Accordingly, I conclude that there is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) of the Act and such exclusion is mandatory.

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

Petitioner has not denied that the minimum period of an exclusion pursuant to section 1128(a)(1) is five years as mandated by section 1128(c)(3)(B), if I determine Petitioner is subject to mandatory exclusion. Rather, Petitioner argues that Petitioner's offense would not constitute a crime under New York law. P. Brief at 1-2. Whether or not that assertion is correct, Petitioner was convicted of a felony under federal law in the federal court. Petitioner's federal felony conviction serves as a basis for exclusion under section 1128(a)(1) of the Act. Petitioner also argues that he has an "unblemished" record over years of medical and surgical practice; that he is accomplished with multiple degrees; he is a family man; and excluding him from practice will be a loss to the community. P. Brief at 2-3. Whether or not these points are correct, the statute mandates that the minimum period of exclusion is five years and the Secretary, the I.G., and I are required to follow the statute. ⁽⁴⁾

I have found there is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) 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 October 20, 2005, 20 days after the September 30, 2005, I.G. notice of exclusion.

Keith W. Sickendick

Administrative Law Judge

1. Pursuant to 42 C.F.R. � 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires. Reinstatement is not automatic upon completion of the period of exclusion.

2. The regulations recognize no action for a disposition on the merits other than decision after oral hearing, decision on pleadings after waiver of oral hearing, or summary judgment. ⁽³⁾

3. Counsel for Petitioner affirmed that the motion was, in fact, correctly characterized as a motion for summary judgment during a telephonic prehearing conference, the results of which are memorialized in my Order of April 21, 2005. ��

4. There are limited provisions for waiver of the exclusion where the basis for the exclusion is section 1128(a)(1), (a)(3), or (a)(4), but such a waiver is not a matter within my jurisdiction. Act, section 1128(c)(3)(B).