Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Olufemi Okunoren, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: August 23, 1991
Docket No. C-340
DECISION
On November 30, 1990, the Inspector General (I.G.)
notified Petitioner that he was being excluded from
participation in the Medicare and State health care
programs. The I.G. told Petitioner that he was being
excluded as a result of his exclusion or suspension by
the State of Mississippi Division of Medicaid
(Mississippi Medicaid). The I.G. stated that the
exclusion that he was imposing and directing against
Petitioner was authorized by section 1128(b)(5) of the
Social Security Act (Act). The I.G. excluded Petitioner
until Mississippi Medicaid reinstated him.
Petitioner timely requested a hearing, and the case was
assigned to me for a hearing and decision. Both the I.G.
and Petitioner made motions for summary disposition. On
May 16, 1991, I denied both parties' motions for summary
disposition, ruling that there were disputed issues of
material fact. On June 4, 1991, I held an in-person
evidentiary hearing in this case in Jackson, Mississippi.
During the hearing the I.G. proposed to modify
Petitioner's exclusion to allow Petitioner to reapply for
reinstatement to the Medicare and Medicaid programs on
May 1, 1993, the date when Petitioner would be eligible
to apply to Mississippi Medicaid for reinstatement.
Based on the evidence introduced at the hearing, and on
applicable law, I conclude that an exclusion which would
allow Petitioner to reapply for reinstatement to the
Medicare and Medicaid programs on May 1, 1993, is not
extreme or excessive. Therefore, I am entering a
decision in this case which modifies the I.G.'s exclusion
of Petitioner to a term running until May 1, 1993.
ISSUES
The issues in this case are whether:
1. the I.G. had authority to exclude Petitione
pursuant to section 1128(b)(5) of the Act;
2. the exclusion imposed and directed against
Petitioner by the I.G. is so extreme or excessive
as to be unreasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a physician who practiced medicine as
a general practitioner in Mississippi from 1977 until
December 1990. Tr. 110 - 111; I.G. Ex. 1/2, 7.
2. Petitioner was a Medicaid provider in Mississippi
from 1978 until May 1, 1990. Tr. 111, 115; I.G. Ex. 4.
3. In a letter to Petitioner of April 10, 1990,
Mississippi Medicaid suspended Petitioner as a Medicaid
provider for three years, effective May 1, 1990. I.G.
Ex. 4.
4. Mississippi Medicaid suspended Petitioner pursuant
to a recommendation from the Mississippi Foundation for
Medical Care, Inc. (MFMC) that Petitioner be suspended
for three years and be required to make monetary
restitution for unnecessary lab tests he performed. I.G.
Ex. 3.
5. MFMC is the Peer Review Organization (PRO) for the
State of Mississippi. MFMC has a contract with the State
of Mississippi to review services rendered by Medicaid
providers in Mississippi, and to make recommendations
concerning provider sanctions. Tr. 47; I.G. Ex. 20/1 -
2, 13.
6. A MFMC review of Petitioner had found that
Petitioner had: 1) poorly documented his reasons for
ordering laboratory work; 2) ordered unnecessary
laboratory work; 3) performed inadequate and very poor
quality EKG's; 4) performed incomplete urine tests; 5)
maintained inadequate records from which to ascertain his
treatment of his patients; and 6) demonstrated a risk to
patients by giving "inappropriate diagnosis" of patients'
illnesses, thereby placing his patients at risk. I.G.
Ex. 1/9 - 10.
7. Mississippi Medicaid is a State health care program
within the meaning of sections 1128(h) and 1128(b)(5)(B)
of the Act. I.G. Ex. 4/1, 3 - 4, 6/1, 8/1.
8. Petitioner was suspended from participation in a
State health care program for reasons bearing on his
professional performance. Findings 4 - 6.
9. Pursuant to section 1128(b)(5)(B) of the Act, the
Secretary of the Department of Health and Human Services
(Secretary) has authority to impose and direct an
exclusion against Petitioner from participating in
Medicare and Medicaid.
10. The Secretary delegated to the I.G. the duty to
impose and direct exclusions pursuant to section 1128 of
the Act. 48 Fed. Reg. 21662 (May 13, 1983).
11. On November 30, 1990, the I.G. excluded Petitioner
from participation in the Medicare and Medicaid programs.
I.G. Ex. 8.
12. A remedial objective of section 1128(b)(5)(B) is to
protect beneficiaries and program funds by excluding
individuals or entities who have been found unfit to
participate in a federally-funded State health care
program. S. Rep. No. 109, 100th Cong. 1st Sess.,
reprinted in 1987 U. S. Code Cong. & Admin. News 682,
689.
13. On October 8, 1982, Petitioner was informed that
Mississippi Medicaid had investigated and found that:
1) Petitioner had charged Medicaid for services which did
not have the results documented in the medical records;
and 2) Petitioner charged Medicaid for services
recipients denied receiving. I.G. Ex. 10/1; See 42
C.F.R. 1001.125(b)(7).
14. In settlement of the above-mentioned investigation,
Petitioner agreed to: 1) make restitution to Mississippi
Medicaid for monies received; 2) one year's probation; 3)
maintenance of medical records on all Medicaid eligible
patients; and 4) make the medical records available to
Mississippi Medicaid representatives. I.G. Ex. 11; See
42 C.F.R. 1001.125(b)(7).
15. On November 20, 1986, Petitioner was informed by
Mississippi Medicaid that a review of the medical
necessity of services rendered and procedures performed
by Mississippi Medicaid providers had found that
Petitioner's pattern of practice with regard to
laboratory procedures fell significantly outside of his
peer group. P. Ex. 1.
16. In 1986, Mississippi Medicaid medical consultants,
using a random sample from Petitioner's paid claims, had
reviewed Petitioner's laboratory procedures in
conjunction with each patient's diagnosis. Their review
indicated that, in many instances, the necessity of the
specific laboratory procedures was questionable for the
specific diagnosis. P. Ex. 1.
17. Following this review, Mississippi Medicaid informed
Petitioner that:
To reiterate our policy, it is not
the intention of the Medicaid Program to
pay for services performed on a routine
basis, but rather, to pay for those procedures
which are specifically, medically indicated.
P. Ex. 1.
18. There is a pattern, established by specific
treatment records in evidence, of Petitioner routinely
ordering certain tests of some patients, specifically
hemoglobins, hematocrits, urinalyses, and blood sugars,
virtually every time those patients visited him. Tr. 56 -
58, 63 - 64, 77; P. Ex. 21, 22, 24, 26, 28, 32, 33, 34,
35, 36, 37, 40, 41, 42, 45, 46, 48.
19. There is nothing in the patient records that are in
evidence in this case to show that Petitioner actually
evaluated the tests that he ordered or that he
systematically recorded the results of these tests in any
way meaningful to the treatment of those patients.
Tr. 138 - 141; P. Ex. 19 - 48.
20. There is no documented medical necessity for most of
the laboratory tests ordered by Petitioner in these
treatment records. Tr. 63; P. Ex. 19 - 48; I.G. Ex. 2/8 -
42.
21. By claiming Medicaid reimbursement for those tests,
Petitioner sought reimbursement for unauthorized and
unnecessary items or services. P. Ex. 19 - 48; Findings
18 - 20.
22. Petitioner knew or should have known that the
Mississippi Medicaid program did not authorize
reimbursement for the tests ordered by Petitioner.
Finding 17.
23. Petitioner should have known that the tests
systematically ordered by him were not medically
justified. Finding 20.
24. Petitioner's explanation for ordering the tests in
question -- that they were a form of preventive medicine
for his impoverished black patients -- is not credible.
Tr. 78, 96, 102, 113 - 115, 125 - 128, 132, 134; I.G. Ex.
7, 14, 19/1; P. Ex. 2.
25. Over a lengthy period of time, Petitioner has
systematically ordered unnecessary laboratory tests of
Mississippi Medicaid recipients and persisted in claiming
reimbursement for those tests in violation of Mississippi
Medicaid payment criteria. See 42 C.F.R. 1001.125(b)(1);
Findings 4, 6, 13, 16, 17, 18, 20.
26. Petitioner's persistent ordering of unnecessary
laboratory tests of Mississippi Medicaid recipients and
his presentation of reimbursement claims for such
unnecessary tests constitutes a deliberate attempt by
Petitioner to obtain program funds to which he was not
entitled. Such efforts, to the extent they may have
succeeded, were a waste of scarce program funds. Tr. 79
- 80.
27. Petitioner's assertion that his systematic ordering
of laboratory tests of Mississippi Medicaid recipients
and claiming reimbursement from Mississippi Medicaid for
such tests was a legitimate practice of preventive
medicine is not a defense to his acts, because Petitioner
knew or should have known that Mississippi Medicaid had
determined that such tests were not reimbursable. See 42
C.F.R. 1001.125(b)(4); Findings 17, 22.
28. Petitioner's pattern of ordering tests which were
not medically justified and claiming reimbursement from
Mississippi Medicaid for those tests when he knew or
should have known that they were not reimbursable items
or services establishes that Petitioner is not a
trustworthy provider of care. Findings 17 - 22.
29. Petitioner's lack of trustworthiness is further
established by his refusal to admit that his conduct was
improper. Tr. 141 - 142.
30. Given Petitioner's lack of trustworthiness, a
substantial exclusion from participating in Medicare and
Medicaid is reasonable.
31. An exclusion of Petitioner from Medicare and
Medicaid until May 1, 1993 is neither extreme or
excessive. Findings 1-30; See 42 C.F.R. 1001.125(b).
ANALYSIS
In this case, Petitioner contests both the basis for his
exclusion and the reasonableness of the length of his
exclusion. I find that the I.G. is authorized to exclude
Petitioner and that the exclusion proposed by the I.G.
during the hearing in this case on June 4, 1991, is
reasonable.
1. The I.G. had authority to exclude Petitioner
pursuant to section 1128(b)(5)(B).
Section 1128(b)(5)(B) of the Act permits the I.G. to
exclude from the Medicare and Medicaid programs any
individual or entity which has been suspended or excluded
from participation, or otherwise sanctioned, under:
a State health care program, for reasons bearing
upon the individual's or entity's professional
competence, professional performance, or financial
integrity.
In a section 1128(b)(5)(B) proceeding, the Act only
requires that two preconditions be met to establish the
I.G.'s authority to exclude a party: 1) the party must
have been suspended or excluded from a State health care
program; and 2) the reasons for the party's suspension or
exclusion must bear on that party's professional
competence, professional performance, or financial
integrity.
The I.G.'s authority to impose and direct exclusions
pursuant to section 1128(b)(5) is derivative, emanating
from a State's exclusion or suspension proceeding. A
petitioner may challenge the I.G.'s authority to impose
and direct an exclusion under this section by asserting
that the prerequisite sanction has not been imposed.
However, a petitioner may not challenge the I.G.'s
authority to impose and direct an exclusion by asserting
that such sanction was unfairly imposed, or by raising
other collateral arguments to attack the sanction
process. See Charles W. Wheeler and Joan K. Todd, DAB
App. 1123 (1990); Andy E. Bailey, C.T., DAB App. 1131
(1990); Leonard P. Harman, DAB Civ. Rem. C-162 (1990).
There is no question in this case that Mississippi
Medicaid, a State health care program, suspended
Petitioner. See Findings 4, 7. The only question
remaining is whether the reasons for the suspension
concerned Petitioner's professional competence,
professional performance, or financial integrity. The
evidence in this case establishes that the reasons for
Petitioner's suspension from the State program concerned
his professional performance.
The facts of this case are that a State sanction
proceeding was initiated against Petitioner in August
1989. Petitioner was charged with violating his duty
under law to provide services to Medicaid recipients
which met professionally recognized standards of care.
The initial notice which was issued to Petitioner in that
State sanction proceeding charged that Petitioner had
violated his obligations under section 1156 of the Social
Security Act. That notice asserted that Petitioner had:
1) provided services that were not medically necessary;
2) provided services which did not meet professionally
recognized standards of care; and 3) provided services
not supported by the appropriate evidence of medical
necessity and quality of the services in a form and
fashion as may be required. These assertions were in
turn based on charges that Petitioner: poorly documented
his laboratory work, ordered unnecessary laboratory
tests, performed inadequate and incomplete testing,
provided incomplete documentation regarding his treatment
of Medicaid recipients, and inappropriately diagnosed his
patients' medical conditions. These State charges
ultimately led to Petitioner's suspension from the
Mississippi Medicaid program. The I.G. based his
exclusion determination on that suspension.
Section 1128(b)(5)(B) does not define the term
"professional performance." However, the plain meaning
of the Act encompasses performance of professional duties
consistent with professionally recognized standards of
care and the requirements of law. See Leonard P. Harman,
D.O., DAB Civ. Rem. C-162 at 7 (1990). The evidence in
this case establishes that the State sanction against
Petitioner was based on the State agency's finding that
Petitioner had failed to carry out his professional
duties to Medicaid recipients in a manner consonant with
legal requirements and consistent with professionally
recognized standards or care. Therefore, the
prerequisites exist to establish authority for the I.G.
to impose and direct an exclusion against Petitioner.
Petitioner raises several arguments concerning the
fairness of the State proceeding which led to his
suspension from the Mississippi Medicaid program, and
ultimately, the I.G.'s exclusion determination. These
include Petitioner's assertion that he was denied due
process in the State proceeding and that he was not
granted a hearing at the State agency level. As I note
above, the I.G.'s authority to impose and direct an
exclusion under section 1128(b)(5) derives from the
sanction which is imposed against a party under a State
health care program. A party may not challenge that
authority by arguing that the underlying State action was
procedurally defective or unfair.
Petitioner also argues that the I.G. is required by law
to make an independent determination concerning
Petitioner's professional competence or performance
before imposing and directing an exclusion pursuant to
section 1128(b)(5). He contends that the I.G. may not
rely on State agency findings as authority for his
exclusion determination.
There is no question that there must exist evidence of a
petitioner's lack of trustworthiness to support the
duration of an exclusion imposed under part (b) of
section 1128 of the Act. See Part 2 of this Analysis,
infra. However, the authority to impose and direct an
exclusion under section 1128(b)(5) derives from action
taken by a State agency. If that action has been taken,
and it is for the reasons stated in section 1128(b)(5),
then the I.G. has the authority to impose and direct an
exclusion. His authority to impose and direct an
exclusion does not depend on his making an independent
determination that a party has engaged in conduct which
would serve as a basis for an exclusion or suspension
imposed by a State agency.
Petitioner also asserts that the Secretary failed to
comply with certain statutory duties imposed on him by
section 1156 of the Act, before imposing and directing an
exclusion against Petitioner. According to Petitioner,
the Secretary was without authority to impose and direct
an exclusion against Petitioner in light of his failure
to discharge these statutory duties.
There is no requirement under section 1128(b)(5) that the
Secretary, or his delegate, the I.G., comply with other
unrelated sections of the Act before imposing and
directing an exclusion against a party. The authority to
impose and direct an exclusion under section 1128(b)(5)
derives exclusively from the actions taken by a State
agency. If the requisite actions have been taken, then
the authority to impose and direct an exclusion exists.
I make no findings in this decision concerning what
duties the Secretary or the I.G. might have been required
to fulfill or discharge had they proceeded against
Petitioner pursuant to section 1156 of the Act. Section
1156, which empowers the Secretary to impose and direct
an exclusion against a party based on the recommendations
of a peer review organization, was not the statutory
basis for the exclusion which the I.G. imposed and
directed in this case.
2. An exclusion of Petitioner until May 1, 1993, is not
extreme or excessive.
Section 1128 is a civil remedies statute. The remedial
purpose of section 1128 is to enable the Secretary to
protect federally-funded health care programs and their
beneficiaries and recipients from individuals and
entities who have proven by their misconduct that they
are untrustworthy. Exclusions are intended to protect
against future misconduct by providers. Manocchio v.
Sullivan, No. 90-8114, slip op. 1 (S.D. Fla., July 12,
1991).
Federally-funded health care programs are no more
obligated to deal with dishonest or untrustworthy
providers than any purchaser of goods or services would
be obligated to deal with a dishonest or untrustworthy
supplier. The exclusion remedy allows the Secretary to
suspend his contractual relationship with those providers
of items or services who are dishonest or untrustworthy.
The remedy enables the Secretary to assure that
federally-funded health care programs will not continue
to be harmed by dishonest or untrustworthy providers of
items or services. The exclusion remedy is closely
analogous to the civil remedy of termination or
suspension of a contract to forestall future damages from
a continuing breach of that contract.
Exclusion may have the ancillary benefit of deterring
providers of items or services from engaging in the same
or similar misconduct as that engaged in by excluded
providers. However, the primary purpose of an exclusion
is the remedial purpose of protecting the trust funds and
beneficiaries and recipients of those funds. Deterrence
cannot be a primary purpose for imposing an exclusion.
Where deterrence becomes the primary purpose, section
1128 no longer accomplishes the civil remedies objectives
intended by Congress. Punishment, rather than remedy,
becomes the end.
[A] civil sanction that cannot fairly be said
solely to serve a remedial purpose, but rather
can be explained only as also serving either
retributive or deterrent purposes, is
punishment, as we have come to understand the
term.
United States v. Halper, 490 U.S. 435, 448 (1989).
Therefore, in determining the reasonableness of an
exclusion, the primary consideration must be the degree
to which the exclusion serves the law's remedial
objective of protecting program recipients and
beneficiaries from untrustworthy providers. An exclusion
is not excessive if it does reasonably serve these
objectives.
The hearing in an exclusion case is, by law, de novo.
Act, section 205(b). Evidence which is relevant to the
reasonableness of the length of an exclusion will be
admitted in a hearing on an exclusion, whether or not
that evidence was available to the I.G. at the time the
I.G. made his exclusion determination. Evidence which
relates to a petitioner's trustworthiness or the remedial
objectives of the exclusion law is admissible at an
exclusion hearing, even if that evidence is of conduct
other than that which establishes statutory authority to
exclude a petitioner.
The purpose of the hearing is not to determine how
accurately the I.G. applied the law to the facts before
him, but whether, based on all relevant evidence, the
exclusion comports with legislative intent. Because of
the de novo nature of the hearing, my duty is to
objectively determine the reasonableness of the exclusion
by considering what the I.G. determined to impose in
light of the statutory purpose and the evidence which the
parties offer and I admit. The I.G.'s thought processes
in arriving at his exclusion determination are not
relevant to my assessment of the reasonableness of the
exclusion.
Furthermore, my purpose in hearing and deciding the issue
of whether an exclusion is reasonable is to decide
whether the determination was extreme or excessive. 48
Fed. Reg. 3744 (Jan. 27, 1983). Should I determine that
an exclusion is extreme or excessive, I have authority to
modify the exclusion, based on the law and the evidence.
Social Security Act, section 205(b).
The Secretary has adopted regulations to be applied in
exclusion cases. The regulations specifically apply to
exclusion cases for "program-related" offenses
(convictions for criminal offenses relating to Medicare
or Medicaid). The regulations express the Secretary's
policy for evaluating cases where the I.G. has discretion
in determining the length of an exclusion. The
regulations require the I.G. to consider factors related
to the seriousness and program impact of the offense and
to balance those factors against any factors that may
exist demonstrating trustworthiness. 42 C.F.R.
1001.125(b)(1) - (7). In evaluating the reasonableness
of an exclusion, I consider as guidelines the regulatory
factors contained in 42 C.F.R. 1001.125(b).
In this case, Petitioner argues that excluding him is
unreasonable because: 1) his laboratory testing was done
as part of his preventive medicine practice; 2) there are
no professionally recognized criteria for determining
when laboratory tests are medically necessary in any
given case; 3) Mississippi's black, low-income population
has a high incidence of hypertension and diabetes, the
leading cause of serious kidney disease; 4) early
detection and treatment would prevent kidney disease and
is cost effective; 5) the I.G.'s own witness, Dr. Hatten,
agreed that laboratory tests such as those administered
by Petitioner are proper screening devices for the early
detection of illnesses which could lead to serious
illnesses if not detected and treated early; and 6) no
evidence of harm to patients' health and safety was
offered as regards Petitioner's use of these routine
diagnostic tests.
I find that Petitioner is a manifestly untrustworthy
provider. The evidence in this case establishes that
Petitioner systematically ordered laboratory tests of
Medicaid recipients under circumstances where there was
no documentation supporting any need for such tests.
Petitioner ordered these tests in circumstances where
there was no evidence that his patients suffered from
conditions whose diagnosis and treatment would benefit
from the laboratory testing which Petitioner ordered.
Frequently, the complaints manifested by Petitioner's
patients were totally unrelated to the tests which
Petitioner ordered. In some cases, Petitioner persisted
in ordering repetitive laboratory testing of patients
where initial test results did not reveal the presence of
medical problems. Furthermore, Petitioner persisted in
claiming reimbursement for unnecessary laboratory tests
from Mississippi Medicaid after Mississippi Medicaid
explicitly told Petitioner that his pattern of ordering
tests was not medically justified.
The I.G. offered credible evidence through the testimony
of Dr. Hatten, a board-certified internist, that the
tests ordered by Petitioner were not medically necessary
to diagnose and treat the conditions for which patients
sought treatment from Petitioner. Tr. 63. Dr. Hatten
also credibly testified that such tests were not
necessary for the purpose claimed as justification by
Petitioner, routine screening for the presence of hidden
diseases. Tr. 78. I conclude that, while some testing
may be justified to screen Medicaid recipients for
conditions such as diabetes or hypertension, the tests
ordered by Petitioner of his patients showed no
meaningful relationship to the end of legitimate
preventive testing.
As Dr. Hatten noted in his testimony, meaningful
screening would be performed at regular intervals, with
testing performed about once a year adequate to uncover
disease. Tr. 96. Presumably, screening would bear some
relationship to the medical signs and symptoms
demonstrated by patients. However, in this case
Petitioner ordered that his patients be tested on every
visit, regardless of the frequency of such visits, and
regardless of the medical signs and symptoms which the
patients manifested. Tr. 112 - 114.
Petitioner insisted at the hearing that all his tests
were medically necessary for the medical care of his
patients. He stated:
I didn't do anything wrong. I'm not into ripping
anybody off, no. My practice was perfect. I did
not get involved in anything that can be -- that may
appear to anybody that I'm financially greedy or
anything like that, that may affect my financial
integrity.
Tr. 142.
I do not find Petitioner to be a credible witness. His
own treatment records contradict his testimony. These
records belie Petitioner's assertion that he set up
procedures to routinely test his patients, whom he states
were ignorant of their health, for hidden illnesses.
(Tr. 112 - 113). The medical records in evidence do not
show that patients saw Petitioner for regularly scheduled
routine testing. To the contrary, the medical records
demonstrate that Petitioner was visited sporadically by
his patients who saw him for treatment of specific
complaints such as trauma or episodic illnesses.
Petitioner routinely ordered laboratory tests of a
patient when that patient came in for treatment of a
specific illness or injury. P. Ex. 19 - 48. I can
discern no pattern of routine preventive testing in
Petitioner's treatment records.
While the medical records in evidence establish that
Petitioner routinely ordered many laboratory tests of
Medicaid recipients, they do not demonstrate that
Petitioner engaged in any meaningful interpretation of
the test results and in follow-up treatment of patients
in cases where treatment was indicated. Legitimate
preventive screening demands that someone interpret test
results. There is no evidence in these records that
Petitioner ever meaningfully interpreted the results of
the "preventive" laboratory tests he ordered. In fact,
in some cases where the laboratory work came back as
abnormal, Petitioner does not appear to have pursued the
cause of the abnormality. P. Ex. 31, 34, 39, 42, 46, 47;
I.G. Ex. 2/17, 22, 23, 30, 34, 35, 38, 39, 39, 40.
In a letter dated November 29, 1989 to MFMC, Petitioner
stated that financially he would be better off declining
Medicaid patients, but that would be contrary to his
ethic of providing care for the needy. I.G. Ex. 14/1.
However, on August 22, 1989 Petitioner had written MFMC
to tell them that 85 percent of his patients were on
Medicaid, an apparently significant percentage of his
income. I.G. Ex. 19/1; Tr. 111. Petitioner's
protestations to the contrary, Petitioner depended on
Mississippi Medicaid reimbursement as a major source of
remuneration. I conclude from Petitioner's pattern of
ordering unnecessary tests and claiming reimbursement
from Mississippi Medicaid for those tests that Petitioner
was interested in maximizing his remuneration, regardless
of the absence of medical necessity for the tests that he
ordered.
Further, the evidence establishes that Petitioner
persisted in claiming reimbursement from Mississippi
Medicaid for unnecessary tests notwithstanding the fact
that Mississippi Medicaid explicitly advised him that
such tests were not reimbursable. As early as November
20, 1986, Mississippi Medicaid told Petitioner that the
tests he was ordering and for which he was claiming
reimbursement were neither necessary nor reimbursable.
Petitioner's actions are thus egregious in two ways.
First, Petitioner ordered unnecessary laboratory tests of
Medicaid recipients, and second, Petitioner persisted in
claiming reimbursement for such tests notwithstanding the
fact that Mississippi Medicaid told him that the tests
were unnecessary and not reimbursable.
The fact that Petitioner persisted in ordering and
claiming reimbursement from Mississippi Medicaid for
unnecessary laboratory tests over a lengthy period of
time despite being told by Medicaid that his actions were
improper is strong evidence that Petitioner is not a
trustworthy provider of care. See 42 C.F.R.
1001.125(b)(1). That evidence is reinforced by
Petitioner's refusal to acknowledge in his statements to
Mississippi Medicaid and in his testimony at the hearing
which I conducted that he had done anything that was
improper. See 42 C.F.R. 1001.125(b)(6). Notwithstanding
strong evidence to the contrary, Petitioner asserted that
his practice in ordering and claiming reimbursement for
laboratory tests was "perfect." Tr. 142. Petitioner's
refusal to concede even the possibility that he had
engaged in improper practices proves not only his failure
to accept responsibility for his acts, but strongly
suggests a propensity to commit additional similar
misconduct in the future.
My conclusion that Petitioner is not a trustworthy
provider of care is in some respects reinforced by
evidence that Petitioner has a history of untrustworthy
behavior as regards the Medicaid program. See 42 C.F.R.
1001.125(b)(7). In 1982, Petitioner settled a complaint
by Mississippi Medicaid concerning allegations that he
had charged Medicaid for services which were not properly
documented and for services Medicaid recipients denied
receiving. His settlement included both payment of
restitution and a term of probation. Finding 14.
Petitioner's pattern of behavior is longstanding, and I
have no indication that Petitioner would not again
attempt in some way to bill Medicaid for services to
which he was not entitled or subject patients to
unnecessary testing in the future. His denial of any
mistake on his part and his continued insistence that
MFMC and Mississippi Medicaid are wrong persuades me that
Petitioner is a continuing threat to the programs. It is
precisely because Petitioner is capable of contravening
the law when he finds the law to be a hindrance, and
because he does not accept the wrongfulness of his
conduct, that I find Petitioner to be untrustworthy. See
Thomas Andrew Hunter, DAB Civ. Rem. C-337 (1991).
I conclude that an exclusion until May 1, 1993, is not
extreme or excessive, in light of Petitioner's lack of
trustworthiness. Petitioner manifests a longstanding
propensity to engage in conduct which could jeopardize
the integrity of the Medicare and Medicaid programs. I
have no assurance that Petitioner will not repeat his
wrongful conduct if afforded the opportunity to do so.
CONCLUSION
Based on the law and the evidence, I conclude that the
exclusion proposed by the I.G. at the June 4, 1991
hearing in this case, that Petitioner be excluded until
May 1, 1993, is not extreme or excessive. Therefore, I
modify the exclusion originally imposed and directed by
the I.G. to an exclusion from participating from Medicare
and Medicaid effective until May 1, 1993.
__________________________
Steven T. Kessel
Administrative Law Judge