SUBJECT:

Kennard C. Kobrin,

Petitioner,

The Inspector General.

DECISION

I sustain the Inspector General's (I.G.) determination to exclude Petitioner, Kennard C. Kobrin, from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. I find that the I.G. is authorized to exclude Petitioner under section 1128(a)(1) of the Social Security Act (Act) and that the statute mandates a minimum five-year exclusion.

I. Background

By letter dated September 30, 2003, the I.G. notified Petitioner of her decision to exclude him from program participation, pursuant to section 1128(a)(1) of the Act, because he was convicted of a criminal offense related to the delivery of an item or service under the Medicaid program. ⁽¹⁾ Petitioner requested review, and the matter was assigned to me for resolution. The parties agreed that the matter could be decided on the written record. See, Order and Schedule for Filing Briefs and Documentary Evidence (February 18, 2004).

Thereafter, the I.G. submitted her motion and brief in support of summary affirmance (I.G. Brief), accompanied by seven marked exhibits (I.G. Exs. 1 - 7). Petitioner filed a brief in opposition to the I.G.'s motion and in support of reversal of his exclusion as a Medicare provider (P. Brief) accompanied by 12 exhibits (P. Exs. 1 - 12). The I.G. submitted a reply to Petitioner's Brief (I.G. Reply). Petitioner submitted a sur-reply in response to the I.G.'s reply (P. Reply). In the absence of objection, I admit into evidence I.G. Exs. 1 - 7 and P. Exs. 1 - 12.

II. Issue

The sole issue before me is whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs. Because an exclusion under section 1128(a)(1) must be for a minimum period of five years, the reasonableness of the length of the exclusion is not an issue.

III. Discussion

I set forth my findings of fact and conclusions of law as separately numbered headings

1. Petitioner's conviction of the offense of Medical False Claims is an appropriate basis for his exclusion from Medicare, Medicaid, and all other federal health care programs.

Section 1128(a)(1) of the Act requires the Secretary of Health and Human Services to exclude from participation in any federal health care program, as defined in section 1128B(f) of the Act, any individual convicted of a criminal offense relating to the delivery of a health care item or service under Medicare or any State health care program. ⁽²⁾ The statute is unambiguous that this is not a discretionary provision - the exclusion is mandatory.

The critical facts of this case are not in dispute. On December 20, 2002, a Commonwealth of Massachusetts jury returned a guilty verdict against Petitioner on two counts of Medicaid False Claims, in violation of Massachusetts General Law 118E, � 40, clause 2. I.G. Exs. 5 and 6. On two counts (for two different patients), the jury found Petitioner guilty of the following:

actuated by a continuing criminal intent, being a person who had furnished services for which payment may be made under c. 118E of the General Laws of Massachusetts [Medicaid Act], did knowingly and wilfully make or cause to be made one or more false statements or representations of a material fact for the use in determining rights to payment for services under the said c. 118E, by referring, recommending and/or authorizing the provision of one or more psychological tests . . . which were not medically necessary.

I.G. Exs. 3 and 4.

Petitioner was sentenced by the Bristol County, Massachusetts Superior Court on May 30, 2003 to three years probation, 750 hours of community service, and various fines. I.G. Ex. 6.

Petitioner was convicted within the meaning of section 1128(i) of the Act because a jury found him guilty of two counts of Medicaid False Claims and a judgement of conviction was entered against him by a State court. This amounts to a conviction under 1128(i) of the Act regardless of whether there is an appeal pending. Petitioner's conviction relates to the delivery of an item or service under Medicaid. The filing of fraudulent Medicaid claims constitutes program-related misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996); see also Rosaly Saba Khalil, M.D., DAB CR353 (1995). Massachusetts General Law 118E has been the subject of prior Departmental Appeal Boards decisions and a violation of 118E has been found to be a program-related crime within the meaning of section 1128(a)(1) of the Act. Rosemary Oteri, DAB CR755 (2001); Mark Maher, DAB CR678 (2000); Kathleen M. Casey, DAB CR401 (1995). Petitioner, therefore, must be excluded.

2. Petitioner may not re-litigate his criminal conviction in this forum.

Petitioner claims that the two convictions against him concern two psychological testing referrals to a psychologist resulting in a psychological testing result for Patient D and Patient G. Petitioner argues that he did not conduct or certify the medical necessity of the psychological tests to Medicare or Medicaid and therefore he did not deliver the services. In addition, Petitioner argues that the psychological tests performed by the other psychologist were not unnecessary or inappropriate and points to testimony given during his trial as support for his argument. Petitioner's arguments amount to a collateral attack on his underlying conviction. Petitioner disagrees with the evidence that was presented at the State court proceeding and the verdict of the jury. However, the regulations explicitly preclude my review of the facts underlying his conviction.

When the exclusion is based on the existence of a criminal conviction . . . where the facts were adjudicated and a final decision was made, the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. � 1001.2007(d); Joann Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, R.Ph., DAB No. 1380, at 8 (1993) ("There is no reason to 'unnecessarily encumber the exclusion process' with efforts to reexamine the fairness of State convictions."); Ira Katz, Little Five Points Pharmacy, DAB CR1044 (2003). Petitioner "[s]imply cannot challenge the facts relating to his criminal conviction . . . ." See Jose Grau, DAB CR930 at 12 (2002).

3. A State court's jurisdiction, full faith and credit, collateral estoppel, and res judicata are issues that I cannot review.

Petitioner suggests that he should have the opportunity to conduct discovery into the facts that are the basis of his underlying conviction. In particular he wants to discover whether any request for reimbursement to Medicaid was ever made. Petitioner claims that a reimbursement claim was never made to Medicaid but only to Medicare. Therefore, Petitioner argues that the Massachusetts Court lacked subject matter jurisdiction, that his underlying conviction was void, and subject to collateral attack. Further, Petitioner urges that an earlier decision of the Massachusetts Board of Registration in Medicine, which fully cleared and exonerated him, should be given full faith and credit in this forum under the theories of collateral estoppel and res judicata.

These arguments are simply other veiled collateral attacks on Petitioner's conviction, which are improper and beyond the scope of the judicial review of this forum as discussed above. 42 C.F.R. � 1001.2007(d).

Petitioner's recourse must be to proceed in another forum to seek to reverse or vacate his conviction. A similar situation occurred in Mark D. Bornstein, D.P.M., DAB CR115 (1990). In Bornstein, the petitioner was excluded for five years pursuant to section 1128(a)(1) of the Act after pleading guilty to one count of filing a false claim with Medicare. Id. at 3. Bornstein appealed his exclusion and argued that his conviction was invalid because the crime to which he had pled guilty had been repealed by the legislature. Id. at 7. The Administrative Law Judge (ALJ) in Bornstein correctly did not address the issue of whether the underlying conviction was void. Instead, the ALJ in that case reasoned that it is the fact of the existence of a conviction that gives rise to the I.G.'s authority to exclude an individual, stating:

[t]he statute [the Act], its legislative history, and the regulations all require the conclusion that a conviction, once entered by a federal, state, or local court, is a proper basis for an exclusion unless or until that exclusion is reversed or vacated. . . . Thus, the I.G. correctly argues that Petitioner's remedy, if he believes his conviction to be unlawful, is to seek reversal of that conviction by the U.S. District Court or the U.S. Court of Appeals.

Id. at 11.

4. The exclusion for a period of five years is the mandatory minimum period as a matter of law.

An exclusion under section 1128(a)(1) of the Act must be for a minimum mandatory period of five years. As set forth in section 1128(c)(3)(B) of the Act:

Subject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be not less than five years . . . .

When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. � 1001.2007(a)(2).

IV. Conclusion

The I.G., therefore, properly excluded Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years.

Carolyn Cozad Hughes

Administrative Law Judge

1. The September 30, 2003 notification letter also informed Petitioner that his five-year exclusion was based on section 1128(a)(4) of the Act. By letter dated March 31, 2004, the I.G. modified Petitioner's exclusion to reflect that Petitioner was being excluded solely on the basis of section 1128(a)(1) of the Act. The notice of exclusion was amended because it was discovered that Petitioner's underlying conviction fell outside the applicable time period under section 1128(a)(4) of the Act.

2. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX).