Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Mamdouh El-Attrache, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: April 10, 1991
Docket No. C-254
DECISION
Petitioner timely filed a request for a hearing before an
Administrative Law Judge (ALJ) to contest the April 19,
1990 notice of determination (Notice) issued by the
Inspector General (I.G.) of the United States Department
of Health and Human Services (DHHS). The Notice informed
Petitioner that he was excluded from participation in
the Medicare program and three federally-financed state
health care programs for a period of five years, pursuant
to section 1128 of the Social Security Act (Act). 1/
I have considered the parties' arguments, the documentary
evidence submitted, and the applicable federal law and
regulations. I conclude that there are no disputed
questions of material fact that would require an in-
person evidentiary hearing. I further conclude that the
exclusion imposed and directed by the I.G. in this case
is mandated by federal law. Therefore, I enter summary
disposition in favor of the I.G.
BACKGROUND
The I.G.'s Notice alleged that Petitioner had been
convicted in the Court of Common Pleas of Westmoreland
County, Pennsylvania of a criminal offense related to the
delivery of an item or service under the Pennsylvania
Medical Assistance Program. Petitioner was further
advised that section 1128 of the Act required a minimum
five-year exclusion for individuals convicted of a
program-related offense. The I.G. informed Petitioner
that he was excluded for the mandatory minimum five-year
period required by federal law.
Petitioner timely requested a hearing, and the case was
assigned to me for a hearing and decision. In his
request for a hearing, Petitioner alleged that he had
received ineffective assistance of counsel during the
criminal proceedings and, therefore, his guilty plea was
"involuntary." Petitioner stated that he would be
attacking his plea in a collateral state court
proceeding. He requested that I stay his exclusion
pending resolution of the issue of his "involuntary" plea
agreement. During the prehearing conference on July 26,
1990, I informed Petitioner that I would not stay his
exclusion pending his state appeal. I noted that if he
were successful in overturning his conviction, he would
be reinstated. I granted Petitioner the opportunity to
amend his request for a hearing and to add issues.
Petitioner filed an amended statement of contested issues
and findings. The I.G. moved for summary disposition of
the case and submitted documentary evidence in support of
the motion. Petitioner opposed the motion. The parties
briefed the issues and neither party requested oral
argument.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute.
Section 1128 of the Social Security Act is codified at
42 U.S.C. 1320a-7 (West U.S.C.A., 1990 Supp.). Section
1128(a)(1) of the Act provides for the mandatory
exclusion from Medicare and Medicaid of those individuals
or entities "convicted" of a criminal offense "related to
the delivery of an item or service" under the Medicare or
Medicaid programs. Section 1128(c)(3)(B) provides for a
five-year minimum period of exclusion for those excluded
under section 1128(a)(1).
II. The Federal Regulations.
The governing federal regulations are codified in
42 C.F.R. Parts 498, 1001, and 1002 (1989). Part 498
governs the procedural aspects of this exclusion case;
Parts 1001 and 1002 govern the substantive aspects.
Section 1001.123 requires the I.G. to issue an exclusion
notice to an individual whenever the I.G. has conclusive
information that such individual has been "convicted" of
a criminal offense "related to the delivery of an item or
service" under the Medicare or Medicaid programs.
ADMISSIONS
During the prehearing conferences on July 26, 1990 and
October 17, 1990, Petitioner admitted that: (1) he was
"convicted" of a criminal offense within the meaning of
section 1128(i) of the Act; and (2) the offense was
"related to the delivery of an item or service" under the
Medicaid program within the meaning of section 1128(a)(1)
of the Act.
ISSUES
The remaining issues in this case are:
1. Whether the five-year minimum mandatory
exclusion provisions of sections 1128(a)(1) and
1128(c)(3)(B) of the Act must apply in this case;
2. Whether the delegation of authority to the I.G.
by the Secretary to impose exclusions was lawful;
3. Whether the principle of double jeopardy bars
the I.G. from excluding Petitioner;
4. Whether, in the absence of new or additional
regulations, the I.G. has jurisdiction to impose
Petitioner's exclusion;
5. Whether this exclusion violates the due process
clause of the United States Constitution; and
6. Whether summary disposition is appropriate in
this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 2/
Having considered the entire record, the arguments and
the submissions of the parties, and being advised fully
herein, I make the following Findings of Fact and
Conclusions of Law:
1. On January 23, 1989, the Attorney General for the
Commonwealth of Pennsylvania filed an information in the
Court of Common Pleas of the County of Westmoreland
(State Court) charging Petitioner with 58 felony counts
of Medicaid fraud. I.G. Ex. E. 3/
2. On January 23, 1989, Petitioner pled guilty to 10
counts in the information. I.G. Ex. B.
3. Petitioner, by his guilty plea, admitted to
conspiring with individuals who were not licensed
physicians and having these unlicensed individuals
examine and write prescriptions for Medicaid patients.
Petitioner then submitted reimbursement invoices to
Medicaid, misrepresenting that these services had been
performed by a licensed physician. I.G. Ex. E.
4. By his guilty plea, Petitioner also admitted to
having received monthly kickbacks from a clinical
laboratory in exchange for his referral of patients to
the laboratory. I.G. Ex. E.
5. On May 23, 1989, at Petitioner's sentence hearing,
the State Court placed Petitioner on probation for three
years; ordered restitution of $36,000 to the Pennsylvania
Department of Public Welfare and $3,000 to the Office of
the Pennsylvania Attorney General to cover the costs of
his investigation; and imposed $8,000 in fines. I.G. Ex.
F.
6. Petitioner admitted that he was convicted of a
program-related criminal offense within the meaning of
section 1128 of the Act.
7. Petitioner was "convicted" of a criminal offense
within the meaning of section 1128(i) of the Act.
8. Petitioner was convicted of a criminal offense
"related to the delivery of an item or service" under the
Medicaid program within the meaning of section 1128(a)(1)
of the Act.
9. The I.G. properly excluded Petitioner from
participating in the Medicare and Medicaid programs for a
period of five years as required by the minimum mandatory
exclusion provisions of sections 1128(a)(1) and
1128(c)(3)(B) of the Act.
10. The Secretary of the Department of Health and Human
Services (the Secretary) properly delegated to the I.G.
the authority to determine, impose, and direct exclusions
pursuant to section 1128 of the Act. 48 Fed. Reg. 21662
(1983).
11. The I.G. has authority to impose and direct
Petitioner's exclusion even in the absence of new
regulations.
12. The principles espoused in United States v. Halper,
490 U.S. 435 (1989), concerning double jeopardy, do not
bar the I.G. from imposing and directing exclusions
against Petitioner from participation in the Medicare and
Medicaid programs.
13. This exclusion does not violate the due process
clause of the United States Constitution.
14. Since the material facts are undisputed in this
case, the only remaining issues are legal issues.
15. There are no material facts in dispute in this case,
there is no need for an in-person evidentiary hearing,
and the I.G. is entitled to summary disposition as a
matter of law. See Charles W. Wheeler and Joan Todd, DAB
App. 1123 (1989); Fed. R. Civ. P. 56.
DISCUSSION
I. A minimum mandatory five-year exclusion is required
in this case.
Petitioner admits, and I conclude, that he was
"convicted" of a criminal offense within the meaning of
section 1128(i) of the Act. FFCL 1-7. Petitioner also
admits, and I conclude, that he was convicted of a
criminal offense "related to the delivery of an item or
service" under the Medicaid program within the meaning of
section 1128(a)(1) of the Act. FFCL 1-8.
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act require
the I.G. to exclude individuals and entities from the
Medicare and Medicaid programs for a minimum period of
five years, when such individuals and entities have been
"convicted" of a criminal offense "related to the
delivery of an item or service" under the Medicare or
Medicaid programs. Congressional intent on this matter
is clear:
A minimum five-year exclusion is appropriate,
given the seriousness of the offense at issue.
. . . Moreover, a mandatory five-year
exclusion should provide a clear and strong
deterrent against the commission of criminal
acts.
S. Rep. No. 109, 100th Cong., 1st Sess. 2 (1987),
reprinted in 1987 U.S. Code Cong. & Admin. News, 682,
686.
Since Petitioner was "convicted" of a criminal offense
and it was "related to the delivery of an item or
service" under the Medicaid program, within the meaning
of sections 1128(a)(1) and 1128(i) of the Act, the I.G.
was required by section 1128(c)(3)(B) of the Act to
exclude Petitioner for a minimum period of five years and
an ALJ has no discretion to reduce the mandatory minimum
five-year period of exclusion. See Greene v. Sullivan,
731 F. Supp. 835 (E.D. Tenn. 1990); Charles W. Wheeler,
DAB Civ. Rem. C-61 (1989), aff'd, Charles W. Wheeler and
Joan K. Todd, DAB. App. 1123 (1990). See also Greene v.
Sullivan, 731 F. Supp. 838, 840 (E.D. Tenn. 1990).
II. It is well settled that the delegation of authority
to the I.G. by the Secretary to impose exclusions was
lawful and that the I.G.'s participation in the exclusion
process does not violate the Act.
Petitioner contends that the delegation of authority from
the Secretary to the I.G. was unlawful because the
delegated duty to impose exclusions is a "program
operating responsibility" which is prohibited from
transfer to the I.G. by 42 U.S.C. 3526(a). P. Br. 2, 4.
This issue was settled by the United States District
Court for the Eastern District of Tennessee in Greene,
731 F. Supp. at 837. The district court upheld the
lawfulness of the Secretary's delegation of exclusion
authority to the I.G., finding "nothing inappropriate in
the Secretary's delegation of the exclusion sanction
authority to this office" and that Greene's argument to
the contrary ". . . is totally without merit." Id. I
similarly found this argument to be without merit in
Mark M. Akagi, R.Ph., DAB Civ. Rem. C-91 (1989); Arthur
B. Stone, D.P.M., DAB Civ. Rem. C-52 (1989); and Charles
W. Wheeler, DAB Civ. Rem. C-61 (1989). Accordingly, I
find Petitioner's argument here to be without merit. 4/
Moreover, Congress, in amending and strengthening the
exclusion law, has itself approved the involvement of the
I.G. in the exclusion process, since it is the I.G. who
has performed this responsibility from the law's
inception. In fact, the legislative history of the 1987
amendments to the law expressly approves the Secretary's
delegation of the exclusion authority to the I.G.:
Under current practice, the Secretary has
delegated all existing suspension, exclusion,
and civil monetary penalty authorities to the
Department's Inspector General. The Committee
believes that this delegation of authority by
the Secretary is entirely consistent with the
statutory mandate of the HHS Inspector General
(42 U.S.C. section 3521 et seq.) and has
resulted in the efficient administration of
these authorities. The Committee expects the
Secretary both to continue this existing
practice and to delegate all new statutory
exclusion authorities created by this bill to
the Department's Inspector General.
S. Rep. No. 109, 100th Cong., 1st Sess. 14, reprinted in
1987 U.S. Code Cong. & Admin. News 682, 695. 5/
III. It is well settled that the I.G. is not precluded
from excluding Petitioner in this case by reason of the
double jeopardy clause of the Constitution.
Petitioner contends that his exclusion from the Medicare
and Medicaid programs for the mandatory five-year period
is a second punishment for a single offense in violation
of the double jeopardy clause of the Fifth Amendment to
the United States Constitution, citing United States v.
Halper, 490 U.S. 435 (1989). P. Br. 10-11; I.G. Ex. D.
The I.G. claims that Petitioner's exclusion does not
violate the double jeopardy clause of the Constitution.
I.G. Br. 10.
In Halper, the Supreme Court held that under some
circumstances, the imposition of civil penalties under
the False Claims Act, 31 U.S.C. 3729-3731, could
constitute double jeopardy in the narrow circumstances
where there existed a prior federal criminal conviction
for the false claims for which the civil penalty was
imposed and where there was not even a rough relationship
between the amount of the penalty and the cost to the
government resulting from the false claims. The Court
noted that the rule is one for "the rare case."
Petitioner's case involves a state conviction, whereas
Halper involved a federal conviction. Double jeopardy
does not apply to a subsequent federal prosecution based
on facts which led to a state conviction. Chapman v.
U.S. Dept. of Health & Human Services, 821 F.2d 523 (10th
Cir. 1987); Abbate v. United States, 359 U.S. 187 (1959).
Moreover, the primary goals of the exclusion law are not
to punish, but are remedial, such as protecting program
beneficiaries, protecting program integrity, and by
fostering public confidence. See Greene, 731 F. Supp. at
840; H.R. Rep. No. 158, 97th Cong., 1st Sess. Vol. III,
329, 344 (1981); S. Rep. No. 139, 97th Cong., 1st Sess.
461-62 (1981), 1981 U.S. Code Cong. & Admin. News 727-28;
Preamble to the Regulations (48 Fed. Reg. 38827 to 38836,
August 26, 1983). Accordingly, the I.G. is not barred
from excluding Petitioner by the principles of double
jeopardy.
IV. It is well settled that the I.G. has the authority
to impose and direct Petitioner's exclusion in the
absence of new or additional regulations.
Petitioner argues that his exclusion from the Medicare
and Medicaid programs is void because additional
rulemaking was required under both the Administrative
Procedure Act and the Medicare and Medicaid Patient and
Protection Act of 1987, before the exclusion could be
imposed and implemented. I.G. Ex. D. The I.G. argues
that no additional rulemaking was required before
Petitioner's exclusion could be imposed. I.G. Br. 11. I
agree with the I.G.
The DAB in the cases of Wheeler, DAB App. 1123 and
Greene, DAB App. 1078, cases brought under section
1128(a)(1), held that a mandatory exclusion may be
applied on the basis of the statute alone and on the
basis of the existing regulations that preceded these
1987 revisions. The DAB stated that the Secretary
could rely on existing regulations as long as they were
compatible with the revised statute, and provided for
the timing and notice of the exclusion in a manner fully
consistent with the revised statutory provisions. The
DAB stated that as long as the agency proceeds in
accordance with "ascertainable standards" and "provides a
statement showing its reasoning in applying the
standards," formal rulemaking was not required.
Moreover, the DAB held that Congress clearly authorized
the Secretary to apply the revised provisions prior to
promulgating new regulations when it authorized
exclusions based on convictions occurring on or after the
enactment of the revisions.
The DAB's interpretation was upheld in Greene, 731 F.
Supp. at 837, where the Court held:
The 1987 amendments simply imposed a five-year
minimum period of exclusion . . . These
provisions are self executing and do not
require the formation of additional regulations
prior to their application. Adequate notice
and hearing regulations were already in place
when Congress enacted the 1987 Amendments.
V. Petitioner's due process arguments have no merit.
Petitioner claims that the federal law which provides
that the same branch of government investigate and
determine exclusions and consider appeals of those
decisions is a violation of his rights and deprives him
of a liberty interest without due process of law. I.G.
Ex. D. The I.G. argues that this issue is not one that
the ALJ can decide. I.G. Br. 10-11. See footnote 4.
I have considered the constitutional issues raised in
this case by Petitioner and conclude that they are
without merit for the same reasons expressed by the
District Court in Greene, 731 F. Supp. at 840. There,
the District Court considered Greene's due process
arguments and found that they lacked merit, concluding
that there was not the "slightest bias in the
administrative proceedings." See also, Chua, DAB App.
1204 (1990).
VI. It is well settled that summary disposition is
appropriate in exclusion cases and that there is no need
for an evidentiary hearing in this case.
Summary disposition is appropriate in an exclusion case
where there are no disputed issues of material fact and
where the undisputed facts demonstrate that one party is
entitled to judgment as a matter of law. Leon Brown, DAB
App. 1208 (1990); Surabhan Ratanasen, M.D., DAB App. 1138
at 8 (1990). Petitioner admits that he was "convicted"
of a criminal offense within the meaning of section
1128(i) of the Act and that it was "related to the
delivery of an item or service" under the Medicaid
program, within the meaning of section 1128(a)(1) of the
Act. In addition, there is documentary evidence in
the record that supports a finding that Petitioner was
"convicted" of a program-related crime.
Petitioner contends that he has an unconditional
statutory right to an in-person hearing relating to this
exclusion. He argues that under the Administrative
Procedure Act at 5 U.S.C. 556(d), he is entitled to
present his case and conduct such hearing "as may be
required for a full and true disclosure of the facts."
P. Br. 6. While Petitioner is quite correct that there
must be a full disclosure of all relevant facts in all
exclusion cases, there are no genuine issues of material
fact which would require the submission of additional
evidence in this case. Therefore, there is no need for
an in-person evidentiary hearing.
I have concluded that, based on the undisputed material
facts contained in the record of this case, the I.G.
properly excluded Petitioner from the Medicare and
Medicaid programs pursuant to section 1128(a)(1) of the
Act and that the length of the exclusion is controlled by
section 1128(c)(3)(B), which mandates a minimum period of
exclusion for five years.
Accordingly, the I.G. is entitled to summary disposition
as a matter of law. See Wheeler, DAB App. 1123; Fed. R.
Civ. P. 56.
CONCLUSION
Based on the law and undisputed material facts in the
record of this case, I find that Petitioner was convicted
of a program-related criminal offense, find that summary
disposition is appropriate, conclude that the I.G.
properly excluded Petitioner from participating in the
Medicare and Medicaid programs pursuant to section
1128(a)(1) of the Act, and conclude that the minimum
period of exclusion for five years is required by section
(c)(3)(B) of the Act
IT IS SO ORDERED.
___________________________
Charles E. Stratton
Administrative Law Judge
* * * Footnotes * * *
1. The Medicaid program is one of three types
of federally-financed State health care programs from
which Petitioner is excluded. I use the term "Medicaid"
to represent all three of these programs which are
defined in section 1128(h) of the Act.
2. Some of my statements in the sections
preceding these formal findings and conclusions are also
findings of fact and conclusions of law. To the extent
that they are not repeated here, they were not in
controversy.
3. The citations to the record and to Board
cases in this Decision are designated as follows:
I.G.'s Brief I.G. Br. (page)
I.G.'s Exhibits I.G. Ex. (letter)
I.G.'s Reply Brief I.G. Rep. Br. (page)
Petitioner's Brief P. Br. (page)
Findings of Fact and FFCL (number)
Conclusions of Law
Departmental Appeals Board DAB Civ. Rem. (docket no./
ALJ decisions date)
Departmental Appeals Board DAB App. (decision no./date)
Appellate decisions
4. The I.G. argued in his brief that I lack
jurisdiction to decide this question, relying on Jack W.
Greene, DAB App. 1123 (1989), in which the Departmental
Appeals Board (DAB) upheld the ALJ's finding that he
lacked authority to consider the lawfulness of the
delegation. I do not need to resolve this jurisdictional
question because the delegation issue is well settled. I
note, however, that the issue of my jurisdiction to
decide collateral issues is not so clearly established.
For example, the DAB upheld my decision in Wheeler where
I held as I do here on this issue. They also upheld my
reasoning in Wheeler for declaring that it was not
necessary for the Secretary to promulgate new exclusion
regulations, a collateral issue. Moreover, the DAB in
Greene went on to explain how the ALJ should decide the
delegation issue if he did have the authority to decide
it. Furthermore, on appeal, the District Court in Greene
did not address the issue of the ALJ's authority.
Finally, and more recently, the DAB held in Betsy Chua,
M.D. et. al., DAB App. 1204 (1990), that while the ALJ
does not have authority to declare statutes or
regulations unconstitutional, the ALJ does have the
authority to interpret and apply them. They also held in
Chua, by implication, that I had the authority to make
conclusions on constitutional questions because they
upheld my due process and ex post facto conclusions.
5. Petitioner has requested a stay in this case
until DHHS acts on his request for materials such as
executive orders, memoranda, directives, releases,
program operating manuals and the like under the Freedom
of Information Act, relating to the delegation of
authority issue. P. Ex. 1. Since I have found and
concluded that the issue of the I.G.'s delegation has
clearly been decided in favor of the I.G. and that the
minimum mandatory exclusion provisions of sections
1128(a)(1) and 1128(c)(3)(B) apply in this case, I need
not stay this action.