SUBJECT:

Steven Alonzo Henry, M.D.,

Petitioner,

The Inspector General

By letter dated May 28, 1998, the Inspector General (I.G.), United States Department of Health and Human Services, notified Steven Alonzo Henry, M.D. (Petitioner), that he would be excluded for a period of 15 years from participation in Medicare, Medicaid, and all federal health care programs.⁽¹⁾ The I.G. imposed this exclusion pursuant to section 1128(a)(1) of the Social Security Act (Act), based on Petitioner's conviction in the Superior Court of DeKalb County, State of Georgia, of a criminal offense related to the delivery of an item or service under the Medicaid program.

Petitioner filed a request for review of the I.G.'s action. The I.G. moved for summary disposition. Because I have determined that there are no material and relevant factual issues in dispute (the only matter to be decided is the legal significance of the undisputed facts), I have decided the case on the basis of the parties' written submissions in lieu of an in-person hearing. The I.G. submitted a brief accompanied by eight proposed exhibits (I.G. Exs. 1-8). Petitioner submitted a response and four proposed exhibits (P. Exs. 1-4). The I.G. submitted a reply brief. Petitioner did not object to my receiving into evidence the I.G.'s proposed exhibits, and I receive into evidence I.G. Exs. 1-8.⁽²⁾ The I.G. did not object to my receiving Petitioner's proposed exhibits into evidence and I receive into evidence P. Exs. 1-4.

I affirm the I.G.'s determination to exclude Petitioner from participating in Medicare and other federally funded health care programs, including Medicaid, for a period of 15 years.

I. Applicable Law

Under section 1128(a)(1) of the Act, the Secretary may exclude from participation in the Medicare and Medicaid programs 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. Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(1) of the Act shall be for a period of five years, unless specified aggravating or mitigating factors are present which form the basis for lengthening or shortening the period of exclusion. See also 42 C.F.R. � 1001.102(a) and (b).

42 C.F.R. � 1001.102(b)(2) provides that the following factors may be considered to be aggravating and a basis for lengthening the period of exclusion: "(1) [t]he acts resulting in the conviction, or similar acts, resulted in financial loss of $1500 or more to a government program or to one or more other entities. (The entire amount of financial loss to such programs or entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made); (2) [t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; (3) [t]he acts that resulted in the conviction, or similar acts, had a significant adverse physical, mental or financial impact on one or more program beneficiaries or other individuals; (4) [i]n convictions involving patient abuse or neglect, the action that resulted in the conviction was premeditated, was part of a continuing pattern or behavior, or consisted of non-consensual sex acts; (5) [t]he sentence imposed by the court included incarceration; (6) [w]hether the individual or entity has a documented history of criminal, civil or administrative wrongdoing; (7) [t]he individual or entity has at any time been overpaid a total of $1500 or more by Medicare, Medicaid and all other Federal health care programs, or other third-party payers, as a result of improper billings; or (8) [w]hether the individual or entity was convicted of other offenses besides those which formed the basis for the exclusion, or has been the subject of any other adverse action by any Federal, State or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for the exclusion."

42 C.F.R. � 1001.102(c) provides that only the following factors may be considered as mitigating and a basis for reducing the period of exclusion: "(1) [t]he individual or entity was convicted of 3 or fewer misdemeanor offenses, and the entire amount of financial loss to Medicare and the State health care programs due to the acts that resulted in the conviction is less than $1500; (2) [t]he record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional, or physical condition before or during the commission of the offense that reduced the individual's culpability; (3) [t]he individual's or entity's cooperation with Federal or State officials resulted in --(i) [o]thers being convicted or excluded from Medicare, Medicaid, or all other Federal health care programs, (ii) [a]dditional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or (iii) [t]he imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter."

II. Petitioner's Contentions

Petitioner asserts that he was not "convicted" as that term is used in the Act of a criminal offense. He maintains that he pled guilty under the Georgia First Offender Act and that such procedure is not a conviction within the scope of section 1128(i) of the Act.

Petitioner also challenges the fact of his conviction, asserting that he is not guilty of the criminal misconduct mentioned in Count 1 of the Indictment. He asserts that misbilling occurred due to an innocent clerical error without his knowledge.

Petitioner also contends that the length of his exclusion is not reasonable. He asserts that the I.G. has misconstrued facts relating to aggravating circumstances in his case. He asserts that there was no loss as services were provided to patients, although admittedly Medicaid may not have been liable to pay for these services. He also maintains that as he is making restitution there is no loss to Medicaid. Petitioner also challenges that his involvement was of the length cited by the I.G. Petitioner asserts that the payments obtained from the Georgia Department of Medical Assistance were not for the period from October 1993 through March 1995 as claimed by the I.G., but only occurred during 1994.

Petitioner also cites a factor in his case which he maintains warrants mitigation of the exclusion period. He contends that he cooperated with the authorities who investigated the criminal matter for which he was convicted. He asserts that this cooperation involved the investigation and prosecution of a psychologist employed at Petitioner's medical office and that he was subpoenaed to testify in this person's criminal trial. In support of these claims, he has submitted an affidavit from the attorney who represented him in the criminal matter and a copy of the subpoena.

III. Findings of Fact and Conclusions of Law

1. During the period of time relevant to this case, Petitioner was licensed to practice medicine in the State of Georgia. I.G. Ex. 8.

2. During the period of time relevant to this case, Petitioner conducted a private practice called Roosevelt Medical Center (RMC) in College Park, Georgia. I.G. Ex. 7.

3. On January 12, 1998, an Indictment was filed in the Superior Court of DeKalb County, Georgia charging Petitioner with, among other offenses, one count of Medicaid Fraud, a felony violation. See I.G. Ex. 6.

4. According to the Indictment, commencing on or about January 18, 1994 and continuing until on or about March 22, 1995, Petitioner and RMC obtained payments from the Georgia Department of Medical Assistance (GDMA) by filing false claims for services which were not provided.

5. In particular, the Indictment alleges that Petitioner submitted false claims alleging that Marilyn Lineberger, a licensed psychologist and Medicaid provider, provided approximately 969 Medicaid recipient services at RMC between October 14, 1993 and January 17, 1994, when in fact such person did not begin working for RMC until January 19, 1994; and that in the following eight months Petitioner, aided and abetted by Lineberger, caused to be submitted false billings to GDMA misrepresenting that Lineberger was providing individual counseling and group therapy to Medicaid recipients at RMC when, in fact, Lineberger was not providing these services.
I.G. Ex. 6.

6. On March 19, 1999, Petitioner entered an "Alford" plea to Count I of the Indictment, Medicaid Fraud. I.G. Ex. 2.

7. As a result of his conviction, Petitioner was ordered to pay $350,000 in restitution, $55,000 in fines, and sentenced to 10 years' probation which might be terminated upon full restitution and payment of the fines imposed at sentencing. I.G. Ex. 2.

8. On May 28, 1999, Petitioner was notified by the I.G. that he was being excluded from participation in the Medicare and Medicaid programs for a 15-year period pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the Act.

9. Under section 1128(a)(1) of the Act, the I.G. is authorized to exclude any individual or entity that has been convicted of a criminal offense related to the delivery of a health care item or service under Medicare or Medicaid.

10. Where the I.G. determines to exclude an individual pursuant to section 1128(a)(1) of the Act, the term of exclusion will be for a period of five years, in the absence of aggravating or mitigating factors that would support an exclusion of more or less than five years.

11. Petitioner's criminal conviction constitutes a conviction within the scope of sections 1128(i)(3) and (4) of the Act.

12. Petitioner's conviction for Medicaid Fraud is related to the delivery of a health care item or service under the Medicare/Medicaid programs within the meaning of section 1128(a)(1) of the Act.

13. The I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act.

14. The Petitioner did not prove the presence of any mitigating factors.

15. The aggravating factors established by the I.G. prove Petitioner to be untrustworthy.

16. A 15-year exclusion of Petitioner is reasonable and appropriate.

IV. Discussion

Petitioner challenges that he is subject to exclusion under section 1128(a)(1) of the Act because he asserts that he has not been "convicted" as that term is used in section 1128(i) of the Act. I disagree. It is well-established that a conviction pursuant to an Alford Plea is within the scope of section 1128(i)(3) of the Act. Mark Zweig, DAB CR563 (1999); Magdiz Z. Fahmy, DAB CR176 (1992); Russell E. Bailey, DAB CR128 (1991); Raymond R. Veloso, DAB CR124 (1991). Similarly, section 1128(i)(4) states that an adjudication under a first offender statute is a conviction for purposes of section 1128(a)(1) and it has so been held. Mark Zweig, supra.

Next, it is required under section 1128(a)(1) of the Act that the crime at issue be related to the delivery of a health care item or service under the Medicare/Medicaid programs. The record reflects that Petitioner, by being found guilty of Medicaid Fraud, was found to have filed or caused to be filed fraudulent claims for medical services with Medicaid. The filing of fraudulent claims has been held to constitute clear program-related misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996).

Petitioner has argued in his brief that his 15-year exclusion should be reduced due to the presence of a mitigating factor. In his favor, he maintains that he fully cooperated with the government in the investigation of the fraudulent scheme. It is Petitioner's burden to prove the existence of mitigating factors. James H. Holmes, DAB CR270 (1993). Petitioner has not established any of the mitigating factors listed at 42 C.F.R. � 1001.102(c). His claim that he fully cooperated with the Government in its investigation of the scheme is a relevant factor. Petitioner, however, has not demonstrated the further requirements stated in 42 C.F.R. � 1001.102(c)(3)(i), (ii), or (iii) that his cooperation led to the conviction or investigation of others or the imposition of a monetary penalty against others. In particular, the record does not establish that Petitioner's cooperation led to the conviction or exclusion of others, including Marilyn Lineberger. The mere fact of cooperation does not automatically reduce the period of exclusion. In Howard Schreibstein, D.P.M., DAB CR517 (1998), the cooperation offered by the petitioner amounted to a reduction of the period of exclusion from ten years to five years because it was deemed to be extensive and highly valuable cooperation to prosecuting authorities which resulted in guilty pleas or convictions of other individuals. The conduct given consideration consisted of cooperating prior to the entry of his guilty plea, participating in numerous debriefing sessions, wearing a body wire on many occasions to elicit incriminating information, continuing cooperation for a period of five years and the characterization by the prosecuting attorney that his cooperation was outstanding.

Petitioner's evidence of cooperation does not rise to a level which warrants a reduction of the exclusion period. The sole evidence he has produced is an abbreviated and unsupported affidavit from his own counsel and a subpoena for him in the criminal matter involving Marilyn Lineberger. He has submitted nothing from the prosecuting attorneys. Even accepting such evidence, it shows only that he produced documents as ordered under subpoena, accepted service of process as a potential witness against Marilyn Lineberger, and talked to State prosecutors about others in the scheme. From such abbreviated evidence it cannot be concluded that Petitioner's cooperation resulted in others being excluded or convicted. It is not evident that he ever testified against others or that the information he provided was significant information used to obtain the conviction or exclusion of others. As Petitioner has the burden concerning mitigating factors, I find that he has not met such burden and conclude that Petitioner has not proved the existence of any mitigating factors.

In determining whether the length of an exclusion is reasonable, it is the responsibility of the administrative law judge to consider and evaluate all of the relevant evidence brought to bear in this case. The regulation at 42 C.F.R. � 1001.102(b) sets forth the aggravating factors which may be considered in determining the length of an exclusion. I find that the I.G. proved the presence of three aggravating factors. The three aggravating factors consist of the following:

• The acts resulting in Petitioner's conviction, or similar acts, caused financial loss of $1,500 or more to a government program or one or more other entities. 42 C.F.R. � 1001.102(b)(1). Petitioner's fraud caused very substantial losses to be incurred by Medicaid. A fair estimate of the quantum of damages caused by Petitioner may be found in the amount of restitution that he was sentenced to pay. Gilbert Ross, DAB CR478 (1997). The record reflects that Petitioner was ordered to pay restitution in the amount of $350,000 to Medicaid. Petitioner disputes the amount of the losses, but the Judgment reflects the restitution owed to Medicaid. The fact that Petitioner may ultimately repay Medicaid the restitution he owes does not obviate this factor as one I must consider in my analysis.
  
  
• The acts that resulted in Petitioner's conviction, or similar acts, were committed by Petitioner over a period of one year or more. 42 C.F.R. � 1001.102(b)(2). The Indictment reflects that the acts occurred from January 18, 1994 until March 22, 1995 and from October 14, 1993 until January 17, 1994. See Indictment, I.G. Ex. 6. Petitioner challenges such time frame, but the facts stated in the Indictment to which Petitioner entered an Alford plea may be considered in this exclusion proceeding. See Norman C. Barber, DAB CR123 (1991). Moreover, Petitioner cannot challenge the facts relating to his criminal conviction in this proceeding. See Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter Edmondson, DAB No. 1330 (1992).



• The individual or entity has at any time been overpaid a total of $1,500 or more by Medicare, Medicaid, and all other federal health care programs, or other third-party payers. 42 C.F.R. � 1001.102(b)(7). The record reflects a Medicaid loss of $350,000. Although this factor was not cited in the notice of exclusion, the I.G. cited it in the appellate brief and, under the briefing schedule, Petitioner was accorded an opportunity to respond. On such facts, I consider this factor in my analysis.

Considering Petitioner's lack of evidence of mitigation and the I.G.'s evidence of aggravating factors, I find that the aggravating factors in Petitioner's case make the imposition of the 15-year exclusion reasonable. I note that in evaluating these factors, it is not the mere presence of a greater number of aggravating factors which forms the basis for my decision here. As an appellate panel of the Departmental Appeals Board has previously held in Barry D. Garfinkel, M.D., DAB No. 1572 (1996), it is the quality of the circumstances, whether aggravating or mitigating, which is to be dispositive in analyzing evidence of these factors. Garfinkel, at 31.

In this case, the aggravating factors established by the I.G. prove Petitioner to be an untrustworthy individual. Petitioner's lack of trustworthiness is established by his involvement of at least 15 months in a scheme to defraud Medicaid. His fraud was persistent and deliberate, not random or impulsive. The extent to which Petitioner persisted in defrauding Medicaid is established by the large losses he caused the Medicaid program to incur. I therefore find that the 15-year exclusion is reasonable and appropriate.

Petitioner also challenges the criminal conviction which led to the exclusion in his case. He asserts that he is innocent of the misconduct and that his actions involved only innocent errors in billing by clerical personnel in his office. It is the fact of the conviction which causes the exclusion. The law does not permit me to look behind the conviction. Thus, Petitioner's questions regarding the validity of the criminal judgment against him are irrelevant in these proceedings and I am not permitted to consider the validity of such judgment in these proceedings. See Paul R. Scollo, D.P.M., supra.

V. Conclusion

I conclude that the I.G. was authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act. I find that the 15-year exclusion is reasonable and I sustain it.

Joseph K. Riotto

Administrative Law Judge

1. In this decision, I use the term "Medicaid" to refer to these health care programs.

2. Petitioner objected to my consideration of a November 2, 1999 letter from the State Prosecuting Attorney to I.G.'s counsel which was attached to the I.G.'s reply brief. I, therefore, have not considered this document and it is not received into evidence. It is, however, retained in the record of this matter.