SUBJECT:

Fereydoon Abir, M.D.,

Petitioner,

The Inspector General

By letter dated December 31, 1998, the Inspector General (I.G.), United States Department of Health and Human Services, notified Fereydoon Abir, M.D. (Petitioner), that he would be excluded for a period of 15 years from participation in Medicare, Medicaid, Maternal and Child Health Services Block Grant and Block Grants to States for Social Services programs.⁽¹⁾ The I.G. imposed this exclusion pursuant to section 1128(a)(1) of the Social Security Act (Act), based upon Petitioner's conviction in the Supreme Court of the State of New York, County of Kings, for 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 seven proposed exhibits (I.G. Ex. 1-7). Petitioner submitted a brief with 10 proposed exhibits. (P. Ex. 1-10).⁽²⁾ Petitioner did not object to my receiving into evidence the I.G.'s proposed exhibits, and I receive into evidence I.G. Ex. 1-7. The I.G. objected to the receipt of Petitioner's proposed exhibits 1 through 5 into evidence as the I.G. asserted that such exhibits did not relate to any mitigating factors but attempted to demonstrate Petitioner's good character. I accept them into evidence and accord them appropriate weight in view of the I.G.'s objections. I therefore accept P. Ex. 1-10 into evidence.

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.

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 XVII 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 not less than five years, unless specified aggravating or mitigating factors are present which form the basis for lengthening or shortening the period of exclusion. See 42 C.F.R. �� 1001.102(a), (b), and (c).

42 C.F.R. � 1001.102(b)⁽³⁾ provided 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 to a government program or to one or more entities of $1500 or more. (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 or any other Federal health care programs as a result of intentional 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."

Petitioner concedes that he was "convicted," as that term is used in the Act, of a criminal offense and that his offense relates to the delivery of a health care item or service.⁽⁴⁾ He challenges the 15-year exclusion and maintains that a five-year exclusion is proper. In particular, Petitioner asserts that the I.G. cannot rely on the fact that the State of New York excluded him from participation in the Medicaid program. He maintains that such fact is not an aggravating factor under 42 C.F.R. � 1001.102(b)(8) of the regulations which became effective October 2, 1998.

Petitioner also cites factors in his case which he evidently maintains warrants mitigation of the exclusion period. He states that at the time he engaged in the criminal misconduct for which he was convicted, he was addicted to Hydrocodone, an ingredient in a cough syrup he was taking. He also notes that he has performed volunteer services at a hospital where he works.

1. During the period of time relevant to this case, Petitioner was licensed to practice medicine in the State of New York and was enrolled as a provider in the New York Medicaid Program.

2. On June 26, 1997, in the Supreme Court of the State of New York, County of Kings, a Grand Jury Indictment (Indictment), Indictment Number 6930/97, was issued charging Petitioner with one count of grand larceny, one count of petit larceny, eleven counts of first degree "offering a false instrument for filing," and ten counts of first degree "falsifying business records" which alleged, among other things, that Petitioner filed false and fraudulent claims with the New York Medicaid program for reimbursement. I.G. Ex. 3.

3. Specifically, count one of the Indictment charged Petitioner with grand larceny and alleged that Petitioner, from April 10, 1990 to February 28, 1994, caused to be submitted to the fiscal agents for the New York Medicaid program numerous claims which falsely represented that he had performed certain complex surgical repairs, to wit: the suturing of lacerations and removal of Keloid scars upon Medicaid recipients when in truth as Petitioner knew these repairs had not been performed. I.G. Ex. 3.

4. On December 24, 1997, Petitioner pled guilty to count one of the Indictment, attempted grand larceny in the third degree, a Class D felony, in violation of New York Penal Law 155.35, and on that date the New York State court accepted Petitioner's guilty plea. I.G. Ex.4.

5. As a result of his conviction, Petitioner was placed on probation for five months and was ordered to pay $30,000 in restitution to the New York Attorney General's office. I.G. Ex.4.

6. On March 30, 1998, the State of New York Department of Health notified Petitioner that he was being excluded from participation in the New York Medicaid program as a result of his December 24, 1997 criminal conviction.

7. On December 31, 1998, 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.

8. 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.

9. 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 minimum period of five years, in the absence of aggravating or mitigating factors that would support an exclusion of more or less than five years.

10. Petitioner's criminal conviction constitutes a conviction within the scope of sections 1128(i)(1) and (3) of the Act.

11. Petitioner's conviction for attempted grand larceny 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.

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

13. Petitioner did not prove the presence of any mitigating factors.

14. The I.G. established the existence of aggravating factors under 42 C.F.R. �� 1001.102(b)(1), (2), and (6).

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

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

Petitioner does not challenge that he is subject to exclusion under section 1128(a)(1) of the Act and I so find. Petitioner pled guilty to attempted grand larceny, which constitutes a conviction under section 1128(i)(3) of the Act. Accordingly, the Court entered judgment in Petitioner's case, which constitutes a conviction under section 1128(i)(1) of the Act.

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 program. The record reflects that Petitioner was found guilty of attempted grand larceny in that he filed or caused to be filed fraudulent claims for medical services with Medicaid. The filing of fraudulent Medicaid 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 mitigating factors. It is Petitioner's burden to prove the existence of mitigating factors. James H. Holmes, M.D., DAB CR270 (1993). Petitioner has not established any of the mitigating factors listed at 42 C.F.R. � 1001.102(c). He claims that his involvement in the scheme was precipitated by his addiction to Hydrocodone, an ingredient in a cough syrup he was taking, but as there was no court finding on this issue such assertion in not within the scope of 42 C.F.R. � 1001.102(c)(2). He also notes that he has performed volunteer services at a hospital where he works. Such claim is not within the scope of the regulations. As Petitioner has the burden of showing 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 presented in this case. 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 two aggravating factors. The two aggravating factors consist of the following:

1. 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). Count One of the Indictment reflected that the acts occurred from April 1990 through February 1994. I.G. Ex. 3. The facts stated in the Indictment to which Petitioner pled guilty may be considered in this exclusion proceeding. See Norman C. Barber, D.D.S., DAB CR123 (1991); and

2. The acts resulting in Petitioner's conviction,or similar acts, caused financial loss of $1,500 or more to a government program or to one or more other entities. 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, M.D., DAB CR478 (1997); see also Steven Alonso Henry, M.D., CR638 (2000). As established by the $30,000 restitution order, Petitioner's criminal acts resulted in a substantial loss to the New York Medicaid program.

As an additional aggravating factor, the I.G. cited the fact that Petitioner on March 3, 1998, was excluded from participation in the Medicaid program by the New York State Department of Health. Petitioner notes that the I.G. improperly applied the version of the regulations which was amended effective as of October 1998 and challenges the validity of this factor under the revised 1998 regulations. I disagree with Petitioner on this issue. The New York Department of Health exclusion determination was based solely upon the fact that Petitioner was convicted of a crime relating to the furnishing or billing for medical care under the New York Medicaid program, the basis of the I.G.'s exclusion action. The aggravating factors set forth in the applicable regulations at 42 C.F.R. � 1001.102(b)(6) (1998) continue to state that an aggravating factor includes whether the individual "has a documented history of criminal, civil or administrative wrong doing," substantially the same wording as under the 1997 regulations. See 42 C.F.R. � 1001.102(b)(5) (1997). It has been held that the term "prior" refers to any administrative sanction that is imposed prior to the date of exclusion, even if that action emanates from the same conduct or conviction which is the basis for the I.G.'s exclusion determination. Dionisio Lazaro, M.D., DAB CR603 (1999); John M. Thomas, Jr., M.D. and Texoma Orthopedic Associates, DAB CR281 (1993). On the basis of such authority I find that Petitioner's exclusion by the New York authorities is an aggravating factor.⁽⁵⁾

Considering Petitioner's 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 a 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 the appellate panel 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 actions in defrauding Medicaid on multiple occasions over a period of years which resulted in a substantial financial loss to that program. His fraud was recurrent and deliberate, involving falsification of patient records. Petitioner contends that his misconduct did not rise to the level, in terms of monetary loss, demonstrated in other cases which resulted in 15-year exclusions and that he was not sentenced to a period of incarceration. I note however that the losses in Petitioner's case were many times the regulatory minimum and that, while he did not receive a prison sentence, the New York State Medicaid authorities believed it necessary to take action against him. I therefore find that a 15-year exclusion is reasonable.

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

Joseph K. Riotto

Administrative Law Judge

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

2. In his request for a hearing, Petitoner through counsel, submitted a lengthy statement and 20exhibits. In the proceedings before me, Petitioner retained new counsel who in response to the briefing schedule has not renewed many of the claims presented by Petitioner's first representative and who has submitted other documentation on Petitioner's behalf. In the absence of Petitioner's specific request that I consider the documentation submitted prior to the briefing schedule, I am not considering that documentation except for those items resubmitted in response to the briefing schedule.

3. Petitioner challenges the I.G.'s evident use of the 1997 regulations which were apparently citedin the exclusion notice. I find that Petitioner is correct in this matter. As the exclusion letter was dated December 31, 1998 and the regulations were revised effective October 2, 1998, these 1998 regulations are the proper ones to be used in evaluating Petitioner's case. Narendra M. Patel, M.D., DAB No. 1736 (2000). It is well-established that the law in effect on the date of the proposed action governs. Id.; see, e.g., Landgraf v. USI , 511 U.S. 244 (1994); see also Dionisio Lazaro, M.D., DAB CR603 (1999).

4. Petitioner through prior counsel submitted an extensive brief in his request for a hearing. In response to the briefing schedule, Petitioner's present counsel submitted a brief. In the absence of a specific request by Petitioner that I consider the arguments made by prior counsel in the request for a hearing, I shall not consider such arguments and shall adjudicate only those claims submitted in response to the briefing schedule. I note in this regard that the I.G. has requested an opportunity to respond if Petitioner's counsel desires to reassert these claims, but Petitioner's present counsel has not indicated his intent to do so.

5. Petitioner also contends that the subsequent New York exclusion is not within the scope of 42 C.F.R. � 1001.201(b)(8) (1998). The DAB in Narendra M. Patel, M.D., DAB CR631 (1999); aff'd, DAB No. 1736 (2000), held that a license revocation proceeding based on the same facts which gave rise to a criminal conviction, the basis of the I.G.'s exclusion action, is within the scope of 42 C.F.R. � 1001.201(b)(9). The I.G. did not rely on this factor in Petitioner's case however and I do not consider it.