Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Tarvinder Singh, D.D.S., |
DATE: September 8, 2000 |
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The
Inspector General
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Docket No.C-00-342
Decision No. CR697 |
DECISION | |
By letter dated January 31, 2000, the Inspector General
(I.G.), United States Department of Health and Human Services, notified
Tarvinder Singh, D.D.S., (Petitioner), that he would be excluded for a
period of 10 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 on Petitioner's conviction in the Superior Court of the State
of California 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 four proposed exhibits (I.G. Ex. 1-4) and a reply brief. Petitioner
submitted a brief with eight proposed exhibits. (P. Ex. 1-8). Petitioner
did not object to my receiving into evidence the I.G.'s proposed exhibits,
and I receive into evidence I.G. exhibits 1-4. The I.G. did not object
to my receiving Petitioner's proposed exhibits into
evidence. I therefore accept Petitioner's exhibits 1-8 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 ten years.
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 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 of not
less than five years. See also 42 C.F.R. � 1001.102(a). 42 C.F.R. � 1001.102(b) provides that the following factors
may be considered to be aggravating and a basis for lengthening the minimum
period of 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:
PETITIONER'S CONTENTIONS 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. He challenges the statutory
basis of the 10-year exclusion. He asserts that his offense is a misdemeanor
conviction and that he is properly excluded under the permissive exclusion
of 42 U.S.C.� 1320a-7(b) rather than the authority used by the I.G., 42
U.S.C. � 1320a-7(a). Under this statute, he maintains that a three-year
exclusion is proper. Petitioner also contends that the I.G. improperly based
the exclusion period on an incorrect reading of the facts in his case.
He maintains that the acts resulting in his conviction occurred within
a one-year period, not a period in excess of one-year as the I.G. noted.
He also asserts that the I.G. found that the financial loss due to his
criminal conviction was $35,784 when in fact he was ordered to pay only
$12,000 in restitution. Petitioner also cites factors in his case which he maintains
warrants mitigation of the exclusion period. He cites the absence in his
case of the other aggravating factors specified in the regulations. In
particular he states that his criminal acts had no adverse physical or
mental impact on a program beneficiary, that he has no prior administrative
or criminal sanction record, that he was not sentenced to a period of
incarceration, and that he promptly paid his fine, cooperated with authorities
in the investigation of his case, and accepted responsibility by pleading
guilty.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. During the period of time relevant to this case, Petitioner
was licensed to practice dentistry in the State of California and was
enrolled as a provider in the California Medicaid Program. I.G. Ex. 2. 2. On January 25, 1999, in the Sacramento Superior Court
of the State of California, a grand jury indictment, Indictment Number
99f00572, was issued charging Petitioner with one count of violation of
California Penal Code section 550(a)(7) in that he wilfully, unlawfully,
and knowingly presented and caused to be presented between March 1, 1997
and July 16, 1998 a false and fraudulent claim for payment of money for
dental care benefits; and with one count of grand theft in violation of
California Penal Code section 487(a) based on the same facts. I.G. Ex.
3. 3. Specifically, the investigation which led to the criminal
indictment revealed that Petitioner on multiple occasions between March
1, 1997 and July 16, 1998 billed Denti-Cal for dental procedures which
in fact were not performed. I.G. Ex. 2. 4. On April 7, 1999, Petitioner pled guilty to count two
of the Indictment, a felony, in violation of California Penal Code section
487 and on that date the California court accepted Petitioner's guilty
plea. I.G. Ex. 4. 5. As a result of his conviction, Petitioner was sentenced
to serve 120 days in the county jail, suspended; was placed on probation
for three years; was ordered to pay $12,000 in restitution to the Health
Care Deposit Fund and $35,784 to Denti-Cal; was ordered to withdraw from
any and all Medi-Cal, Denti-Cal, government-sponsored Delta-Dental programs
and Medicaid programs within 120 days of entry of the plea; and was ordered
not to derive by any means directly or indirectly remuneration or any
form of compensation from any Medi-Cal, Denti-Cal, government-sponsored
Delta-Dental programs. I.G. Ex. 4. 6. On January 31, 2000, Petitioner was notified by the
I.G. that he was being excluded from participation in the Medicare and
Medicaid programs for a 10-year period pursuant to sections 1128(a)(1)
and 1128(c)(3)(B) of the Act. I.G. Ex. 1. 7. 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. 8. 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. A finding of aggravating factors
may support an exclusion of more than five years. A finding of mitigating
factors may result in a reduction of the exclusion period, but in any
case no less than the minimum period of five years. 9. Petitioner's criminal conviction constitutes a conviction
within the scope of sections 1128(a)(1) and (3) of the Act. 10. Petitioner's conviction for a felony 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. 11. The I.G. is authorized to exclude Petitioner pursuant
to section 1128(a)(1) of the Act. 12. Petitioner did not prove the presence of any mitigating
factors. 13. The I.G. established the existence of aggravating
factors under 42 C.F.R. �� 1001.102(b)(1) and (2). 14. The aggravating factors established by the I.G. prove
Petitioner to be untrustworthy. 15. A 10-year exclusion of Petitioner is not unreasonable.
DISCUSSION Petitioner challenges that he is subject to exclusion
under section 1128(a)(1) of the Act and maintains instead that as his
criminal conviction was a misdemeanor, he is more properly subject to
a three-year permissive exclusion. I disagree. It is irrelevant that Petitioner's
conviction was for a misdemeanor for the statute makes no distinction
between degrees of criminal offenses. Brenda J. Motley, DAB CR414
(1996). The I.G. has no discretion to impose a permissive exclusion when
the threshold provisions of section 1128(a) exclusion have been fulfilled,
even when the conduct can be fairly characterized under either permissive
or mandatory exclusion provisions. Jack W.Greene,
DAB No. 1078 (1989), aff'd Greene v. Sullivan, 731 F.Supp.
835 (E.D. Tenn. 1990). I therefore find that the I.G. has authority to
proceed under section 1128(a)(1) of the Act. I further find that the I.G. has demonstrated that Petitioner
is subject to exclusion under section 1128(a)(1) of the act. Petitioner
pled guilty to a felony which constitutes a conviction under section 1128(a)(3)
of the Act and the Court entered judgment in Petitioner's case which constitutes
a conviction under section 1128(a)(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 a felony in that he filed or caused to
be filed fraudulent claims for dental 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 10-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,
DAB CR270 (1993). Petitioner has not established any of the mitigating
factors listed at 42 C.F.R. � 1001.102(c). The Petitioner claims that
there are no other aggravating factors in his case other than those cited
by the I.G. and that he cooperated with prosecuting officials investigating
his case and that he promptly accepted responsibility and paid his fines.
Such claims are not mitigating factors within the scope of the regulations.
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 two aggravating factors: (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); (2) the acts resulting in Petitioner's conviction or similar acts, caused financial loss of $1,500 or more to a governmental program or to one or more entities. Petitioner contends that the I.G. improperly determined that his offenses were committed over a period of one year or more. Count Two of the Indictment, for which Petitioner was convicted, reflects that the acts occurred from March 1, 1997 through July 16, 1998. (See Indictment, 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, DAB CR123 (1991).Petitioner further argues that his conviction did not result in a loss of $1,500 or more to a governmental program. A fair estimate of the amount of damages caused by Petitioner may be found in the restitution that he was sentenced to pay. Gilbert Ross, DAB CR478 (1997): see also Steven Alonso Henry, M.D., DAB CR638 (2000). As established by the $12,000 restitution order, Petitioner's criminal acts resulted in substantial loss to the Denti-Cal program. Petitioner asserts that the I.G. incorrectly relied on the amount $35,784 specified in the judgment which he agreed to pay as deductions from weekly payments made to him by Denti-Cal. Petitioner admits that this order effectively required him to provide free services to Denti-Cal recipients. I find that this is the nature of restitution to the program which Petitioner defrauded and can be considered along with the $12,000 payment specifically denominated as restitution. 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 10-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 15-month period resulting in a substantial financial loss to that program. His fraud was recurrent and deliberate, not random and impulsive. I note also that the losses in Petitioner's case were multiple times the regulatory minimum. In this regard I find that even considering alone the $12,000 restitution payment (without consideration of the $35,784 amount cited by the I.G.), a 10-year exclusion is not unreasonable.
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JUDGE | |
Joseph K. Riotto |
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FOOTNOTES | |
1. In this decision, I use the term "Medicaid" to refer to these State health care programs. | |