Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Lloyd G. Bayme, M.D., |
DATE: February 25, 2002 |
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The
Inspector General
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Docket No.C-01-476 Decision No. CR876 |
DECISION | |
DECISION This case is before me on the Inspector General's (I.G.)
motion for summary judgment. The parties have submitted briefs and exhibits
in support of their positions, and I have reviewed their pleadings carefully.
Having done so, I find no material facts in dispute and conclude that
the I.G.'s position is correct as a matter of law. Accordingly, I grant
the I.G.'s motion for summary judgment and sustain the I.G.'s determination
to exclude the Petitioner Lloyd G. Bayme, M.D. (Petitioner), from participating
in Medicare, Medicaid, and all other federal health care programs for
a period of 10 years. By letter dated January 31, 2001, the I.G. of the United
States Department of Health and Human Services notified Petitioner that
he was to be excluded, for a period of 10 years, from participation in
the Medicare, Medicaid, and all other federal health care programs as
required by section 1128(a)(4) of the Social Security Act (Act), 42 U.S.C.
� 1320a-7(a). The basis for the I.G.'s action was Petitioner's 1999 conviction
in the Supreme Court of the State of New York, County of Kings, of having
violated State statutes forbidding the criminal sale of a prescription
for a controlled substance and forbidding the act of conspiring to do
so. Both crimes were felonies. The statute under which the I.G. proceeded establishes
a five-year minimum mandatory exclusion of persons or entities convicted
of such violations but also provides that the I.G. may enlarge the term
of exclusion for an additional period if certain aggravating factors are
shown to be present. In this case, the I.G. asserts that the presence
of two aggravating factors warrants the addition of five additional years
to the period of exclusion, and thus has determined that Petitioner should
be excluded from all federal health care programs for 10 years. By his letter of March 6, 2001, Petitioner timely sought
review of the I.G.'s determination. The sufficiency of Petitioner's hearing
request has not been directly challenged, and no other jurisdictional
issues have been raised or become apparent to me. At the time he filed
his hearing request, and at all subsequent times, Petitioner has appeared
pro se. I held a prehearing telephone conference in this case
on June 6, 2001, during which conference I reminded Petitioner of his
right to retain counsel in these proceedings. I directed the parties to
submit their respective positions on whether I had the jurisdiction to
modify or otherwise alter the exclusion in the manner sought by Petitioner.
The I.G. filed a motion for summary judgment, accompanied by a brief and
exhibits. Because Petitioner failed to submit anything by the deadline,
I issued an Order to Show Cause. After receiving Petitioner's response
to the Order to Show Cause, I established further briefing deadlines.
The period for filing pleadings has now closed. I admit I.G. Exhibits (Exs.) 1 - 6 into evidence. Petitioner
has tendered his exhibits in a somewhat confusing form inconsistent with
practice in this forum, but I have admitted them as Petitioner's Exhibits
(P. Exs.) 1 - 11 after renumbering them according to the attached Appendix. Because I believe that the I.G.'s motion for summary judgment
is supported by the settled facts and well-established law, I grant the
Motion, and thereby sustain the I.G.'s determination to exclude Petitioner
from participation in all Medicare, Medicaid, and other federal health
care programs for a period of 10 years. I shall set forth my reasons for
doing so, together with the findings of fact and conclusions of law on
which I rest my decision, in detail below. ISSUES
The legal issues before me in this case are limited to two. They are:
CONTROLLING STATUTES AND REGULATIONS Section 1128(a)(4) of the Act requires the exclusion of
any individual or entity convicted after August 21, 1996, under federal
or State law, of a criminal offense consisting of a felony relating to
the unlawful manufacture, distribution, prescription, or dispensing of
a controlled substance. The law not only mandates exclusions of individuals
or entities convicted of this type of offense, it requires that the term
of such exclusions be for at least five years pursuant to section 1128(c)(3)(B)
of the Act. The Act defines "conviction" as including those circumstances
"when a judgment of conviction has been entered against the individual
or entity by a Federal, State, or local court." Act, section 1128(i)(1).
This definition is repeated at 42 C.F.R. � 1001.2. The minimum mandatory five-year exclusion period is subject
to enlargement: 42 C.F.R. � 1001.102 allows the
I.G. to extend the five-year period if certain aggravating factors are
demonstrated. If the I.G. proposes to rely on any of the specified aggravating
factors to seek an enlargement of the exclusionary period, then the subject
of the proposed exclusion is permitted to assert the presence of certain
mitigating factors and thereby to seek to limit the exclusion to the five-year
mandatory minimum. Those aggravating and mitigating factors are set out
in detail at 42 C.F.R. � 1001.102(b)(1) - (9) and (c)(1) - (3). The two
aggravating factors relied on by the I.G. in this case are:
The I.G.'s invoking of these aggravating factors allows
Petitioner to assert, if he chooses to do so, certain factors that might
support mitigation of the extended exclusion. As I have noted above, those
potentially mitigating factors are precisely defined at 42 C.F.R. � 1001.102(c)(1)
- (3), but none of them has been asserted specifically by Petitioner in
these proceedings. That is not to say that Petitioner has declined to argue
the presence of ameliorating circumstances. Petitioner has provided substantial
evidence of his personal history, his character, and his reputation in
his community. He has vigorously protested his exclusion. But the bases
on which his position rests do not amount to mitigating factors as defined
by the regulation. Even allowing some latitude to Petitioner's contentions
given his pro se status, his arguments are unavailing. FINDINGS OF FACT AND CONCLUSIONS
OF LAW I find and conclude as follows: 1. On his pleas of guilty on April 30, 1999 in the Supreme
Court of the State of New York, County of Kings, Petitioner Lloyd G. Bayme
was convicted of two felonies: conspiracy to write and sell prescriptions
that were to be sold illegally and the illegal sale of a prescription
for a controlled substance. I.G. Ex. 3. 2. Judgment of conviction and sentence were imposed on
Petitioner in the Supreme Court on June 18, 1999. I.G. Exs. 4, 5. 3. The pleas, judgment of conviction, and sentence described
above constitute a "conviction" within the meaning of sections 1128(a)(4)
and 1128(i)(1) of the Act, and 42 C.F.R. � 1001.2. 4. By reason of his conviction, Petitioner was subject
to, and the I.G. was authorized to impose, a period of exclusion from
Medicare, Medicaid, and all other federal health care programs of not
less than five years. Act, section 1128(c)(3)(B). 5. On January 31, 2001, the I.G. notified Petitioner that
he was to be excluded from participation in Medicare, Medicaid, and all
other federal health care programs for a period of 10 years, based on
the presence of two aggravating factors set out in 42 C.F.R. � 1001.102(b)(2)
and (9). I.G. Ex. 1. 6. On March 6, 2001, Petitioner perfected his appeal from
the I.G.'s action by filing a timely hearing request. 7. During the proceedings at which his guilty pleas were
offered, and while under oath, Petitioner admitted that the term of the
conspiracy to which he pleaded guilty was from May 1, 1994 until some
time in 1996. I.G. Ex. 3, at 7. 8. Because the conspiracy to which Petitioner pleaded
guilty was committed over a period of one year or more, the aggravating
factor set out in 42 C.F.R. � 1001.102(b)(2) is present. 9. Petitioner has been the subject of an adverse action
by the medical licensing authority of the State of New York as a consequence
of the same set of circumstances leading to his conviction described above.
I.G. Ex. 4, at 17 - 18; I.G. Ex. 6, at 1. 10. Because Petitioner has been the subject of an adverse
action by the State medical licensing authority based on the same set
of circumstances that served as the basis for the conviction and exclusion
described above, the aggravating factor set out in 42 C.F.R. �
1001.102(b)(9) is present. 11. None of the mitigating factors set out in 42 C.F.R. � 1001.102(c)(1) - (3) are present. 12. The I.G.'s exclusion of Petitioner for a period of
10 years is supported by fact and law and is reasonable as a matter of
law. I.G. Exs. 1 - 6; Findings and Conclusions 1 - 11, supra. 13. There are no remaining disputed issues of material
fact and summary judgment is therefore appropriate in this matter. DISCUSSION As I have noted above, there are two issues before me
in this case: first, whether the I.G. is authorized to exclude Petitioner
from Medicare, Medicaid, and all other federal health care programs because
of his conviction; and second, whether the two aggravating factors defined
by regulation are present and support the I.G.'s enlargement of the period
of Petitioner's exclusion. As to the first issue, there is no serious
debate. The I.G.'s exhibits demonstrate that Petitioner, acting
with the advice and assistance of counsel, pleaded guilty to two felonies
related to the illegal sale of prescriptions for controlled substances
(I.G. Ex. 3). The first felony was criminal conspiracy: Petitioner admitted
that he had conspired with another defendant to write and sell prescriptions
to be sold illegally, and that on or about January 19, 1996, Petitioner
wrote such an illegal prescription for Percocet (I.G. Ex. 3, at 7). Petitioner
explicitly admitted that the term of the conspiracy began on May 1, 1994.
(I.G. Ex. 3, at 7). The second felony was the criminal sale of a prescription
for a controlled substance: Petitioner admitted that while acting as a
licensed physician sometime between January 19, 1996 and February 7, 1996,
he knowingly and in other than good faith sold a prescription for the
controlled substance Percocet (I.G. Ex. 3, at 8). Petitioner's guilty
pleas were accepted provisionally when they were entered (I.G. Ex. 3,
at 9 - 10) and final judgment and sentence on conviction were entered
on June 18, 1999 (I.G. Exs. 4, 5). The fact of Petitioner's conviction on two felony charges
is thus established by the court records before me (I.G. Exs. 3 - 5).
Although convictions relied on in exclusion proceedings are not subject
to collateral attack in this forum, I note in passing that Petitioner
was represented at every stage of the criminal proceedings by counsel
who vigorously protected Petitioner's interests and negotiated a substantial
reduction of both the charges and the penalties to which Petitioner had
been exposed. There is no material dispute as to the fact of Petitioner's
conviction, and the I.G.'s position as to the mandatory exclusion required
by section 1128(a)(4) of the Act is correct: 1128(a)(4) and section 1128(c)(3)(B)
of the Act require that Petitioner be excluded for a minimum of five years. The two aggravating factors relied on by the I.G. to enlarge the five-year exclusion to a term of 10 years may also be found in the records before me. The first aggravating factor depends upon the period of time over which the criminal activity was conducted: 42 C.F.R. � 1001.102(b)(2) is invoked whenever "[t]he acts that resulted in the conviction . . . were committed over a period of one year or more." At the time of his guilty pleas, Petitioner was placed under oath (I.G. Ex. 3, at 3) and carefully questioned by the presiding judge. Among other points into which the judge inquired was the term of the conspiracy that Petitioner admitted (I.G. Ex. 3, at 7):
This open-court colloquy, undertaken when Petitioner was
under oath and represented by counsel, fully establishes that the crime
of conspiracy to write and sell prescriptions to be sold illegally was
committed over a period of more than one year. The aggravating factor
set out in 42 C.F.R. � 1001.102(b)(2) has been demonstrated here beyond
the point of material dispute. The second aggravating factor on which the I.G. relies
can also be established by the court records before me. That factor is
present when ". . . the individual . . . has been the subject of any other
adverse action by any Federal, State or local . . . board, if the adverse
action is based on the same set of circumstances that serves as the basis
for imposition of the exclusion." 42 C.F.R. � 1001.102(b)(9). The I.G.
asserts that this regulation's terms are satisfied by the fact that Petitioner
surrendered his license to practice medicine as a consequence of his criminal
misconduct. The status of Petitioner's medical license was the topic of
specific inquiry by the sentencing judge on June 18, 1999 (I.G. Ex. 4,
at 17 - 18):
In fact, the surrender of Petitioner's license to practice
medicine took place on November 19, 1997 (I.G. Ex. 6, at 1), and the official
record of that surrender makes the connection between his criminal conduct
and the license-surrender unmistakable. The presence of the aggravating
factor set out in 42 C.F.R. � 1001.102(b)(9) has been established beyond
material dispute. As I have noted above, the regulations permit an excluded
party to reply to the I.G.'s assertion of aggravating factors, but just
as the aggravating factors are specifically enumerated and quite narrowly
defined, so are the factors which a party may claim as mitigating. They
are set out at 42 C.F.R. � 1001.102(c)(1), (2), and (3), and they appear
immediately following the regulation's emphatic expression that "Only
the following factors may be considered mitigating . . . " The first mitigating
factor requires a showing that the criminal conduct at issue involved
no more than three misdemeanors and a loss of less than $1,500 to the
victim program. The second mitigating factor requires an explicit finding
by the sentencing court that the excluded party's culpability was reduced
by a "mental, emotional, or physical condition before or during the commission
of the offense." The third mitigating factor requires a showing that the
excluded party cooperated with law enforcement or program-integrity officials,
with substantial results. As to each of the mitigating
factors: ". . . Petitioner ha[s] the burden of proving any mitigating
factor by a preponderance of the evidence, since the mitigating factor
is in the nature of an affirmative defense." Barry D. Garfinkel, M.D.,
DAB No. 1572, at 12. (1996); see also Andrew H. Lewis,
DAB CR625 (1999); James H. Holmes, M.D., DAB CR270 (1993). Although Petitioner has not explicitly invoked any of
the specified mitigating factors, I have nevertheless searched his pro
se pleadings - which include his brief dated November 20, 2001, his
two letters dated September 30, 2001, and his hearing request dated March
6, 2001 - and the exhibits identified in the Appendix for assertions which
might be read as colorably raising any of the mitigating factors. I have
found none, and on the settled facts of this case must find and conclude
that none are available to him. First, because it is undisputed that the two charges to which Petitioner pleaded guilty were felonies, the potential mitigation offered by 42 C.F.R. � 1001.102(c)(1) is unavailable. Next, because there is no suggestion in any of the court records of Petitioner's being subject to a culpability-diminishing mental, emotional, or physical condition, the terms of 42 C.F.R. � 1001.102(c)(2) are inapposite. And it is impossible to find a colorable claim that Petitioner cooperated with law enforcement officials, as detailed in 42 C.F.R. � 1001.102(c)(3), in a record containing these statements by the prosecuting attorney at Petitioner's sentencing hearing (I.G. Ex. 4, at 6 - 8):
On the record before me I cannot so much as infer, much
less find, the presence of any of the three specified mitigating factors
as they are defined in 42 C.F.R. � 1001.102(c). My effort to search this
record for colorable claims in mitigation is in part the result of Petitioner's
pro se status, and is in part driven by my wish to avoid the
appearance of trivializing the evidence of good character and community
service that Petitioner has produced; in no sense whatsoever should my
effort be understood as a relaxation of the rule so clearly articulated
in Barry D. Garfinkel, supra. But that search has left
me utterly satisfied that neither as a matter of fact, nor as a matter
of law, is Petitioner entitled to claim any of the mitigating factors
set out in the controlling regulation.
CONCLUSION For the reasons set forth above, I grant the I.G.'s motion for summary judgment and SUSTAIN the I.G.'s exclusion of Petitioner, from participation in Medicare, Medicaid, and all other federal health care programs for a period of 10 years, pursuant to the terms of section 1128(a)(4) of the Act, 42 U.S.C. � 1320a-7(a).
Petitioner's exhibits have been submitted in two groups.
The first group was attached to one of the two letters dated September
30, 2001, filed by Petitioner in response to my September 24, 2001 Order
to Show Cause. The second group was submitted with Petitioner's November
20, 2001 brief. None of these proposed exhibits was marked properly, and
there is a very substantial potential for confusion or oversight unless
they are identified and given consecutive numbers. Accordingly, I have
assigned every document proffered by Petitioner a new exhibit number as
set forth below, and have admitted each. There may be some duplication
of documents, but no document tendered by Petitioner has been excluded
or denied admission. P. Ex. 1: P. Ex. 1: 11 pages described in numbered paragraph
1 of Petitioner's brief. P. Ex. 2: P. Ex. 2: five pages of documents described
in numbered paragraph 2 of that brief. P. Ex. 3: P. Ex. 3: four pages of documents described
in numbered paragraph 3 of that brief. P. Ex. 4: P. Ex. 4: eight pages of documents described
in numbered paragraph 10 of that brief. P. Ex. 5: P. Ex. 5: 11 pages of documents, including "the
various certificates," described in numbered paragraph 11 of that brief. P. Ex. 6: P. Ex. 6: two pages of documents described in
numbered paragraph 14 of that brief. P. Ex. 7: P. Ex. 7: two pages of documents described in
numbered paragraph 13 of that brief. P. Ex. 8: P. Ex. 8: six pages of documents described in
numbered paragraph 12 of that brief. P. Ex. 9: P. Ex. 9: 18 pages of documents described in
the introductory paragraph of that brief. P. Ex. 10: P. Ex. 10: 13 pages of documents attached to
Petitioner's letter "I would like to add . . ." dated September 30, 2001. P. Ex. 11: P. Ex. 11: 18 pages of various documents submitted by Petitioner but not otherwise described. Some pages may duplicate material included in other Petitioner's exhibits. |
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JUDGE | |
Richard J. Smith Administrative Law Judge
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