Rodolfo Martinez, DAB CR5450 (2019)

DECISION

Petitioner, Rodolfo Martinez, was employed by a home health agency (HHA) in Florida.  Petitioner pleaded guilty to one count of conspiracy to pay health care kickbacks.  Now, pursuant to section 1128(a)(1) of the Social Security Act (Act),1 the Inspector General (IG) has excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of five years.

For the reasons explained below, I find that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare.  The IG was therefore required to exclude him from program participation.  The duration of the exclusion is the minimum period required by section 1128(c)(3)(B) of the Act; accordingly, it is reasonable as a matter of law.  Finally, I am without authority to change the effective date of Petitioner’s exclusion.

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I. Background

In a letter dated November 30, 2018, the IG advised Petitioner that he was excluded from participation in Medicare, Medicaid, and all federal health care programs because he had been convicted, in the United States District Court, Southern District of Florida (federal district court), of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  IG Exhibit (Ex.) 1 at 1.  The letter explained that the exclusion was imposed pursuant to section 1128(a)(1) of the Act.  Id.  Petitioner timely requested review.  I convened a telephone prehearing conference and issued an Order and Schedule for Filing Briefs and Documentary Evidence (Briefing Order).

Pursuant to the Briefing Order, the IG submitted a brief and five proposed exhibits (IG Br.; IG Exs. 1-5).  Petitioner filed a brief (P. Br.).  Petitioner did not offer any proposed exhibits.  Petitioner did not object to the IG’s proposed exhibits.  In the absence of objection, I admit into evidence IG Exs. 1-5.

The Briefing Order directed the parties to indicate in their briefs whether an in-person hearing would be necessary and, if so, to submit the testimony of any proposed witness as “written direct testimony in the form of an affidavit or declaration.”  Briefing Order ¶ 7.c.ii (emphasis omitted).  I also explained that I would hold a hearing only if a party offered witness testimony that is relevant and non-cumulative and the opposing party requested cross‑examination.  Id. ¶ 9.  Both parties indicated that an in-person hearing is not necessary, and neither party submitted the written direct testimony of any proposed witness.  IG Br. at 7; P. Br. at 3.  I therefore decide this case based on the written record.

II. Discussion

A. Petitioner must be excluded pursuant to section 1128(a)(1) of the Act because he was convicted of a criminal offense related to the delivery of an item or service under the Medicare program.2

The Act requires the Secretary of Health and Human Services (Secretary) to exclude from program participation any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).  The Secretary has delegated this authority to the IG.  42 C.F.R. § 1001.101(a).

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1. Petitioner was convicted of a criminal offense.

Petitioner concedes that he was convicted of a criminal offense.  P. Br. at 1.3  The IG’s evidence demonstrates that, on or about March 27, 2018, Petitioner pleaded guilty to one count of conspiracy to pay health care kickbacks in violation of 18 U.S.C. § 371.4  IG Ex. 5 at 1.  Based on Petitioner’s guilty plea, the federal district court adjudicated Petitioner guilty and imposed sentence on March 27, 2018.  Id.  Accordingly, Petitioner was convicted of a criminal offense as that term is defined in subsections 1128(i)(1) and (3) of the Act.

2. The criminal offense of which Petitioner was convicted was related to the delivery of an item or service under Medicare.

Petitioner also concedes that his conviction was related to the delivery of an item or service under the Medicare program.  P. Br. at 2.  There is no doubt that Petitioner was convicted of a program-related crime.  In connection with his guilty plea, Petitioner signed a document styled “Factual Basis in Support of Plea.”  IG Ex. 2.  By signing this document, Petitioner acknowledged that the U.S. Attorney had sufficient evidence to prove the following facts beyond a reasonable doubt:

From in or around November 2016, through in or around June of 2017, [Petitioner] and his co-conspirators recruited Medicare beneficiaries by paying and causing the payment of cash kickbacks to the Medicare beneficiaries in exchange for them serving as patients at [the HHA that employed Petitioner].  In addition, [Petitioner] and his co-conspirators caused [the HHA] to submit false and fraudulent claims to Medicare for home health services that were never provided to the recruited Medicare beneficiaries.

Id. at 1.  Appellate panels of the Departmental Appeals Board (DAB) have often concluded that a conviction for violating the federal Anti-Kickback statute is related to the delivery of items or services under Medicare.  See, e.g., Dinesh Patel, M.D., DAB No. 2551 at 6 (2013) (citing Boris Lipovsky, M.D., DAB No. 1363 (1992) and

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Niranjana B. Parikh, M.D., DAB No. 1334 (1992)); see also Brij Mittal, M.D., DAB No. 1894 at 2 (2003) (by enacting the Anti-Kickback statute, Congress determined “that it is harmful to the Medicare program for individuals to receive kickbacks for referring beneficiaries to particular medical suppliers or service providers (rather than basing the referrals solely on what is in the best interests of the beneficiary without the added incentive of a kickback)”).

Having conceded that the IG has a basis to exclude him, Petitioner’s sole argument in the present proceeding is that his exclusion from program participation should run from an earlier date.  P. Br. at 4.  As I explain in the following section of this decision, Petitioner’s argument is foreclosed under the applicable regulations, as interpreted by appellate panels of the DAB.

B. Petitioner’s exclusion is effective December 20, 2018, 20 days from the date of the IG’s notice of exclusion.

Petitioner argues that the effective date of his exclusion should be made retroactive to March 27, 2018, the date on which his term of probation began.  P. Br. at 4.  In support of his position, Petitioner states only that the IG “unfairly delayed the effective date of the exclusion.”  Id.

This assertion amounts to an argument that I should apply the equitable doctrine of laches against the IG.  However, DAB appellate panels have made it clear that neither they, nor administrative law judges, may decline to apply a regulation based on equity alone because DAB adjudicators are bound by all applicable laws and regulations.  Rita Patel, DAB No. 2884 at 7 (2018) (citing Kenneth Schrager, DAB No. 2366 at 6 (2011)).  In particular, appellate panels have concluded that the statute and regulations governing exclusions do not give an administrative law judge authority to adjust the beginning date of an exclusion.  Shaikh M. Hasan, M.D., DAB No. 2648 at 9 (2015) (citing, inter alia, Kailash C. Singhvi, M.D., DAB No. 2138 (2007), aff’d, Singhvi v. Inspector General, Dept. of Health & Human Servs., No. CV-08-0659 (SJF) (E.D.N.Y. Sept. 21, 2009); Thomas Edward Musial, DAB No. 1991 at 4 (2005); Douglas Schram, R.Ph., DAB No. 1372 at 11 (1992) (“Neither the [administrative law judge] nor this Board may change the beginning date of Petitioner’s exclusion.”)).

Accordingly, as required by regulation, “[t]he exclusion will be effective 20 days from the date of the notice.”  42 C.F.R. § 1001.2002(b).

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III. Conclusion

For the reasons explained above, I conclude that the IG was required to exclude Petitioner pursuant to section 1128(a)(1) of the Act due to his conviction of a criminal offense related to the delivery of an item or service under the Medicare program.  An exclusion pursuant to section 1128(a)(1) must be for a minimum period of five years.  I therefore sustain Petitioner’s five-year exclusion, effective December 20, 2018.

• 1. The current version of the Social Security Act can be found at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.
• 2. My conclusions of law appear as headings in bold italic type.  My findings of fact appear in the supporting text.
• 3. I cite to the PDF page numbers, as Petitioner’s brief is not separately paginated.
• 4. Title 18 § 371 of the U.S. Code makes it a crime to conspire to commit any offense against the United States or to defraud the United States.  The criminal information in Petitioner’s case charged that Petitioner and others conspired to violate 42 U.S.C. § 1320a-7b(b)(2)(A) (the Anti-Kickback statute) by “knowingly and willfully offering and paying remuneration, including kickbacks and bribes” to induce the referral of patients to receive services that may be paid for by Medicare.  IG Ex. 3 at 6.