Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Egbert Aung Kyang Tan, M.D., |
DATE: July 19, 2001 |
- v - |
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The
Inspector General
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Docket No.C-01-095
Decision No. CR798 |
DECISION | |
DECISION I sustain the Inspector General's (I.G.) determination
to exclude Egbert Aung Kyang Tan, M.D., Petitioner, from participation
in Medicare, Medicaid, and all other federal health care programs for
a period of 10 years. I find that the I.G. is authorized to exclude Petitioner
pursuant to section 1128(a)(1) of the Social Security Act (Act), and that
the 10-year exclusion imposed by the I.G. against Petitioner falls within
a reasonable range. I. BACKGROUND By letter dated October 31, 2000, the I.G. notified Petitioner
that he was being excluded from participation in Medicare, Medicaid, and
all federal health care programs for a period of 10 years. The I.G. advised
Petitioner that she is authorized to exclude him pursuant to section 1128(a)(1)
of the Act because of his conviction in the Supreme Court of the State
of New York for criminal offenses related to the delivery of an item or
service under the Medicaid program. By letter dated November 11, 2000,
Petitioner requested a hearing and the case was assigned to me. On December 11, 2000, I held a prehearing conference by
telephone at which the parties agreed that the case could be heard and
decided based on written submissions. Both parties submitted briefs, accompanied
by documentary evidence. The I.G. filed seven exhibits (I.G. Exs. 1 -
7) as part of her submission, and Petitioner filed 10 exhibits labeled
A - J as part of his submission. I have renumbered Petitioner's exhibits
A - J as exhibits 1 - 10 (P. Exs. 1 - 10) to conform to Civil Remedies
procedures. In the absence of objection, I receive into evidence I.G.
Exs. 1 - 7 and P. Exs. 1 - 10. During the time period relevant to this case, Petitioner
was a licensed psychiatrist, practicing in the State of New York and enrolled
as a provider in the New York Medicaid program. I.G. Ex. 3. On April 18,
2000, Petitioner pled guilty to one count of second degree grand larceny,
13 counts of first degree offering a false instrument for filing, and
two counts of first degree falsifying business records. I.G. Ex. 5. He
admitted that he submitted false claims to the New York State Medicaid
Program. I.G. Ex. 5. Petitioner's conviction based on his guilty plea
and the New York Supreme Court's acceptance of that plea constitutes a
conviction under section 1128(i)(3) of the Act. Petitioner was sentenced
to five years probation and 100 hours of community service and ordered
to pay $100,000 in restitution. I.G. Ex. 6. II. ISSUE Petitioner concedes that he was convicted under State
law of a criminal offense related to the delivery of an item or service
under the New York State Medicaid program, and acknowledges the mandatory
imposition of a five-year exclusion. P. Br. at 10; See Order dated
December 11, 2000. The sole issue before me is whether the length of the
exclusion in excess of the five year mandatory minimum is reasonable.
42 C.F.R. � 1001.2007. III. DISCUSSION Section 1128(a)(1) requires that the Secretary of Health
and Human Services (Secretary) exclude an individual who has been convicted
under federal or State law of a criminal offense related to the delivery
of an item or service under Medicare or a State health care program.(1)
42 C.F.R. � 1001.101. Individuals excluded under section 1128(a)(1) of
the Act must be excluded for a period of not less than five years. Section
1128(c)(3)(B). The mandatory minimum period of exclusion may be increased
with the existence of certain aggravating factors that are not offset
by certain mitigating factors. 42 C.F.R. � 1001.102. The following three
factors may serve as a basis for lengthening the period of exclusion:
(1) the acts resulting in the conviction, or similar acts, resulted in
a financial loss to Medicare and the State health care programs of $1,500
or more (42 C.F.R. � 1001.102(b)(1)); (2) the acts that resulted in the
conviction, or similar acts, were committed over a period of one year
or more (42 C.F.R. � 1001.102(b)(2)); and (3) the convicted individual
or entity has a prior criminal, civil, or administrative sanction record
(42 C.F.R. � 1001.102(b)(6)). The Secretary has delegated to the Inspector General (I.G.) the authority to impose exclusions. 42 C.F.R. � 1001.401(a). So long as the amount of time chosen for the exclusion imposed on Petitioner by the I.G. is within a reasonable range, based on demonstrated criteria, I have no authority to change it. Joann Fletcher Cash, DAB No. 1725 at 7 (2000), citing 57 Fed. Reg. 3298, 3321 (1992).
The parties agree that Petitioner was convicted under
State law of criminal offenses related to the delivery of an item or service
under the New York State Medicaid program, and, in open court, Petitioner
freely admitted his guilt. I.G. Ex. 5. Section 1128(a)(1) of the Act applies
to any individual or entity who is convicted of a criminal offense that
is related to the delivery of an item or service under Medicare or any
State health care program. The record reflects that Petitioner submitted, or caused
to be submitted, claims to the New York Medicaid program for services
that he did not provide. I.G. Ex. 4. As a result of Petitioner's false
claim submissions, he received monies from the New York Medicaid program
to which he was not entitled. I.G. Ex. 4 and 5. It is well settled that
the filing of fraudulent Medicare or Medicaid claims constitutes program-related
misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996); Rasaly
Saba Khalil, M.D., DAB CR353 (1995). I find that Petitioners' convictions,
as described above, are of crimes that are program- related within the
meaning of section 1128(a)(1) of the Act. Nevertheless, in his submissions to this tribunal, Petitioner
suggests that his problems resulted from the ignorance or misconduct of
his billing service (Maffia Billing Service), which purportedly confused
the billing code for psychotherapy with the billing code for psychopharmacology.
P. Br. at 6; P. Ex. 2 at 47 et seq. This is not an appropriate forum for re-litigating Petitioner's criminal convictions. The regulations are explicit:
42 C.F.R. � 1001.2007(d). Joann Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, R Ph., DAB No. 1380 at 8 (1993) ("There is no reason to 'unnecessarily encumber the exclusion process' with efforts to reexamine the fairness of state convictions").
Section 1128(a)(1) of the Act mandates that the I.G. exclude any individual or entity who is convicted of an offense which is related to the delivery of an item or service under Medicare or any State health care program. The I.G. must exclude Petitioner, inasmuch as Petitioner was convicted of such offenses.
By regulation, the Secretary established the criteria
for determining the length of exclusions imposed pursuant to section 1128
of the Act. 42 C.F.R. � 1001.102 lists the aggravating and mitigating
factors applicable to a section 1128(a) exclusion. The presence of an
aggravating factor or factors not offset by any mitigating factor or factors
justifies lengthening the mandatory five year period of exclusion. Evidence
that does not pertain to one of the specific aggravating or mitigating
factors is not relevant and may not be used to decide whether an exclusion
of a particular length is reasonable. Petitioner admitted criminal responsibility for serious crimes. Petitioner also acknowledges the presence of two of the aggravating factors listed at 42 C.F.R. � 1001.102(b): that his crimes resulted in a loss to the State of more than $1,500, and that the acts resulting in his conviction occurred over a period of more than one year. He challenges the I.G.'s finding of a prior administrative sanction as an aggravating factor, and suggests that I consider some additional mitigating factors.
Petitioner does not challenge the existence of this aggravating factor, in that he was ordered to pay $100,000 in restitution to the New York Attorney General's Office. I.G. Ex. 6. The sentencing judge stated, "I have reviewed the grand jury testimony and I think a hundred thousand dollars is certainly well below what was actually taken." I.G. Ex. 5 at 4. As established by his $100,000 restitution order, Petitioner's criminal acts resulted in a financial loss to the New York Medicaid program of significantly more than $1,500.
The record reflects that Petitioner pled guilty to criminal acts covering a time period from January 1, 1997, through August 31, 1998, a time period of more than one year. I.G. Ex. 4. Petitioner does not dispute that the acts occurred over more than one year, but asserts (irrelevantly) that:
P. Br. at 12. That he stopped his criminal behavior after he had been caught and realized his conduct was under scrutiny, is hardly mitigating.
By letters dated November 30, 1999, and May 2, 2000, the
State of New York Department of Health excluded Petitioner from participation
in the State Medicaid program. I.G. Ex. 7. Because New York State's action
occurred prior to the I.G.'s October 31, 2000 exclusion, the I.G. considers
this a prior administrative sanction under 42 C.F.R. � 1001.102(b)(6).
See Gerald A. Snider, M.D., DAB CR484 (1997); Dionisio
Lazaro, M.D., DAB CR603 (1999) (Even if the prior administrative sanction
emanates from the same conduct or conviction which is the basis for the
I.G.'s exclusion, it is relevant that another administrative body has
found the excluded individual to be untrustworthy and therefore should
be considered an aggravating factor). Petitioner challenges such a broad definition of "prior
administrative sanction." He notes that before his felonious conduct,
his medical career was "without blemish," and argues that the administrative
sanction the I.G. refers to "was simply an identical, time-related outgrowth
consequence of the very conviction similarly utilized by the OIG as her
No. 1 aggravating factor." P. Br. at 7. I need not reach this issue. Whether the state sanction falls within the definition of "prior administrative sanction," does not alter the seriousness of Petitioner's offense, and the totality of the circumstances here justify a 10-year exclusion. The financial impact was substantial, at the $100,000 level. Given the sentencing judge's statement that he believed that $100,000 was certainly well below what was actually taken (I.G. Ex. 5 at 4), it is possible that the financial impact was even more substantial. Petitioner engaged in a massive fraud against the New York Medicaid program. His crime was deliberate and the record reflects that he took steps to conceal his fraud by deliberately altering patient records. Petitioner repeatedly submitted fraudulent claims for payment for a period of 20 months. Each of those submissions constituted a separate act of fraud directed against Medicaid and evidences a high degree of untrustworthiness.
Petitioner suggests that additional factors should be
considered in mitigation. He argues that, except for this instance, his
medical record has been without blemish, that he paid $100,000 in restitution,
that he sincerely regrets his crime, and that his medical license is still
in effect. He also asserts that he is caring, competent, and professional,
and that some of his patients testified for him at a hearing concerning
his professional medical conduct. None of these are mitigating factors. The only factors which can be considered mitigating are:
(1) Petitioner was convicted of three or fewer misdemeanor offenses and
the resulting financial loss to the program was less than $1,500; (2)
the record demonstrates that Petitioner had a mental, physical, or emotional
condition that reduced his culpability; or (3) Petitioner's cooperation
with federal or state officials resulted in others being convicted or
excluded, or additional cases being investigated, or a civil money penalty
being imposed. 42 C.F.R. 1001.102(c). This case presents no mitigating
factors. Petitioner was convicted of more than three misdemeanor offenses;
program losses substantially exceeded $1,500; no evidence suggests any
physical, mental, or emotional conditions; nor did Petitioner's cooperation
result in any investigations or convictions. I note also that no one "deserves
special credit (in the form of a reduced period of exclusion) for doing
what is expected, that is, obeying the law." Barry D. Garfinkel, M.D.
DAB No. 1572 at 32 n. 32 (1996) (citing 57 Fed. Reg. at 3315). I therefore find that no mitigating factors justify reducing
the period of exclusion. IV. Conclusion For the reasons set forth above, I conclude that the I.G. was authorized, under 1128(a)(1), to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. Considering the totality of the evidence, I find the 10-year exclusion within a reasonable range. |
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JUDGE | |
Carolyn Cozad Hughes Administrative Law Judge
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FOOTNOTES | |
1. The term "State health care program" includes a State's Medicaid program. Section 1128(h)(1) of the Act; 42 U.S.C. � 1320a-7(h)(1). | |