Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Dan Anderson, |
DATE: January 7, 2002 |
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The Inspector General.
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Docket No.C-00-363 Decision No. CR855 |
DECISION | |
DECISION I find that Dan Anderson, Petitioner, is subject to a
mandatory minimum period of exclusion of five years from participation
in Medicare, Medicaid, and all other federally funded health care programs
under section 1128 (a)(1) of the Social Security Act (Act). In addition,
I conclude that the Inspector General's (I.G.) determination to exclude
Petitioner for a period of 15 years is not unreasonable. BACKGROUND At all times relevant to this case, Petitioner was President
and Chief Executive Officer of Baptist Medical Center (Baptist), located
in Kansas City, Missouri. In July of 1998, Petitioner was indicted by
a federal grand jury, charging Petitioner, and others, with conspiracy
to commit kickback and bribery violations. The indictment alleged that
from approximately the fall of 1985 through January of 1995, Petitioner
in his capacity as President and Chief Executive Officer of Baptist, instructed
other Baptist employees to offer and pay bribes to Robert C. LaHue, M.D.
and Ronald L. LaHue, M.D. (LaHue brothers) in exchange for their referral
of Medicare patients to Baptist. In April of 1999, after a jury trial, Petitioner was convicted
of conspiracy (18 United States Code (U.S.C.) � 371) and illegal remuneration
and aiding and abetting (42 U.S.C. � 1320 (a) 7(b) (2) (A) and (B) and
18 U.S.C. � 2). In October of 1999, Petitioner was sentenced to 51 months
in jail and fined $75,000. By letter dated January 31, 2000, the Office of the Inspector
General for the Department of Health and Human Services (HHS), notified
Petitioner that he was being excluded from participation in Medicare,
Medicaid, and all other federal health care programs for a period of 15
years. The I.G. imposed this exclusion pursuant to section 1128 (a)(1)
of the Act, 42 U.S.C. � 1320a-7(a)(1), based on Petitioner's conviction
in the U.S. District Court, District of Kansas, of a criminal offense
related to the delivery of a health care item or service under the Medicare
program. Petitioner filed a request for hearing to appeal the decision
of the I.G. to exclude him. The case was assigned to me for hearing and
decision. I held an in-person hearing in Kansas City, Missouri on December
19 - 20, 2000, in which I heard the testimony of various witnesses. Petitioner
offered into evidence Petitioner's Exhibits 1 - 43 (P. Exs. 1 - 43). I
received into evidence Petitioners exhibits except for P. Exs. 1, 2, 9
- 11, 13 - 18, 22 - 25, 29 - 40, and 42 which were withdrawn and P. Ex.
41 which was not admitted. The I.G. offered into evidence I.G. Exhibits
1 - 19 (I.G. Exs. 1 - 19). I received into evidence I.G. Exs. 1-19, except
for I.G. Exs. 12 and 13 which were withdrawn, and I.G. Ex. 17 which was
not admitted. A Transcript (Tr.) of
the proceeding was made available to both parties. Petitioner
submitted a posthearing brief (P. Br.), and a reply brief (P. Rep. Br.).
The I.G. also submitted a posthearing brief (I.G. Br.), and a reply brief
(I.G. Rep Br.). ISSUES The issues in this case are: (1) whether the I.G. had
a basis to exclude Petitioner under section 1128(a)(1) of the Act; and
(2) whether a 15 year exclusion of Petitioner is unreasonable. APPLICABLE LAW Section 1128(a)(1) of the Act authorizes the Secretary of HHS to exclude from participation in any federal health care program (as defined in section 1128B (f) of the Act):
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 minimum period
of not less than five years. 42 Code of Federal Regulations (C.F.R.) � 1001.102(b)
list the factors that may be considered to be aggravating and a basis
for lengthening the minimum mandatory five-year period of exclusion. In
this case the I.G. relies on three of these factors: (1) the acts that
resulted in the conviction, or similar acts, were committed over a period
of one year or more; (2) the sentence imposed by the court included incarceration;
(3) the acts resulting in the conviction, or similar acts, resulted in
financial loss to a government program or to one or more entities of $1,500
or more. If there are aggravating factors present which justify
an exclusion longer than five years, certain mitigating factors under
42 C.F.R. � 1001.102(c) may be considered for reducing the period of exclusion.
However, the period of exclusion may not be mitigated to less than five
years. PETITIONER'S ARGUMENTS Petitioner maintains that the I.G. should have imposed
his exclusion pursuant to the permissive authority of section 1128(b)(7),
rather than the mandatory authority pursuant to section 1128(a)(1). Petitioner
also argues that the I.G. failed to establish the presence of aggravating
factors which justify the 15-year period of exclusion. Petitioner further
contends that he has established the presence of mitigating factors which
warrant a reduction of the period of the exclusion. FINDING OF FACTS AND CONCLUSIONS OF LAW I make findings of fact and conclusions of law (Findings)
to support my decision in this case. I set forth each finding below as
a separate numbered paragraph. I discuss my findings in the discussion
section below. 1. At all times relevant to this case, Petitioner was
President and Chief Executive Officer of Baptist Medical Center located
in Kansas City, Missouri. I.G. Ex. 5. 2. Petitioner caused Baptist employees to offer and pay
bribes to the Lahues brothers in exchange for their referral of Medicare
patients to Baptist from approximately 1985 through 1995. I.G. Ex. 5. 3. On April 5, 1999, in the United States District Court,
District of Kansas, a jury found Petitioner guilty of violating the Anti-Kickback
Statute, 42 U.S.C. �1320a-7b; section 1128B of the Act. I.G. Ex. 7.
4. By letter dated January 31, 2000, Petitioner was notified
by the I.G. that he was being excluded from participation in Medicare,
Medicaid, and all federal health care programs for a 15-year period pursuant
to section 1128(a)(1) and section 1128(c)(3)(B) of the Act. I.G. Ex. 1. 5. Under section 1128(a)(1) of the Act, the Secretary
of the Department of Health and Human Services (Secretary)is required
to exclude from participation in Medicare, Medicaid, and all federal health
care programs, as defined in section 1128B(f) of the Act, any individual
that has been convicted of a criminal offense related to the delivery
of a health care item or service under Medicare or under any State health
care program. 42 U.S.C. � 1320a-7(a)(1). 6. Petitioner was "convicted" of a criminal offense as
is defined in section 1128(i) of the Act. 7. Petitioner's criminal offense 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. 8. The I.G. must exclude Petitioner under the mandatory
exclusion provisions of section 1128(a) of the Act. 9. An exclusion imposed pursuant to 1128(a)(1) of the
Act must be for a minimum period of at least five years. See section
1128(c)(3)(B) of the Act; 42 C.F.R. � 1001.102(a). 10. The I.G. may increase the period of exclusion based
on the presence of aggravating factors found at 42 C.F.R. � 1001.102(b). 11. A finding of aggravating factors may support an exclusion
of more than five years. 42 C.F.R. � 1001.102(b). 12. The I.G. established by a preponderance of evidence
three aggravating factors under 42 C.F.R. �� 1001.102(b)(1), (2), and
(5). 13. The acts, or similar acts, that resulted in Petitioner's
conviction were committed over a period of one year or more. 42 C.F.R.
� 1001.102(b)(2); I.G. Ex. 5. 14. Petitioner was sentenced to 51 months' incarceration.
42 C.F.R. � 1001.102(b)(5); I.G. Ex. 7. 15. The acts, or similar acts, resulting in Petitioner's
conviction resulted in a loss to the Medicare program of more than $1,500.
42 C.F.R. � 1001.102(b)(1); I.G. Ex. 11. 16. Petitioner did not prove the existence of mitigating
factors. 17. The aggravating factors established by the I.G. proved
Petitioner to be untrustworthy. 18. Based on the aggravating factors in this case and
the lack of mitigating factors, the I.G.'s exclusion of Petitioner for
a period of 15 years is not unreasonable. DISCUSSION The I.G. Properly excluded Petitioner under
section 1128(a)(1) of the Act. Petitioner does not dispute that the I.G. has the authority
to exclude him from Medicare, Medicaid, and all federal health care programs.
However, the Petitioner does dispute the I.G.'s position that Petitioner
should be excluded under the mandatory provision of section 1128(a)(1).
Petitioner maintains that the underlying criminal conviction is one that
is subject to a permissive exclusion pursuant to section 1128(b)(7), under
which the I.G. may determine that no exclusion period is necessary, or
impose an exclusion of at least three years. Petitioner argues that exclusions
for persons convicted of kickback related crimes must be discretionary
because section 1128(b)(7) of the Act specifically mentions "kickbacks"
as one of the prohibited activities. Petitioner further cites cases to
support its argument that the I.G. is obliged to narrowly construe statues
and follow directives which are narrowly drawn to implicate particular
conduct and actions. P. Rep. Br. at 4. Finally, while Petitioner first
admits that the verdict against him constitutes a "conviction" for purposes
of program exclusion under the Act, and that the I.G. has the authority
to exclude him, he then, advances arguments which collaterally attack
certain aspects of the underlying conviction in the case. Violations of section 1128B of the Act are subject to
both criminal and administrative sanctions by the government. The criminal
process involves sanctions that are associated with criminal convictions,
such as incarceration and probation. Under the administrative process
an individual is subject to a permissive or mandatory exclusion. The permissive
exclusion authority of section 1128(b)(7) is available where an individual
or entity has not been convicted of a crime. However, if an individual
is convicted under section 1128(a)(1) an exclusion is mandatory.
The plain wording of section 1128(a)(1) which states that
the Secretary shall exclude an individual who has been convicted
of a criminal offense unequivocally obligates the Secretary to exclude
an individual under the mandatory provision of the Act when a program-related
conviction is present. The I.G. cites a long line of DAB cases which support
its proposition that the Secretary must proceed under the Mandatory exclusion
authorities of section 1128(a)(1) of the Act if an individual has been
convicted of a program related offense. More to the point, the I.G. cites
cases in which the DAB has uniformly held that criminal convictions predicated
upon violations of the Anti-Kickback Statute justify mandatory exclusion
pursuant to section 1128(a)(1) of the Act. See Jitrendra C.
Shah, M.D., DAB CR720 (2000); Farhad Mohebban, M.D., DAB CR686
(2000); Muhammad R. Chaudhry, DAB CR 326(1994); Asadolla Amrollahifa,
Ph.D, DAB CR238 (1992); Niranjana B. Parikh, M.D. et al. DAB
No. 1334(1992); Boris Lipovsky, M.D., DAB CR208 (1992); aff'd,
DAB No. 1363 (1992); Arthur V. Brown, M.D., DAB CR226 (1992); John
Tolentino, M.D., DAB CR180 (1992). Petitioner's arguments are not persuasive and lack substantive
support in the Act, the legislative history, and the case law. Thus, I
find that Petitioner is subject to the mandatory exclusion provision of
section 1128(a)(1) of the Act. The I.G. has established three aggravating
factors which justify the exclusion imposed in this case. The Secretary has published regulations under section
42 C.F.R. Part 1001 which govern the length of exclusions that are imposed
pursuant to section 1128 of the Act. The regulations are found at 42 C.F.R.
� 1001.102. An exclusion pursuant to section 1128(a)(1) of the act must
be for a minimum period of five years. See section 1128 (c)(3)(B)
of the Act; 42 C.F.R. �1001.102(a). The I.G. may extend the minimum period
of exclusion if it determines that specific aggravating factors are present.
See 42 C.F.R. � 1001.102(b). Section 1001.102(b) identifies aggravating
factors which may be used, if present in a case, as a basis to lengthen
an exclusion beyond the five-year minimum period. Section 1001.102(c)
provides that mitigating factors may be considered, if present in a case,
to offset any aggravating factors that are established. The I.G. relied on the presence of three aggravating factors
to lengthen Petitioner's period of exclusion to 15 years:
The I.G. has established that Petitioner's sentence in the criminal case included a period of incarceration. Petitioner was found guilty in Federal Court of conspiracy (Count 1) and violating the Anti-Kickback Statute (Count 3). Petitioner engaged in a conspiracy to solicit, offer, and pay bribes in return for referral of patients. I.G. Ex. 5. The record shows the Petitioner was sentenced to 51 months incarceration. He was also sentenced to three years' supervised probation and ordered to pay a $75,000 fine and a $100 assessment. I.G. Ex. 7. Petitioner's untrustworthiness is demonstrated by the fact that he was sentenced to incarceration. See Leonard S. Dino, R.Ph., DAB CR260(1993).
The evidence presented by the I.G. has established that
the acts which resulted in Petitioner's criminal conviction were committed
over a period of one year or more. The record shows that Petitioner's
unlawful acts spanned a lengthy period of just over ten years. The acts
in the two counts of which Petitioner was found guilty occurred from in
or about the fall of 1985 to in or about January 1995. I.G. Ex. 5. Furthermore,
the evidence shows that Petitioner took steps to prolong the kickback
scheme and included other employees and representatives in the scheme.
I.G. Ex 8. The weight of the evidence establishes that the I.G. has sustained
its burden in proving this aggravating factor.
The primary and most hotly contested matter in this case relates to the issue of whether or not Petitioner's conduct resulted in a financial loss to the government of $1,500 or more. The I.G. maintains that "consulting fees" paid by Baptist
(at the direction of the Petitioner) to the Lahue brothers were in fact
bribes paid for referring patients to Baptist in violation of section
1128B of the Act and 18 U.S.C. � 2. I.G. Ex. 5. The I.G. contends, that
these "consulting fees" were improperly included in Baptist's Medicare
cost reports and paid by Medicare, thereby resulting in a loss to the
government. Petitioner argues that the I.G. incorrectly determined
that Petitioner's unlawful activity caused $65,716 of loss to the Medicare
program, because: (1) the I.G. failed to consider benefits and savings
to the Medicare program as a result of the Baptist program and (2) the
I.G. incorrectly relied on the criminal trial court's loss findings.
At the hearing, the I.G. called as its only witness Jimmie
Frisbee. Mr. Frisbee is a Certified Public Accountant and lead accountant
in the Division of Health Plans and Providers in the Kansas City Regional
Office of the Centers for Medicare and Medicaid Services (CMS). Contrary
to Petitioner's assertion, I qualified Mr. Frisbee, at the hearing, as
an expert in the areas of Medicare cost report preparation, Medicare audit
process, and the process of calculating Medicare over payments and under
payments through the fiscal intermediary. Mr. Frisbee testified regarding the details of his analysis
and calculation of the damages to the government in this case, which he
described as a "conservative" approach. Tr. 151-152. He testified that
the amount of loss to the government was determined by totaling the "consulting
fees" claimed by Baptist for Medicare reimbursement, and then multiplying
that figure by the average percentage of eligible Medicare reimbursement,
for the years 1985 through 1995. I.G. Ex. 15. Mr. Frisbee described the
total loss of $65,716, as "inappropriate payments made by Medicare that
took funds away from needed services, that a hospital would normally render,
and these are costs that Medicare would not recognize." Tr. 153. In addition, the I.G. argues that Judge Lungstrum, the
presiding judge in the Federal criminal trial against the Petitioner,
found that "[t]he evidence at trial revealed that the only victim in this
case, the federal government, suffered at most $65,716 in losses in connection
with the scheme at Baptist." I.G. Ex. 11 at 20. The Court made a specific
finding that there was a loss to the government where "the amount of bribes
or consulting fees" were included in Baptist's Medicare Cost Reports and
where Baptist received reimbursement from Medicare
for those bribes. Thus, the Court in the criminal case specifically determined
there was a loss to the Medicare program of, at most, $65,716. That determination
was based on Mr. Frisbie's testimony at Petitioner's criminal trial. I.G.
Ex 11 at 19 - 20; P. Ex. 13 at 6764 - 6779. Although I ultimately give weight to Judge Lungstrum's
findings at the criminal trial regarding loss to the government, I am
not bound by the trial courts determination. Petitioner is entitled to
a de novo hearing and an independent decision by an administrative law
judge. Section 205 (b) of the Act. I make my findings based on a careful
and detached review of all the evidence concerning financial loss to the
government. Petitioner correctly points out that because Baptist paid
a 17.5 million dollar settlement, Judge Lungstrum ultimately found that
no restitution should be paid because, after the offset, the government
suffered no harm. It is important to note however, that Judge Lungstrum's
finding that the government "suffered no harm" was in the context of making
a restitution determination. Judge Lungstrum specifically considered the
fact that Baptist had paid a 17.5 million dollar settlement in deciding
not to order restitution in the case. Generally, restitution orders require
the court to consider any benefits bestowed by the defendants. However,
in the context of an administrative civil remedy determination no such
consideration is required. Indeed, 42 C.F.R. � 1001.102 (b)(1) reads in part:
Mr. Frisbee's explanation of the loss to the government
of $65,716 is reasonable and fair. Section 1001.102 of 42 C.F.R. does
not require the I.G. to make an independent assessment of any potential
benefit bestowed on the government by Petitioner when determining the
dollar value of the loss to a government program. The regulations merely
require the I.G. to make a determination of the loss based on the Petitioner's
unlawful activities. Based on the forgoing, I find that the I.G. has established
by a preponderance of the evidence that Petitioner is responsible for
more than a $1,500 financial loss to the Medicare program. Petitioner argues that the mere fact that these factors
are present does not justify a 15-year exclusion. Petitioner maintains
that the I.G. has failed to provide a breakdown of Petitioner's 15-year
exclusion to indicate specifically how much time was added as a result
of each aggravating factor. The purpose of every exclusion under section 1128 is to
protect the integrity of federally funded health care programs, and the
health and safety of beneficiaries and recipients of those programs from
an untrustworthy individual or entity. An exclusion will be found to be
reasonable so long as it comports with this remedial purpose. An exclusion
will be found to be unreasonably punitive if an individual or entity is
excluded for longer than is necessary to satisfy the remedial purpose
of protection. While it is true that the I.G. did not indicate how each
factor was weighted in arriving at the 15-year exclusion period, the regulations
do not require it to do so. The I.G. has clearly demonstrated that she
considered those factors which the regulations specifically authorize
her to consider. Petitioner also argues that the period of time in which
Petitioner's acts occurred does not provide the I.G. with a sufficient
basis for the imposition of a 15-year exclusion. Through selective citation
to certain portions of the Federal Court's Memorandum and Order relative
to Petitioner's motion for acquittal, Petitioner maintains that the acts
for which he was convicted did not span a period of over ten years. A
close and full reading of the cited exhibits does not support Petitioner's
assertions but instead bolsters the position of the I.G. While Petitioner
argues that Petitioner's illegal acts did not span the lengthy period
asserted by the I.G., he does not offer any evidence as to the proper
time period the I.G. should have considered to determine a lesser period
of exclusion. It should be noted that Petitioner has advanced arguments
which, in effect, are a collateral attack on the criminal conviction in
this case. Petitioner admits on the one hand that he has been convicted
but then argues that the conviction "does not accurately reflect the facts
of his case . . . ." P. Br. at 7. Petitioner argues that while he is not
seeking to relitigate the facts of the criminal case, he maintains that
I am obligated to take into account all of the facts and circumstances
considered by the I.G. in support of the exclusion determination at the
time it was made. P. Rep. Br. at 9. Petitioner then argues that the I.G.
should have considered how the evidence unfolded at trial. P. Br. at 7.
Additionally, Petitioner submitted a copy of the transcript of his testimony
at the hearing to advance the argument that he was not responsible for
ensuring the legality of the consulting agreements and that he relied
heavily on the advice of attorneys because the Medicare
law was so uncertain. P. Br. at 18, 19. Petitioner also points out that
the two attorneys upon which advice he relied upon were acquitted. Therefore,
he argues, his attorneys legal advice should be considered in evaluating
his case with respect to the length of time Petitioner engaged in unlawful
conduct. Despite Petitioners assertions to the contrary, he is
indeed attempting to relitigate the facts of the criminal case in the
proceedings before me. The regulations at 42 C.F.R. � 1001.2007(d) clearly
prohibit Petitioner from collaterally attacking the substantive or procedural
underlying determinations in his criminal conviction in this forum. Further,
the DAB has held that the I.G. and the Administrative Law Judge are not
permitted to look beyond the fact of conviction. Rickie Lewis,
DAB CR730 (2001); Paul R. Scollo, D.P.M., DAB No. 1498 (1994);
Ernest Valle, DAB CR309 (1994); Peter J. Edmondson, DAB
No. 330 (1992). Thus, it is clear that I am prohibited from considering
how the evidence unfolded at trial, or that Petitioner relied upon the
advice of counsel who were subsequently acquitted of wrongdoing. The fact
remains that Petitioner was convicted of a criminal offense for the purpose
of program exclusion under the Act. Petitioner's arguments which collaterally
attack the substantive and procedural determinations made in the criminal
case are irrelevant and are given no evidentiary weight in this decision. Mitigating factors Petitioner contends that he has established the presence
of mitigating factors. Petitioner presented evidence regarding what he
considers to be valuable services that Baptist and the Lahue brothers
provided to the frail elderly nursing home population. Petitioner also
maintained that the monetary benefit of these services offset any damages
to the Medicare program. Petitioner called as witnesses, Dr. Leonard Hock,
Dr. Nevada Lee, Joseph Rosenbaum, and Keith Eugone to support his assertions.
The witnesses testified essentially that Baptist developed the premiere
geriatric treatment center in Kansas City and that the program reduced
patient admissions, which resulted in Medicare cost savings. Dr. Lee testified
that the value of the services provided were worth well over one million
dollars. Tr. 317. In addition, Petitioner also submitted many letters
from colleagues, associates, and friends, attesting to his professional
competence and trustworthiness. The I.G. objected to the presentation of this evidence
asserting that such evidence was irrelevant and not within the enumerated
factors in the regulations which relate to proving mitigating factors.
While I specifically noted at the hearing that I am not authorized to
go beyond the enumerated factors to determine if mitigating factors exist,
I allowed the evidence to be presented at the hearing and through exhibits
during the trial so that I could determine if the
evidence was relevant to one or more of the mitigating factors. After
a review of all of the evidence in this case, I have determined that the
regulations do not allow me to consider such evidence. Mitigating factors
in 1128(a)(1) mandatory exclusion cases are defined to include only the
following:
42 C.F.R. � 1001.102(c)(1) - (3). The regulations make it clear that only those
factors that it identifies as mitigating may be considered, if present
in a case, to offset any aggravating factors that are established. The
mitigating factors operate as rules of evidence in such a case. Evidence
which does not relate to an identified mitigating factor is irrelevant
to determining the length of an exclusion and may not be considered. The
excluded party bears the burden of alleging and proving the presence of
any mitigating factor. The evidence that Petitioner has introduced regarding
program and financial benefits to patients and the Medicare Program are
not mitigating factors under 42 C.F.R. � 1001.102(c)(1) - (3), and therefore
I may not consider them. The I.G.'s exclusion of Petitioner for fifteen
years is within a reasonable range. Although 42 C.F.R � 1001.102 establishes the sole factors
which may be considered in deciding whether the length of an exclusion
is reasonable, it does not prescribe the weight which is to be given to
any factor. The regulation contains no formula prescribing any exclusion
length beyond the five-year minimum period based on the presence of aggravating
factors or the absence of mitigating factors. The regulation merely identifies
the factors which may be used to lengthen an exclusion beyond the minimum
period. I must look to the purpose of the Act in order to decide
what is the reasonable length of an exclusion where aggravating or mitigating
factors are present in the absence of any statement in the regulation
as to how much weight must be given to an aggravating or mitigating factor.
Section 1128 of the Act is remedial. Its purpose is not to punish the
excluded individual but to protect federally funded health care programs,
and the beneficiaries and recipients of program funds, from an individual
whose conduct establishes him or her not to be trustworthy. In assessing
the length of any exclusion that is imposed under section 1128, the ultimate
issue that must be addressed is: how long of an exclusion is reasonably
necessary to protect programs and their beneficiaries and recipients from
an untrustworthy individual? Petitioner argues that the I.G.'s exclusion letter of
January 31, 2000, indicates that the I.G.'s decision to exclude the Petitioner
for 15 years was based on the I.G.'s assertion that Petitioner's conduct
caused a loss to the Medicare program exceeding 1.3 million dollars. I.G.
Ex. 1. Petitioner points out that on the eve of the hearing, the I.G.
revised its proof of loss to $65,517 and that fact should render the 15-year
exclusion period unreasonable because the I.G. did not concomitantly reduce
the exclusionary period. Pet. Br. at 41. There is no prohibition in the regulations which prevent
the I.G. from modifying what it intends to prove at a hearing and there
is no requirement that a reduction in the alleged amount of financial
loss must result in a concomitant reduction in the exclusion period. At
the hearing the I.G. chose to prove financial loss to the government of
$65,716 rather than 1.3 million dollars it stated in it's January 31,
2000 exclusion letter. The I.G. met its burden and
proved by a preponderance of the evidence that there was indeed a financial
loss of more than $1,500 in this case. The amount of loss is only one
of the aggravating factors that I must consider in determining whether
the period of exclusion imposed by the I.G. is within a reasonable range. An individual may not be excluded arbitrarily for a period
of more than five years simply because aggravating factors are present.
The evidence that pertains to those factors must be weighed in order to
establish the degree of untrustworthiness that is manifested by the excluded
individual. An exclusion that is not based on what the evidence shows
about the trustworthiness of the excluded individual may be arbitrary
and unreasonably punitive. The aggravating factors established by the I.G. in this
case prove Petitioner to be an untrustworthy individual. Petitioner's
lack of trustworthiness is established by the fact that he was a primary
participate in a bribery scheme which lasted over ten years, resulting
in a loss to the Medicare program of $65,716. His illegal actions were
recurrent and deliberate, not random and impulsive. Petitioner was sentenced
to 51 months incarceration after a full jury trial, suggesting that the
sentencing judge found him to be a highly culpable individual. I have weighed the evidence and the regulatory factors in this case and find that the I.G. has proven that Petitioner is not a trustworthy individual. The fact that the I.G. made a tactical trial decision to reduce the amount of financial loss it chose to prove in this administrative action does not render Petitioner a more trustworthy individual. All of the aggravating factors, including a financial loss to the government of more than $1,500 and the absence of any mitigating factors lead me to conclude that Petitioner is not a trustworthy individual. Based on the evidence presented in this case I find that the 15-year exclusion that the I.G. has determined to impose in this case is within a reasonable range and is not excessive. I therefore affirm the I.G.'s exclusion of the Petitioner for a period of 15 years. |
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JUDGE | |
Alfonso J. Montano Administrative Law Judge
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