Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
John N. Crawford, Jr., M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: April 9, 1992
Docket No. C-364
Decision No. 1324
FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE
DECISION
John N. Crawford, Jr., M.D. (Petitioner) requested review of an
October
18, 1991, decision by Administrative Law Judge (ALJ) Steven T.
Kessel
affirming Petitioner's exclusion from participation in Medicare
and
Medicaid for six years. See John N. Crawford, Jr., M.D., DAB
CR160
(1991) (ALJ Decision).
Petitioner's exclusion was based on section 1128(a)(1) of the
Social
Security Act (Act) (42 U.S.C. .1320a-7). Section 1128(a)(1)
mandates
exclusion from Medicare and Medicaid for any individual or
entity
"convicted of a criminal offense related to the delivery of an item
or
service under title XVIII or under any State health care program."
1/
Section 1128(c)(3)(B) establishes that "[i]n the case of an
exclusion
under subsection (a), the minimum period of exclusion shall be not
less
than five years . . . ."
Based on the following analysis, we affirm the ALJ Decision.
BACKGROUND
Generally, this background summarizes the findings of fact and
conclusions
of law (FFCLs) upon which the ALJ based his decision. See
ALJ Decision
at 2-4. The following facts are undisputed. Petitioner's
medical
practice included treating patients in their homes. In April
1987 a
United States grand jury indicted Petitioner on 32 counts of
Medicare fraud
(18 U.S.C. .1001) and 17 counts of mail fraud (18 U.S.C.
.1341). In
February 1990, Petitioner was convicted on 20 counts of
Medicare fraud and 5
counts of mail fraud. Specifically, Petitioner was
convicted of
knowingly submitting for Medicare reimbursement claim forms
containing false
statements and representations concerning claimed
medical services.
Additionally, Petitioner was convicted of knowingly
causing Medicare
reimbursement checks to be delivered to him by mail as
part of his scheme to
unlawfully obtain Medicare reimbursement.
Beginning February 15, 1990,
Petitioner was placed on probation for five
years and ordered not to practice
any medicine involving Medicare or
Medicaid payments during that time. 2/
On March 22, 1991, the Inspector General notified Petitioner of
his
exclusion from Medicare and Medicaid, for six years, based on
his
conviction of a program- related crime as defined in section 1128(i)
of
the Act (42 U.S.C. .1320a-7(a)(1)). According to the
Inspector
General's notice, the action was effective 20 days from the date of
the
letter. Petitioner timely appealed his exclusion to the ALJ.
The ALJ Decision affirming Petitioner's exclusion was based on 24
FFCLs.
Generally, the ALJ found that Petitioner's fraud included
knowingly
presenting Medicare claims for services never provided to
patients. The
ALJ determined that these claims occurred over a two-year
period and
resulted in a substantial pecuniary loss to Medicare.
Additionally, the
ALJ found that Petitioner's denial of wrongdoing and
refusal to accept
responsibility for his conduct were not credible and
established that he
was not trustworthy. Consequently, a six year
exclusion was needed to
protect federally-funded health care programs and
their recipients and
beneficiaries from future harm by Petitioner. ALJ
Decision at 2-4.
The ALJ concluded that he did not have the authority to address
the
constitutional issues raised by Petitioner in his appeal -- whether
the
exclusion violated Petitioner's right against being placed in
double
jeopardy and was an ex post facto application of the Act. Id. at
4.
The ALJ did determine that he had the authority to rule on
factual
premises and contentions of the parties, and to interpret
laws,
regulations, and applicable court decisions. The ALJ then
concluded
that Petitioner's premises on the above constitutional arguments
were
faulty as they both dealt with criminal and punitive issues while
the
exclusion was solely a remedial civil penalty.
Petitioner's Exceptions
Petitioner has raised, on appeal, basically the same issues raised
before
the ALJ:
1. Whether the mandatory exclusion is a penal rather than remedial
remedy
and thus: (a) violates the double jeopardy clause of the United
States
Constitution; and (b) is an unconstitutional ex post facto
application of the
Act; and
2. Whether the six year period of exclusion is reasonable given
the
evidence in the case.
Although Petitioner did not specifically identify them, we conclude
from
his arguments that he took exception to the following FFCLs:
13. Petitioner's denial that he ever presented false
Medicare
reimbursement claims is not credible.
14. Petitioner refuses to accept any responsibility for his
wrongful
conduct.
15. Petitioner's fraud against the Medicare program and his refusal
to
acknowledge responsibility for such fraud establishes that he is not
a
trustworthy provider of health care.
16. The personal support and trust placed in Petitioner by friends
and
associates does not establish that Petitioner is a trustworthy
provider
of health care.
22. An exclusion of six years is needed in this case to
protect
federally-funded health care programs and their beneficiaries
and
recipients from the commission of future harm by Petitioner.
23. I do not have authority to decide whether the exclusion imposed
and
directed against Petitioner by the I.G. violates
Petitioner's
constitutional right against being placed in double
jeopardy.
24. I do not have authority to decide whether the exclusion imposed
and
directed against Petitioner by the I.G. is an unconstitutional ex
post
facto application of the Act.
ALJ Decision at 3-4. (Citations omitted.)
In support of his double jeopardy argument, Petitioner asserted that
the
imposition of the six years mandatory exclusion by the Inspector
General
is a punitive application of the Act, inasmuch as he has already
been
punished for his crimes, among other things, by the five year
probation
imposed by the judge in the criminal proceeding. As the
criminal case
probation and the Inspector General's exclusion overlap by
approximately
four years, Petitioner argued that there has been a second
punishment
and the resulting double jeopardy violates the Fifth Amendment of
the
United States Constitution.
Petitioner's ex post facto argument is also rooted in the assumption
that
the mandatory exclusion rises to the level of a criminal rather
than civil
remedy. Prior to August 18, 1987, section 1128 of the Act
provided for
mandatory exclusion in the case of a conviction for a
program-related
offense, but the period of exclusion was determined by
the Secretary.
However, the Act was amended effective August 18, 1987,
to provide a
mandatory minimum period of exclusion of five years for
convictions of
program-related crimes under section 1128(a)(1) (1987
Amendments). 3/
The essence of Petitioner's exception was that the 1987
Amendments
significantly altered the provisions of the statute by
enhancing the penalty
from a discretionary period to be determined by
the Secretary, to a mandatory
period of at least five years. Petitioner
asserted that imposition of
the mandatory exclusion statute, as amended,
for offenses committed prior to
its enactment violates the ex post facto
prohibition of Article I, section 10
of the United States Constitution.
Petitioner also argued that in refusing to reduce the six year
exclusion,
the ALJ failed to consider mitigating evidence submitted to
establish
Petitioner's trustworthiness. This evidence consisted of
hundreds of
letters and petitions in his support, and the fact that he
has had no alleged
violations between 1986 and 1990. Petitioner also
argued that the false
claims were the result of inaccurate and
incomplete records rather than
intentional wrongdoing.
ANALYSIS
Our standard of review on disputed issues of fact is "whether the
ALJ's
decision is supported by substantial evidence" and on disputed
legal
issues, whether "the ALJ's decision was "erroneous." 4/ As
explained
below, we conclude that the ALJ's decision is not erroneous and
is
supported by substantial evidence.
1. Petitioner's exclusion was remedial and not
criminal, and,
therefore, neither the double jeopardy clause nor the ex post
facto
clause of the United States Constitution is applicable.
The ALJ properly determined that he did not have the authority to
decide
constitutional issues. Nevertheless, he considered arguments
regarding
the applicability of the 1987 Amendments in deciding whether
the
mandatory exclusion was appropriate and reasonable. In doing so,
the
ALJ ruled on the factual premises and contentions of the parties
and
interpreted laws, regulations, and applicable court decisions.
See
Betsy Chua, M.D. and Betsy Chua, M.D., S.C., DAB 1204, at 5 (1991);
Jack
W. Green, DAB 1078, at 17 (1989), aff'd, Greene v. Sullivan, 731
F.
Supp. 835 (E.D. Tenn. 1990) (Greene I).
Here, it is uncontested that Petitioner was "convicted" of a
criminal
offense within the meaning of section 1128(a) of the Act, and that
the
offense was "related to the delivery of an item or service" under
the
Medicare program within the meaning of section 1128(a)(1) of the
Act.
Under section 1128(c)(3)(B) of the Act the Secretary must impose
a
five-year minimum period of exclusion. See Greene I, 731 F.Supp.
at
837-38; Napoleon S. Maminta, M.D., DAB 1135, at 14 (1990).
The
exclusion is statutory and the ALJ can not decrease that minimum
time
period. See Samuel W. Chang, DAB 1198, at 9 (1990). A. Double
Jeopardy
With respect to the double jeopardy issue, Petitioner argued that
if
either the purpose or effect of the exclusion is punitive,
it
constitutes a violation of the double jeopardy clause under U.S.
v.
Halper, 490 U.S. 435 (1985) (Halper). He also had asserted in his
Post
Hearing Brief that he had already been punished in the criminal
case,
and the effect of the civil penalty is so extreme as to constitute
a
second punishment.
On February 15, 1990, Petitioner was sentenced in the criminal
proceeding
to six months of work release, 500 hours community service,
restitution of
$6427, a peer review regarding ability to practice, and a
five year probation
during which time he was prohibited from practicing
medicine involving
Medicare and Medicaid Payments. This latter
punishment, he argued, was
duplicated by the six year exclusion imposed
by the Inspector General.
He asserted that the Inspector General
introduced no evidence to show that
the latter exclusion was remedial
and related to protecting the government's
interest, but was merely
punitive. Relying on Halper, he argued that
the exclusion cannot be
considered solely remedial but must be considered
punishment or a
deterrent against future acts. Petitioner also stated
that he was in
conformance with the Medicare program between 1986 and 1990,
and
therefore, the exclusion cannot serve a remedial purpose.
The impact of the double jeopardy clause on civil and criminal
multiple
"punishments" was extensively reviewed in Halper. There, the
Supreme
Court recognized that in the rare case, a civil penalty may be
so
extreme and so disproportionate to the Government's actual damages
and
expenses as to constitute prohibited punishment." Id. at
447-51. The
Halper Court specifically recognized that the question of
double
jeopardy was not dependent solely on whether a penalty was
characterized
as "civil" or "criminal." Rather, the focus was on the
purpose and
effect of the penalties on the particular case.
The remedial nature of the mandatory exclusion was examined in
Manocchio
v. Sullivan, 768 F. Supp. 814 (S.D. Fla. 1991), where the Court
applied
the Supreme Court's two-prong test. The first prong is a
determination
of Congress' intent. The Court found that because
specific sections of
the 1987 Amendments were labeled "criminal," others not
so entitled,
such as the mandatory exclusion, were remedial. Second,
the Court
examined the purpose and effect of the exclusion period and found
its
intent, as expressed by Congress, was clearly remedial and intended
"(i)
to protect the Medicare program from fraud and abuse, and (ii)
to
protect citizens who rely on the integrity of the participants in
the
program." 5/ The Court held that there was sufficient public
interest
in excluding convicted providers that the exclusion did not
violate
either the double jeopardy or the ex post facto clauses.
Therefore, as
the provider failed to establish that there was no rational
relationship
between the nonpunitive interests and the exclusion period, his
appeal
must fail. Id. at 817.
The remedial nature of the 1987 Amendments was also considered in
Greene
v. Sullivan, 731 F. Supp. 838, 840 (E.D. Tenn. 1990 (Greene II).
6/
There, a District Court held the double jeopardy arguments of
Halper
inapplicable to the case of a pharmacist who had been convicted
for
having filed a false report and as a result had received a
mandatory
five year exclusion. That Court particularly noted the
agency's
argument that in Greene II, as opposed to Halper, the government was
not
seeking any monetary recovery. Rather, as in the instant case,
the
government sought to protect the Medicare and Medicaid programs
by
excluding persons convicted of defrauding them. These goals, the
Court
declared are "clearly remedial and include protecting
beneficiaries,
maintaining program integrity, fostering public confidence in
the
program, etc." 731 F. Supp. at 840. Thus, the exclusion
remedy is more
analogous to the revocation of a professional license for
misconduct
than it is punitive. Therefore, there is no double
jeopardy. 731 F.
Supp. at 840; Dewayne Franzen, DAB 1165, at 11-12
(1990).
Clearly, Petitioner has not here established that his six year
exclusion
presents one of those rare Halper cases in which the civil penalty
is
extreme and bears no rational relation to the remedial goals.
The
primary purpose of this exclusion is not to punish the Petitioner but
to
protect the programs, beneficiaries, and recipients from
future
misconduct by a provider who has proved himself untrustworthy.
See
Manocchio v. Sullivan, 768 F. Supp. at 817; ALJ Decision at 7.
Moreover, the court-imposed restrictions on Petitioner's practice will,
in
large part, run concurrently with the six year exclusion, although
the
exclusion will cover a longer period of time and may
function
differently. For example, an individual excluded under section
1128
must apply to be readmitted following the completion of the
exclusion
period and is not guaranteed readmission. Section 1128(g) of
the Act.
In any event, the thrust of the criminal sentence as a whole
is
apparently to punish and rehabilitate, whereas the thrust of
the
exclusion is clearly remedial in that it attempts to protect health
care
programs potentially at risk from Petitioner's actions.
The fact that Petitioner did not commit any further fraud during
the
course of the criminal and civil proceedings does not outweigh
the
conduct for which he was convicted nor the possibility of
future
problems. As noted, the intent of the exclusion is not so much
to cure
the provider but to protect the program and its beneficiaries.
B. Ex Post Facto
Petitioner's next argument is that the exclusion is an unconstitutional
ex
post facto application of the Act. Article I, Section 10 of
the
Constitution of the United States prohibits Congress from enacting
any
law which imposes a punishment for an act which was not punishable
at
the time it was committed, or imposes additional punishment to that
then
prescribed. Petitioner argued that because his conviction
was
predicated on claims submitted in 1986 or prior years, application
of
the 1987 Amendments' mandatory exclusion -- as opposed to the
prior
discretionary exclusion -- is an ex post facto application of the
Act.
This, he avers is a substantive change which alters a substantive
right
and has the effect of making the civil remedy a punishment.
We have previously considered and rejected this argument in Betsy
Chua,
M.D., at 6-7. We noted there, as did the ALJ Decision here, that
it is
well-established that the ex post facto clause forbids penal
legislation
which retroactively imposes or increases criminal
punishment.
Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952); DAB 1204 at
7; ALJ
Decision at 7. As discussed previously, however, it is
equally
well-established that section 1128(a)(1) is a civil remedies law in
its
language, intent, and application. 7/ Petitioner has not
demonstrated
otherwise, nor has he, in either of his appeals, given any
examples of
the ex post facto clause applying to a civil remedies statute.
8/
Accordingly, we affirm and adopt FFCL Nos. 23 and 24.
Petitioner's
constitutional argument is incorrect and not available in
these
circumstances.
2. The six year exclusion is supported by
substantial evidence and
is correct under the law.
Petitioner excepted to those portions of the ALJ Decision which
found
that the evidence established Petitioner to be highly
untrustworthy.
See FFCL Nos. 13-16 and 22. He also argued that the ALJ
failed to
consider his proferred mitigating circumstances. This,
Petitioner
apparently believed, led to the refusal of the ALJ to reduce the
six
year exclusion. 9/
The ALJ correctly concluded that there is no basis for finding that
the
six year exclusion was disproportionate. The first mandatory five
years
reflects the seriousness with which Congress viewed these offenses.
10/
In reviewing the Inspector General's decision to add the
additional
year, the ALJ provided Petitioner with a hearing and a de
novo
determination regarding the appropriateness of the period. He was
able,
during the hearing, to observe the demeanor of Petitioner and
other
witnesses and to evaluate their credibility. In contrast, as
previously
noted, our standard of review is limited to whether the decision
was
legally erroneous or unsupported by substantial evidence.
The ALJ clearly did not err in basing his decision regarding
the
reasonableness of the length of the exclusion on whether the
Inspector
General's determination was extreme or excessive. In doing
so, the ALJ
applied the regulations adopted by the Secretary for determining
the
reasonableness of the length of a discretionary exclusion.
These
regulations require the Inspector General to consider any
mitigating
circumstances and to balance them against other facts bearing on
the
nature and seriousness of the program violations. See 45
C.F.R.
.1001.125(b)(1)-(7). 11/
The ALJ concluded that the evidence supports the finding that
the
Petitioner is "a highly untrustworthy health care provider."
ALJ
Decision at 9. He was convicted of 20 counts of Medicare
fraud,
involving numerous false claims for reimbursement for items or
services
which he never provided to elderly Medicare beneficiaries.
This fraud
continued for over two years and involved thousands of dollars of
trust
fund monies. Id.
In comparison, Petitioner put forth three arguments as
mitigating
circumstances. First, he stated at the trial, the hearing,
and in this
appeal that the false claims were the result of inaccurate
and
incomplete records rather than intentional wrongdoing.
Second,
Petitioner requested consideration of many statements and petitions
from
third parties attesting to his character and honesty.
Lastly,
Petitioner argued that he continued to participate in the
Medicare
program from 1986 through 1990 while under the scrutiny of the
Inspector
General, and no instances of additional false claims were
found. Thus,
Petitioner argued, the remedial nature of the exclusion is
no longer
necessary because he has brought his practice into conformance.
We conclude, however, that the ALJ's findings, with respect to
the
trustworthiness of Petitioner and the appropriateness of the six
year
exclusion, are correct and supported by substantial
evidence.
Petitioner was convicted of submitting bills for services he did
not
perform. Congress specifically amended section 1128 to
require
excluding such individuals from participating in Medicare and
Medicaid
not only to protect program beneficiaries but to protect the
program
itself. See Napoleon S. Maminta, DAB 1135 at 12-15 (1990)
(Maminta).
The Inspector General has imposed much more severe exclusions than
the
addition of one year to Petitioner's mandatory five. For example,
in
Maminta, we affirmed the ten year exclusion of a provider for
conviction
of converting one Medicare reimbursement check payable to a third
party.
There, the Inspector General determined that the conversion undercut
the
public's perception of the honesty and integrity of other providers
to
an even greater extent than a "simple false billing incident." Id.
at
15-16.
But what we have here is not a simple false billing incident
but
systematic fraudulent behavior over more than two years.
Petitioner's
argument regarding his poor recordkeeping, even taken at face
value,
does not explain away the unequivocal testimony of several
Medicare
beneficiaries whom Petitioner falsely claimed to have treated.
See FFCL
No. 10. Petitioner's response to this testimony was to allege,
without
evidence or proof, that the beneficiaries were incompetent,
suffering
from mental illness, forgetful, or intimidated into making
false
statements. The ALJ found, and we agree, that the Petitioner's
many
claims for services which he never performed and his
unsubstantiated
attempts to blame his poor and elderly patients for his own
malfeasence
are unpersuasive and demonstrate a lack of trustworthiness.
ALJ
Decision at 11.
With respect to the letters and petitions, we also agree with the ALJ
that
they all commented on Petitioner's skills as a physician or
declared their
personal belief in his honesty and good character. As
such, the ALJ was
not erroneous in finding that, as none of the
declarents professed knowledge
of either the crimes for which Petitioner
was convicted or the circumstances
for which he blamed the false claims,
the letters and petitions did not
"derogate the strong evidence of lack
of trustworthiness." ALJ Decision
at 11.
Petitioner's final mitigating argument, that the misconduct will not
be
repeated in the future, is based on the fact that he was apparently
able
to comport with Medicare requirements for the several years during
the
criminal and civil proceedings. This period of good conduct must
be
balanced against the evidence regarding the seriousness of
the
misconduct. The length of the exclusion should reflect the
potential
for harm resulting from recurrence of the misconduct.
For example, in
Bernard Lerner, M.D., DAB CR60 (1989), an ALJ affirmed a 15
year
exclusion based on the provider's conviction related to
unlawful
possession and distribution of controlled substances over several
years.
The ALJ found that even though the petitioner had remained
substance
free after his conviction, the potential harm from a relapse was
great
enough to justify the margin of safety to the program and
beneficiaries
provided by the exclusion. Id. at 11. 12/ In
contrast, we affirmed the
reduction of a permissive exclusion from five years
to one year based on
the ALJ's finding that the petitioner did not
demonstrate a propensity
to engage in unlawful or harmful conduct in the
future. See Joyce Faye
Hughey, DAB CR94 (1990) aff'd DAB 1221, at 10-11
(1991).
Thus, we have reviewed the circumstances of Petitioner's unlawful
conduct
along with his proferred mitigating circumstances. Petitioner,
unlike
the provider in Hughey, has not demonstrated a lack of propensity
to engage
in future unlawful conduct. Petitioner was convicted of
multiple
instances of fraud extending over more than two years and
involving several
thousands of dollars. He has shown no remorse or even
acceptance of his
conviction for criminal activity but rather has
attempted to explain it away
through poor recordkeeping or through
veracity attacks on his former
patients. See FFCL Nos. 13-15.
Five years is the minimum length regardless of the basis for
the
conviction, and providers have received this minimum for
crimes
considerably less serious than those of Petitioner. 13/ Based on
the
severity of Petitioner's actions and their adverse effect on
the
Medicare program and beneficiaries, we affirm the ALJ regarding
the
reasonableness of the duration of the six year exclusion, and find
that
it is supported by substantial evidence and is not erroneous.
We therefore affirm FFCL Nos. 13-16 and 22.
CONCLUSION
Based on the foregoing analysis, we adopt all of the ALJ's FFCLs
and
affirm the ALJ Decision and the six year exclusion imposed
on
Petitioner.
_____________________________ Cecilia Sparks Ford
_____________________________ Theodore J. Roumel
_____________________________ Donald F. Garrett Presiding
Board
Member
1. "State health care program" is defined by section 1128(h) of the
Act
to include, in part, a State plan approved under Title XIX of the
Act
(Medicaid). We use the term Medicaid to refer to all state
health
programs.
2. Additionally, Petitioner was sentenced to serve six months in a
work
release program and ordered to perform 500 hours of community
service.
Petitioner was also ordered to pay a special assessment of $1,300 to
the
United States and to make restitution to Medicare in the amount
of
$6427.
3. See Medicare and Medicaid Patient and Program Protection Act
of
1987, Pub. L. No. 100-93 (1987).
4. Lakshmi N. Murty Achalla, M.D., DAB 1231, at 7 (1991);
DAB
Guidelines, Appendix B at 28-29 (1989).
5. See S. REP. No. 100-109, 100th Cong., 1st Sess. 1-2
(1987),
reprinted in 1987 U.S. Code Cong. & Admin. News 682.
6. For additional discussion of the remedial nature of the
1987
Amendments, see 57 Fed. Reg. 3744 (January 29, 1992).
7. Manocchio v. Sullivan, 768 F. Supp. 814, 816-817 (S.D. Fla.
1991).
See also the ex post facto discussion in Francis Shaenboen, R. Ph.,
DAB
1249, at 5-9 (1991).
8. For support, Petitioner has cited two criminal cases, Miller
v.
Florida, 482 U.S. 423 (1987) (convicted of sexual battery, a
second
degree felony) and Weaver v. Graham, 450 U.S. 24 (1981) (pled guilty
to
second degree murder).
9. Petitioner's appeal states these exceptions but presents no
evidence
on this issue other than page citations to the Hearing
Transcript.
10. S. REP. No. 100-109, 100th Cong., 1st Sess 5 (1987). The
report
also notes that the "minimum exclusion provides the Secretary
with
adequate opportunity to determine whether there is a
reasonable
assurance that the types of offenses for which the individual or
entity
was excluded have not recurred and are not likely to do so." Id.
11. These regulations required the Inspector General to consider:
(1)
The number and nature of the program violations and other
related
offenses; (2) The nature and extent of any adverse impact the
violations
have had on beneficiaries; (3) The amount of damages incurred by
the
Medicare, Medicaid and the social services programs; (4) Whether
there
are any mitigating circumstances; (5) The length of the sentence
imposed
by the court; (6) Any other factors bearing on the nature
and
seriousness of the program violations; and (7) The previous
sanction
record of the suspended party under the Medicare or Medicaid
program.
42 C.F.R. .1001.125(b). On January 29, 1992, new regulations
were
adopted regarding the Inspector General's determination of the length
of
mandatory exclusions. 57 Fed. Reg. 3331 (January 29, 1991). 45
C.F.R.
.1001.102(b). These regulations, while not applicable here due
to their
recent adoption, permit consideration of even fewer
mitigating
circumstances.
12. See also David Cooper, R. Ph., DAB CR88 (1990) (ALJ affirmed a
15
year mandatory exclusion against a pharmacist resulting from
a
conviction of fraud, theft, embezzlement, breach of
fiduciary
responsibility, or other financial misconduct); Leonard N.
Schwartz,
R.Ph., DAB CR36 (1989) (eight year mandatory exclusion affirmed for
a
pharmacist convicted of two counts of knowingly and
intentionally
omitting material information from required records in
dispensing
controlled substances).
13. See, for example, David S. Muransky, D.C., DAB CR95 (1991)
(five
year mandatory exclusion affirmed on basis of conviction of
billing
errors in the amount of