Nabil Jabbour, DAB CR6118 (2022)

DECISION

Petitioner, Nabil Jabbour, was a physician who, until December 2018, was licensed to practice in Pennsylvania.  For about three years, he distributed controlled substances for no legitimate medical purpose, defrauding state and federal health care programs in the process.  He was ultimately convicted on three counts of distributing the narcotic, Buprenorphine; one count of health care fraud; and one count of money laundering, all felonies.  The court sentenced him to twelve months and one day in prison.  Based on his convictions, the Inspector General (IG) has excluded Petitioner for ten years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by sections 1128(a)(1) and 1128(a)(4) of the Social Security Act (Act).

Petitioner appeals, challenging both the exclusion itself and its duration.

For the reasons discussed below, I find that the IG properly excluded Petitioner and that the ten-year exclusion falls within a reasonable range.

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Background

In a letter dated November 30, 2021, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a minimum period of ten years because he had been convicted of a “criminal offense related to the delivery of an item or service under Medicare or a State health care program” and of a “criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  The letter explained that sections 1128(a)(1) and 1128(a)(4) of the Act authorize the exclusion.  IG Ex. 1.

Petitioner requested review.

Exhibits.  The IG has submitted a written brief (IG Br.), five exhibits (IG Exs. 1-5), and a Reply brief (IG Reply).  In the absence of any objections, I admit into evidence IG Exs. 1-5.

Petitioner has submitted his own brief (P. Br.) and one exhibit, marked as Exhibit A.  Because it duplicates IG Ex. 4, I decline to admit it.

Hearing on the written record.  I instructed the parties to indicate, in their briefs, whether a hearing is necessary, to list proposed witnesses, and to submit witness testimony in the form of an affidavit or written sworn declaration.  I emphasized I would “only accept witness testimony that is . . . relevant.”  Order and Schedule for Filing Briefs and Documentary Evidence at 5 (¶ 7) (April 25, 2022) (emphasis in original).  The IG indicates that an in-person hearing is not necessary.  IG Br. at 10.

Petitioner, however, maintains that an in-person hearing is necessary and lists himself as a witness.  P. Br. at 2.  He offers no written declaration, which, by itself, could preclude him from testifying.  More significant, he has not established that his testimony is relevant.  He asserts that he would “describe the conditions surrounding [his] plea agreement and how both [his] trial attorney and the prosecution coerced [him] into pleading guilty out of fear.”  P. Br. at 2-3.  As I discuss below, Petitioner’s underlying conviction is not reviewable in this forum.  42 C.F.R. § 1001.2007(d).  Because his proposed testimony constitutes a collateral attack on his conviction, it is irrelevant and inadmissible.

Thus, the parties propose no witnesses offering relevant testimony; an in-person hearing would therefore serve no purpose, and this case may be decided based on the written record.

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Discussion

1. Petitioner must be excluded from program participation for a minimum of five years because he was convicted of a criminal offense related to the delivery of an item or service under the Medicare and Medicaid programs and because he was convicted of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  Act §§ 1128(a)(1), 1128(a)(4).¹

Section 1128(a)(1) of the Act mandates that the Secretary of Health and Human Services exclude from program participation 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.  See 42 C.F.R. § 1001.101(a).

Section 1128(a)(4) mandates that the Secretary exclude from program participation an individual who has been convicted, under federal or state law, of a felony criminal offense “relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.”  See 42 C.F.R. § 1001.101(d).

Here, Petitioner was a physician, licensed to practice in Pennsylvania.  Through his medical practice, he gave prescriptions for controlled substances, including the narcotic, Buprenorphine, “outside the usual course of professional practice and not for . . . legitimate medical purpose[s].”  IG Ex. 2 at 1-2.  The Medicare and Medicaid programs paid for some of those prescriptions.  IG Ex. 2 at 5-6.

Petitioner’s scheme continued for almost three years – from January 2014 through December 2016.  IG Ex. 2 at 6.

On September 27, 2018, a Grand Jury issued a 25-count indictment, charging Petitioner with:

• 17 felony counts of distributing the schedule III controlled substance, Buprenorphine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(E)(i);
• Two felony counts of using and maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1);
• One felony count of health care fraud, in violation of 18 U.S.C. § 1347; and

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• Five felony counts of money laundering, in violation of 18 U.S.C. § 1957(a).

IG Ex. 2.

Petitioner pleaded guilty to three felony counts of distribution of Buprenorphine; one felony count of health care fraud; and one felony count of money laundering.  IG Exs. 3, 4.

On December 9, 2020, the Federal District Court for the Western District of Pennsylvania accepted Petitioner’s pleas and entered judgment against him on the five felony counts.  IG Ex. 4 at 1-2.  The Court sentenced him to 12 months and one day of imprisonment, followed by one year of supervised release.  IG Ex. 4 at 3, 4.  He was fined $75,000 and ordered to pay $40,000 in restitution – $25,000 to the state Medicaid program and $15,000 to the Centers for Medicare & Medicaid Services, which administers the Medicare program.  IG Ex. 4 at 7, 8.

Thus, Petitioner was plainly convicted under federal law of a criminal offense (health care fraud) related to the delivery of an item – the drug Buprenorphine – under the Medicare and Medicaid programs, which suffered $40,000 in losses because of his felonious conduct.  The plain language of his conviction leaves no doubt that his crime falls squarely within the parameters of the statute:  he “did knowingly and willfully execute” a scheme to defraud the Medicare and Medicaid programs and “to obtain or cause to be obtained, by means of materially false and fraudulent pretenses, representations, and promises, money under the custody and control of those programs in connection with the delivery of, and payment for, health care benefits and services.”  IG Ex. 2 at 6 (emphasis added).  He must therefore be excluded for a minimum period of five years under section 1128(a)(1).

Because his other felony convictions were for the unlawful distribution of a controlled substance, he is also subject to exclusion under section 1128(a)(4).

Although Petitioner admits that he was convicted of these crimes, he claims that his trial attorney and the prosecution coerced his guilty plea and that he agreed to it “out of fear.”  P. Br. at 2-3.  I note that, in pleading guilty, Petitioner admitted that he understood the terms of the plea agreement, accepted them, and affirmed that no federal agents or officials made “additional promises or representations” in connection with the matter.  IG Ex. 3 at 8.

In any event, the regulations preclude such a collateral attack on an underlying conviction:

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When the exclusion is based on the existence of a criminal conviction . . . or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it, either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d); Yolanda Hamilton, M.D., DAB No. 3061 at 9-10 (2022); Funmilola Mary Taiwo, DAB No. 2995 at 8 (2020); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).

2. Based on the aggravating factors and no mitigating factor, the ten-year exclusion falls within a reasonable range.

An exclusion brought under section 1128(a)(1) or section 1128(a)(4) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  I now consider whether the length of the exclusion, beyond five years, falls within a reasonable range.  See Edwin L. Fuentes, DAB No. 2988 at 8-9 (2020); Hussein Awada, M.D., DAB No. 2788 at 5-6 (2017).

Among the factors that may serve as a basis for lengthening the period of exclusion are the three that the IG relies on in this case:  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; and 3) the individual has been the subject of any other adverse action by any federal, state, or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for imposing the exclusion.  42 C.F.R. § 1001.102(b).  The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion.

“Simply meeting the threshold for an aggravating factor is a clear indication of untrustworthiness.”  Awada, DAB No. 2788 at 10.

As the following discussion shows, the IG correctly identified the aggravating factors and correctly determined that there are no mitigating factors.

Duration of criminal conduct (42 C.F.R. § 1001.102(b)(2)).  We consider the length of Petitioner’s participation in the criminal scheme in order to distinguish the individual whose lapse in integrity is short-lived from those who display a lack of integrity over a longer period of time.

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The importance of distinguishing between the two groups of individuals cannot be overstated in light of the remedial purpose of the [IG’s] exclusion authority under section 1128:  to protect federal health care programs and the beneficiaries they serve from untrustworthy individuals.

Hamilton, DAB No. 3061 at 14-15 (citations omitted); see also Donald A. Burstein, Ph.D., DAB No. 1865 at 8 (2003) (“Participation in, or even knowing but silent acquiescence in, a continuing fraudulent scheme that could be expected to cause repeated misrepresentations and repeated harm over a period of time evidences a continuing lack of integrity.”).

Petitioner engaged in criminal conduct that lasted from January 2014 through December 2016, which is almost three years.  IG Ex. 2 at 6.  Although he concedes that the IG is correct as to the duration of his criminal conduct, Petitioner nevertheless asks that I not enforce section 1001.102(b)(2) because his conduct “was relatively short-lived,” and his addiction (which I discuss below) affected the “length over which his conduct occurred.”  P. Br. at 2.
I do not agree that three years of felonious conduct is “relatively short-lived.”  See, e.g., Laura Leyva, DAB No. 2704 at 10 (2016) (finding that participation in a fraud scheme for over two years “amply demonstrates more than a short-lived lapse in integrity”), aff’d, Leyva v. Price, No. 8:16-CV-1986-T-27AEP, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017).  Moreover, even if I were at all sympathetic to Petitioner’s argument (which I am not), I am not free to disregard a regulation’s explicit directives.  See Kimberly Jones, DAB No. 3033 at 13 (2021) (holding that a regulation creating an aggravating factor “cannot be ignored orminimized”); W. Scott Harkonen, M.D., DAB No. 2485 at 22 (2012), aff’d, Harkonen v. Sebelius, No. 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. 2013); Salvacion Lee, M.D., DAB No. 1850 (2002).

The evidence firmly establishes that Petitioner actively engaged in his criminal activities for about three years, a significant amount of time – triple the one-year threshold for aggravation – which underscores that he is not trustworthy and justifies a period of exclusion that is significantly longer than the minimum.

Incarceration (42 C.F.R. § 1001.102(b)(5)).  The court sentenced Petitioner to a substantial period of incarceration – one year and a day.  IG Ex. 4 at 3.  While any period of incarceration justifies increasing the period of exclusion, the Departmental Appeals Board has repeatedly held that longer periods of incarceration are relevant in determining whether a period of exclusion is reasonable.  Eugene Goldman, M.D., DAB No. 2635 at 6 (2015).  Generally, the longer the jail time, the longer the exclusion, because a lengthy sentence evidences

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a more serious offense.  See Jeremy Robinson, DAB No. 1905 at 6 (2004) (finding that one year and a day of incarceration, with other factors, supports “sufficient” weight); Jason Hollady, M.D., DAB No. 1855 at 12 (2002) (characterizing a nine-month incarceration as “relatively substantial.”); Stacy Ann Battle, D.D.S., DAB No. 1843 (2002) (finding that four months in a halfway house, followed by four months home confinement, justifies lengthening the period of exclusion); Brenda Mills, M.D., DAB CR1461, aff’d, DAB No. 2061 (2007) (finding that six months home confinement justifies increasing the length of exclusion).

Petitioner admits that he was sentenced to one year and a day of incarceration, but claims, without support or explanation, that he was released early, so the IG’s arguments regarding his incarceration “are incorrect.”  P. Br. at 2.  Even if this were relevant, I would disregard it because no underlying evidence supports Petitioner’s assertion.  The record is silent as to the timing or conditions of his purported early release.

In any event, Petitioner’s purported early release is irrelevant.  He does not claim – and nothing in the record suggests – the court reduced his sentence.²  Thus nothing negates that the court imposed the sentence nor prevents the IG from applying it as an aggravating factor.  See Hamilton, DAB No. 3061 at 15-16 (finding that, even though the sentencing judge delayed Petitioner’s date to report for incarceration until her pending appeal was resolved, so long as “the sentence imposed by the court included incarceration,” the IG appropriately established it as an aggravating factor).

Because Petitioner was sentenced to a year and a day in prison, the IG appropriately determined that this significant prison sentence justifies increasing the period of his exclusion.

Other adverse actions (42 C.F.R. § 1001.102(b)(9)).  Citing the criminal indictment and Petitioner’s conviction, the Commonwealth of Pennsylvania Bureau of Professional and Occupational Affairs filed, with the State Board of Medicine, a “Petition for Immediate Temporary Suspension” of Petitioner’s medical license.  The Medical Board’s Probable Cause Screening Committee approved the petition and, on October 9, 2018, suspended Petitioner’s medical license.  IG Ex. 5 at 1-2.

Thereafter, in proceedings before the Medical Board, Petitioner conceded that, if the case were to proceed to a hearing, the Commonwealth would present evidence

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of the criminal indictment and Petitioner’s felony convictions.  Because Petitioner was convicted of a felony relating to the health profession, the Medical Board was authorized to suspend or revoke Petitioner’s medical license.  IG Ex. 5 at 2-6.  To avoid those sanctions, in a Consent Agreement and Order, dated December 18, 2020, Petitioner agreed to the “PERMANENT VOLUNTARY SURRENDER” of his license to practice as a physician.  IG Ex. 5 at 6, 12 (emphasis in original).

Petitioner now argues that the voluntary surrender of his license should not be considered an aggravating factor because it occurred “in lieu of other disciplinary sanctions.”  P. Br. at 2.  This argument has no merit.  The “pertinent fact for purposes of section 1001.102(b)(9)” is that the state board “took an adverse action against Petitioner based on the same facts underlying his criminal conviction.”  Robert Kolbusz, M.D., DAB No. 2759 at 8 (2017).³  That the action could arguably have been much worse does not alter that dispositive fact.

Indeed, Petitioner was subject to two adverse actions that were based on the same set of circumstances (his felony convictions) that serves as the bases for his exclusion:  the October 9, 2018 temporary suspension of his medical license; and the December 18, 2020 permanent voluntary suspension of his license.  Either of these actions would justify extending the period of Petitioner’s exclusion.  It does not matter that the October 9 suspension lasted only a few months.  “The suspension of a state professional license for any period of time is significant.”  Jones, DAB No. 3033 at 12.

Thus, based on the same set of circumstances that serves as the basis for imposing this exclusion, Petitioner was subject to an additional adverse action by a state board, and the IG may apply this factor to extend the period of his exclusion.

No mitigating factors.  The regulations consider mitigating just three factors:  1) a petitioner was convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $5,000; 2) the record in the criminal proceedings demonstrates that a petitioner had a mental, physical, or emotional condition that reduced his culpability; and 3) a 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).  Characterizing the mitigating factor as “in the nature of an affirmative defense,” the Board has ruled that Petitioner has the burden of proving any mitigating factor by a preponderance of the evidence.  Barry D. Garfinkel, M.D., DAB No. 1572 at 8 (1996).

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Pointing out that, as a condition of his supervised release, the sentencing court ordered him to attend, successfully complete, and pay for a gambling addiction program, Petitioner argues that his period of exclusion should be reduced pursuant to section 1001.102(c)(2).  P. Br. at 2; IG Ex. 4 at 6.

Except for that single provision in the sentencing order and evidence that he laundered his ill-gotten gains through cash transactions at gambling casinos (which is hardly a mitigating factor), the record here includes little evidence of Petitioner’s gambling problems.  IG Ex. 2 at 8.  To meet his burden, Petitioner must not only prove that he had an addiction problem, but also that the sentencing judge found that it reduced his culpability.  I must be able to infer, “clearly,” from the evidence of the proceedings, that the sentencing court made the requisite determination.  Mohamad Ahmad Bazzi, DAB No. 2917 at 10-11 (2018) (citing Russell Mark Posner, DAB No. 2033 at 9, 11 (2006)); Ilya Kogan, DAB No. 3034 at 8 (2021).  Given the sparsity of evidence concerning Petitioner’s purported gambling addiction, I can draw no such inference here.  See also Patel v. Shalala, 17 F. Supp. 2d 662, 667 (W.D. Ky. 1998); Spyros N. Panos, M.D., DAB No. 2709 at 6, 10 (2016); Christopher Switlyk, DAB No. 2600, at 5-6 (2014).

Thus, no mitigating factors offset the significant aggravating factors present in this case.  Petitioner was convicted of felonies.  He has not established that he had a mental, physical, or emotional condition that reduced his culpability.  He did not cooperate with federal officials.

Based on the three aggravating factors and the absence of any mitigating factor, I must determine whether the exclusion period imposed by the IG falls within a reasonable range.  So long as that period falls within a reasonable range, my role is not to second-guess the IG’s judgment.  Robinson, DAB No. 1905 at 5 (Administrative Law Judge review must reflect the deference accorded to the IG by the Secretary).

A “‘reasonable range’ refers to a range of exclusion periods that is more limited than the full range authorized by the statute [i.e. from a minimum of five years to a maximum of permanent] and that is tied to the circumstances of the individual case.”  Joseph M. Rukse, Jr., R.Ph., DAB No. 1851 at 11 (2002) (citing Gary Alan Katz, R.Ph., DAB No. 1842 at 8 n.4 (2002)).  The goal is to protect federal health care programs and beneficiaries from potential harm.  Joann Fletcher Cash, DAB No. 1725 (2000).

The underlying facts here more than justify a ten-year exclusion.  For about three years, Petitioner engaged in felonious conduct, distributing narcotics for no legitimate medical purpose, many of them paid for by federal and state insurance

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programs.  Because his conduct was serious, the court sentenced him to significant prison time and his medical license was permanently suspended.  He has shown an ongoing lack of integrity and poses a threat to health care programs.  I therefore conclude that the ten-year exclusion falls within a reasonable range.

Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs.  So long as the period of exclusion is within a reasonable range, based on demonstrated criteria, I have no authority to change it.  Cash, DAB No. 1725 at 7 (citing 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992)).  I find that the ten-year exclusion falls within a reasonable range.

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Endnotes