SUBJECT:

Gustavo Enrique Coll, M.D.,

Petitioner,

The Inspector General.

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Gustavo Enrique Coll, M.D., from participating in Medicare and other federally funded health care programs for a period of 22 years. I find that the I.G. is mandated to exclude Petitioner for at least five years by section 1128(a)(1) of the Social Security Act (Act). I find additionally, that the 22 year term of the exclusion is not unreasonable in light of evidence relating to aggravating factors established by the I.G.

I. Background

Petitioner is an opthalmologist who practiced in and around Miami, Florida. On May 28, 2004, the I.G. notified Petitioner that he was being excluded from participating in Medicare. The I.G. stated that Petitioner had been convicted of criminal offenses relating to the delivery of Medicare items or services and that an exclusion was mandated by the requirements of section 1128(a)(1) of the Act. The I.G. further advised Petitioner that the 22 year term of his exclusion was based on the presence of aggravating factors and the absence of mitigating factors in his case.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a pre-hearing conference by telephone. I advised the parties that it appeared from the notice letter and Petitioner's hearing request that the case could be decided based on written submissions. I established a briefing schedule for the parties to brief the merits of the exclusion and to submit supporting exhibits. I left open the possibility that I would convene an in-person hearing if either party requested one and persuaded me that one was necessary.

On September 14, 2004 the I.G. timely filed a brief and proposed exhibits. The I.G. designated the proposed exhibits I.G. Ex. 1 - I.G. Ex. 9. Petitioner's reply was received on October 22, 2004. Petitioner filed no exhibits with his reply nor did he object to my receiving any of the I.G.'s exhibits into evidence. I hereby receive I.G. Ex. 1 - I.G. Ex. 9 into the record.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. It is appropriate that I decide this case at this time;

2. Petitioner was convicted of crimes that mandate his exclusion pursuant to section 1128(a)(1) of the Act; and

3. An exclusion of 22 years is reasonable.

B. Findings of fact 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 heading. I discuss each Finding in detail.

1. It is appropriate that I decide this case at this time.

In his brief Petitioner contends that his criminal conviction is presently on appeal before the United States Court of Appeals, 11^th Circuit. He requests that I stay my decision until after the court issues its decision because of the possibility that the court might overturn his conviction altogether or in part.

I do not find it appropriate that I stay my decision. It is uncertain when the court will issue its decision on Petitioner's appeal. There is a possibility that his appeal may be pending for months or longer while the court deliberates his case. It is also unclear whether the court's decision would definitively end Petitioner's appeal. It has been my experience in other cases that appeals last for as long as several years. Consequently, staying this case indefinitely, as Petitioner requests, is unreasonable.

Petitioner will not be affected adversely if I decide this case now. The basis for his exclusion will be eliminated if the court reverses his conviction. In that event the I.G. will rescind the exclusion. 42 C.F.R. � 1001.3005(a)(1). I would entertain a request from Petitioner that I modify my decision in this case if Petitioner's conviction or his sentence are reversed in part, but not in their entirety, and Petitioner moves that I reconsider my decision based on a change in the circumstances of this case. In that event, I would expect that Petitioner would offer proof that the court had modified his conviction in a way that eliminated or modified evidence relating to an aggravating factor.

2. Petitioner was convicted of crimes that mandate his exclusion for at least five years pursuant to section 1128(a)(1) of the Act.

Section 1128(a)(1) of the Act mandates the I.G. to exclude any individual who is convicted of a crime that is related to the delivery of a Medicare item or service. An individual who is excluded pursuant to section 1128(a)(1) must be excluded for at least five years. Act, section 1128(c)(3)(B). The undisputed evidence in this case proves that Petitioner was convicted of a section 1128(a)(1) offense. Consequently, the I.G. must exclude him for at least five years.

On July 23, 2002 a superseding indictment was filed against Petitioner in the United States District Court, Southern District of Florida. I.G. Ex. 3. The superseding indictment contained 90 counts in which Petitioner was alleged to have committed crimes. Counts 1 - 45 charged Petitioner with knowingly submitting, or causing to be submitted, false and fraudulent claims for Medicare reimbursement. Id. at 8 - 12. Counts 46 - 90 charged Petitioner with knowingly filing false claims for opthalmic procedures purportedly provided to Medicare beneficiaries. Id. at 12 - 17.

On June 2, 2003 a judgment was entered against Petitioner in United States District Court. Petitioner was convicted of all 90 counts of the superseding indictment. I.G. Ex. 4.

The evidence offered by the I.G. establishes that Petitioner was convicted of criminal offenses that fall within the purview of section 1128(a)(1) of the Act. Consequently, the I.G. is mandated to exclude him. It is well-established that filing of false claims against Medicare constitutes a criminal offense that is related to the delivery of a Medicare item or service. Petitioner's crimes consisted of "upcoding" his claims for Medicare items or services. I.G. Ex. 3, at 7. Petitioner billed Medicare for higher-priced opthalmic services than those which he actually rendered to his patients. Id. The relationship between Petitioner's crimes and Medicare items or services is apparent from the fact that Petitioner systematically inflated his reimbursement claims for services that were reimbursable from Medicare at a lower rate than that billed by Petitioner.

3. An exclusion of 22 years is reasonable.

Section 1128 of the Act is remedial. Its purpose is to protect Medicare, other federally funded health care programs, and the beneficiaries and recipients of program services from individuals who have been proven to be untrustworthy. The reasonableness of any exclusion that is imposed pursuant to section 1128 therefore must be measured by its remedial effect. Is the exclusion reasonably calibrated to protect programs and their beneficiaries and recipients from an untrustworthy individual?

The Secretary of Health and Human Services has published regulations which establish criteria for deciding whether an exclusion is reasonable. The regulation which establishes such criteria for deciding whether an exclusion imposed pursuant to section 1128(a)(1) of the Act is 42 C.F.R. � 1001.102. This regulation lists a series of "aggravating" and "mitigating" factors which are to be used to decide whether an exclusion is reasonable. The factors function, essentially, as rules of evidence. Evidence that relates to an aggravating or mitigating factor must be evaluated to decide whether an exclusion is reasonable. Evidence that does not relate to one of these factors is irrelevant and may not be considered.

The aggravating factors also operate as rules of evidence in the sense that they do not establish specific guidelines to prescribe the length of an exclusion. There is no formula in the regulations which directs that an exclusion of a given length must be imposed in the presence of a given aggravating or mitigating factor.

The hearing before an administrative law judge is de novo. The administrative law judge must reach an independent decision as to the weight to assign to relevant evidence. An exclusion will be sustained if the evidence establishes that its length falls within a reasonable range, given the evidence relating to aggravating and mitigating factors.

I find that the I.G. established the presence of four aggravating factors. See 42 C.F.R. � 1001.102(b). Petitioner did not allege or prove the presence of any mitigating factors. See 42 C.F.R. � 1001.102(c).

The aggravating factors proved by the I.G. are as follows:

� The acts resulting in Petitioner's conviction, or similar acts, caused or were intended to cause, a financial loss to a Government program, or to one or more entities of $5,000 or more. 42 C.F.R. � 1001.102(b)(1). By any measure Petitioner's crimes and similar acts caused or were intended to cause financial loss to Medicare and other entities of more than the threshold amount. Petitioner was convicted of submitting over $294,000 in false claims to Medicare and was reimbursed by Medicare in excess of $164,000 for services which he did not render. I.G. Ex. 3, at 8. He was sentenced to pay over $812,000 in restitution for his crimes. I.G. Ex. 6, at 1.

� The acts that resulted in Petitioner's conviction, or similar acts, were committed over a period of one year or more. 42 C.F.R. � 1001.102(b)(2). Petitioner was convicted of submitting, or causing to be submitted, false and fraudulent Medicare claims during a period that spanned about three years, from June 1997 through early April 2000. I.G. Ex. 3, at 9 - 16.

� The sentence imposed against Petitioner for his crimes included a period of incarceration. 42 C.F.R. � 1001.102(b)(5). Petitioner was sentenced to a term of 57 months' imprisonment. I.G. Ex. 4, at 5.

� Petitioner was the subject of another adverse action by an agency of State government based on the same set of circumstances that were the basis for his conviction and his exclusion pursuant to section 1128(a)(1). 42 C.F.R. � 1001.102(b)(9). On November 4, 2003, Petitioner voluntarily relinquished his license to practice medicine in the State of Florida. I.G. Ex. 8. He executed an agreement in which he stipulated that the relinquishment would be construed as an action against his license - in other words, an adverse action. Id. at 1; I.G. Ex. 9. Additionally, he stipulated that his purpose in executing the agreement was to "avoid further administrative action with respect to this cause." I.G. Ex. 8. I infer from this that Petitioner relinquished his license in order to avoid misconduct proceedings emanating from his convictions. Id.

Evidence relating to the aggravating factors is ample support for the 22-year exclusion that the I.G. determined to impose. Petitioner is a highly untrustworthy individual. Based on this evidence, which I discuss below, I conclude that the exclusion imposed by the I.G. falls within a reasonable range of exclusions.

The 90 counts of false and fraudulent claims of which Petitioner was convicted show that Petitioner systematically defrauded Medicare over a lengthy period of time. They establish that Petitioner's fraud was not random or occasional but, rather, a deliberate and persistent scheme to mulct funds unlawfully from Medicare. The impact of Petitioner's crimes were great. In his agreement to pay restitution Petitioner acknowledged that the United States would be able to prove a restitution amount of nearly $793,000 owing to Medicare alone. I.G. Ex. 6, at 1. Petitioner admitted owing restitution of nearly $15,000 to Florida's Medicaid program and over $4,000 to private insurers. Id. ⁽¹⁾

The duration, number, and financial impact of his crimes, standing alone, establish why Petitioner constitutes a significant threat to the integrity of Medicare and other federally funded health care programs. The length of his prison sentence is another indicator of his untrustworthiness. I find that the 57-month sentence - nearly five years - is evidence both of the seriousness of Petitioner's crimes and the degree to which the sentencing judge found him to be untrustworthy. Finally, the fact that Petitioner relinquished his license in the face of a State license revocation proceeding proves that the State of Florida also considers Petitioner to be highly untrustworthy. I note that in his agreement to relinquish his license Petitioner specified that he would never again apply for a license to practice medicine in Florida. I.G. Ex. 8 at 1 - 2; I.G. Ex. 9 at 1. Obviously, the State of Florida's insistence that this clause be in the license relinquishment agreement is proof that it considers Petitioner to be extraordinarily untrustworthy.

Steven T. Kessel

Administrative Law Judge

1. In his brief Petitioner asserts that the constitutionality of the restitution judgment is one of the issues now on appeal to the United States Court of Appeals. Petitioner's Brief at 1. However, Petitioner doesn't deny that he committed fraud in the amount he stipulated to in the restitution agreement nor does he explain why the agreement is unlawful or unconstitutional. Id.