Jeffrey David Gross, MD, DAB CR6108 (2022)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Jeffrey David Gross, MD, from participation in Medicare, Medicaid, and all other federal health care programs based on his felony conviction for conspiracy to commit honest services mail fraud, honest services wire fraud, and use of an interstate facility in aid of bribery.  For the reasons discussed below, I conclude that the IG has a basis to exclude Petitioner because his felony conviction was in connection with the delivery of health care items or services and was related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.  The IG has proven two aggravating factors, and no mitigating factors are present.  A minimum period of exclusion for 10 years, effective January 19, 2022, is not unreasonable. 

I.    Background

In a letter dated December 30, 2021, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) (42 U.S.C. § 1320a-7b(f)) for a minimum period of

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10 years, effective 20 days from the date of the letter.  IG Ex. 1 at 1.  The IG explained the following basis for excluding Petitioner:

The OIG is imposing this exclusion under section 1128(a)(3) of the Act, due to your felony convictions (as defined in section 1128(i) of the Act) in the United States District Court, Central District of California, of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct, in connection with the delivery of a health care item or service, or with respect to any act or omission in a health care program (other than Medicare and a State health care program) operated by, or financed in whole or in part, by any Federal, State or local government agency.  [See] 42 U.S.C. [§] 1320a-7(a)(3), 42 C.F.R. [§] 1001.101(c). 

IG Ex. 1 at 1.  The IG informed Petitioner that the exclusion was for “a minimum period of 10 years.”  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(c)(3)(B).  The IG extended the exclusion period from the statutory minimum of five years to 10 years based on the presence of the following two aggravating factors:  1) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more from approximately February 2008 to about June 2013; and 2) Petitioner’s sentence included incarceration, specifically 15 months of incarceration.  IG Ex. 1 at 1; 42 C.F.R. § 1001.102(b)(2), (5).  The IG considered “information furnished . . . in response to [a] letter to [Petitioner]” and determined that mitigating factors were not present to reduce the length of the exclusion.  IG Ex. 1; see 42 C.F.R. § 1001.102(c). 

Petitioner, through counsel, filed a timely request for an administrative law judge (ALJ) hearing on March 4, 2022.  On March 21, 2022, pursuant to 42 C.F.R. § 1005.6, I presided over a telephonic pre-hearing conference.  That same day, I issued an order summarizing the discussions that took place during the pre-hearing conference.  

The IG, through counsel, filed a brief and a reply brief, along with four exhibits (IG Exs. 1-4).  Petitioner, through his counsel, filed a brief (P. Br.) and two exhibits (P. Exs. 11-12).  

The IG objects to the admission of P. Exs. 11 and 12 into the evidentiary record.  P. Ex. 11 is the written direct testimony of Petitioner.  Although the testimony is questionably relevant to the issues before me1 (e.g., whether Petitioner has a felony conviction that

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mandates exclusion, and if so, whether the 10-year minimum length of the exclusion is unreasonable), I admit the testimony that was submitted pursuant to section 8 of the Standing Pre-Hearing Order.  P. Ex. 12 is a photograph of a framed and undated document, entitled “DISCLOSURE.”  Although I afford essentially no probative weight to this evidence, I nonetheless admit P. Ex. 12 and address that document below.  I admit all exhibits into the evidentiary record.  

The IG has not requested an opportunity to cross-examine Petitioner, and a hearing is therefore unnecessary for the purpose of cross-examination of any witnesses.  Standing Pre‑Hearing Order § 9, 11; see Lena Lasher,DAB No. 2800 at 4 (2017) (discussing that “no purpose would be served by holding an in-person hearing” when there is no need to cross-examine any witnesses), aff’d, Lasher v. Dep’t of Health & Human Servs., 369 F.  Supp. 3d 243 (D.D.C. 2019).  I will decide this case on the written submissions and documentary evidence. 

II.   Issues

Whether there is a basis for exclusion, and if so, whether a minimum period of exclusion of 10 years is unreasonable.  42 C.F.R. § 1001.2007(a)(1).

III.  Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2. 

IV.   Findings of Fact, Conclusions of Law, and Analysis2

1.  Petitioner is a physician and neurosurgeon who operated a medical practice in California.

2.  On July 12, 2020, Petitioner entered into a plea agreement in which he agreed to plead guilty to Count One of a federal indictment charging that he engaged in a conspiracy to commit honest services wire fraud, honest services mail fraud, and use of an interstate facility in aid of bribery.

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3.  Petitioner admitted that his felony offense involved his participation in a scheme to defraud patients of their right to honest services, in which he accepted bribes and kickbacks totaling $622,936 as payments to induce his referral of patients to Pacific Hospital for spinal surgeries and other medical services.

4.  Petitioner admitted that the payments he received were material to patients because they were capable of influencing patients’ medical decisions, to include the location of a recommended surgery. 

5.  An amended order dated July 21, 2021, reflects that a federal district court issued an amended imposition of judgment of Petitioner’s felony conviction on July 21, 2021.

6.  Petitioner’s felony conviction for engaging in a conspiracy is related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct and was committed in connection with the delivery of a health care item or service. 

7.  Pursuant to section 1128(a)(3) of the Act, 42 U.S.C. § 1320a-7(a)(3), Petitioner’s felony conviction mandates exclusion from all federal health care programs for a minimum of five years. 

8.  Petitioner admitted that he engaged in the conspiracy from April 2008 through May 2013. 

9.  Petitioner was sentenced to a 15-month term of incarceration. 

10.  Petitioner has not argued the applicability of any mitigating factors enumerated in 42 C.F.R. § 1001.102(c), and the record does not otherwise indicate the presence of any mitigating factors. 

11.  A 10-year minimum period of exclusion, based on two aggravating and no mitigating factors, is not an unreasonable period of exclusion. 

Section 1128(a)(3) of the Act requires a mandatory exclusion from all federal health care programs under certain conditions.3  Section 1128(a)(3), as codified, states:

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(a) Mandatory Exclusion.—The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)): 

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(3) Felony conviction relating to health care fraud.—Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program (other than those specifically described in paragraph (1)) operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct. 

42 U.S.C. § 1320a-7(a)(3).  As explained below, I find that Petitioner was convicted of a felony criminal offense for purposes of the Act that mandates exclusion from all federal health care programs. 

On or about January 23, 2018, federal prosecutors in the Central District of California secured a 14-count grand jury indictment against Petitioner.  Count One of the indictment charged that Petitioner, from “no later than in or about February 2008, and continuing through at least in or around June 2013 . . . conspired and agreed to commit the following offenses against the United States:  Honest services mail fraud, in violation of [18 U.S.C. §§ 1341 and 1346]; Honest services wire fraud, in violation of [18 U.S.C. §§ 1343 and 1346]; and Use of an interstate facility in aid of bribery, in violation of [18 U.S.C. § 1952(a)].”  IG Ex. 2 at 6. 

In addressing the manner and means of the conspiracy, the indictment explained that an indicted co-conspirator, two unindicted co-conspirators, and other co-conspirators “would offer to pay and cause the payment of kickbacks to [Petitioner] and other surgeons . . . in exchange for patient-related referrals to Pacific Hospital and Affiliated Entities for spinal surgeries, other types of surgeries, magnetic resonance imaging . . . toxicology, durable medical equipment, and other services . . . that would be billed to health care benefit

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programs or subject to personal injury claims and/or liens.”  IG Ex. 2 at 6.  The indictment further charged that “[i]nfluenced by the promise of kickbacks . . . [Petitioner] would cause patients insured by various health care benefit programs, or subject to personal injury claims and/or liens, to have Kickback Tainted Surgeries and Services at Pacific Hospital and Affiliated Entities.”  IG Ex. 2 at 7.  The indictment explained, “[i]n soliciting and receiving concealed bribes and kickbacks to induce the referral of patients and corresponding ancillary services to Pacific Hospital and Affiliated Entities, [Petitioner] and other medical professionals would deprive patients of their right to honest services.”  IG Ex. 2 at 7.  Further, the indictment reported that the kickback payments to recipients were arranged through various agreements to “conceal and disguise” the nature of the payments, and that Petitioner received payments “under the guise of bogus contracts, including a sublease agreement, an option agreement, and an ‘Outsourced Collection Agreement.’”  IG Ex. 2 at 8-9.  The indictment reported that Petitioner performed or referred approximately $19 million of the total amount Pacific Hospital billed to potential claim payers and “for which Pacific Hospital was paid more than approximately $5.5 million.”  Petitioner was paid “approximately $622,936 in connection with” his kickback-tainted surgeries and services.  IG Ex. 2 at 10.  

Count One stated that if potential claims payers had known of the scheme, they “would have subjected the claims to additional review, would not have paid the claims, and/or would have paid a lesser amount on the claims. . . .”  IG Ex. 2 at 9.  Count One also stated that if patients had known of the scheme, they “would have more closely scrutinized a surgery or hospital service recommendation, would have sought second opinions from physicians who did not have a financial conflict of interest, would not have had the surgery or service performed, and/or would have insisted on a different hospital facility.”  IG Ex. 2 at 9-10. 

Addressing the impact of the scheme, Count One stated: 

Physicians owed a fiduciary duty to their patients, requiring physicians to act in the best interest of their patients, and not for their own professional, pecuniary, or personal gain.  Physicians owed a duty of honest services to their patients for decisions made relating to the medical care of those patients, including the informed choice of whether to undergo surgery and other medical procedures, as well as the selection of a provider and facility for such surgeries and procedures.  Patients’ right to honest services from physicians included the right not to have physician-fiduciaries solicit or accept bribes and kickbacks connected to the medical care of such patients. 

IG Ex. 2 at 5.

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On July 12, 2020, Petitioner signed a plea agreement with the United States in which he agreed to “appear and plead guilty to count one of the indictment. . . .”  IG Ex. 3 at 2-3, 25.  Petitioner also agreed to “a personal money judgment of forfeiture against [him] in the amount of $622,936.00, which sum [he] admits [he] obtained, received and possessed as a result of one or more violations of 18 U.S.C. § 371, and which judgment [he] agrees can be enforced against assets owned by [him].”  IG Ex. 3 at 3. 

The plea agreement included the following discussion addressing the factual basis for the guilty plea: 

[Petitioner] was a licensed neurosurgeon who operated . . . a medical practice. . . .  As a physician and neurosurgeon, [Petitioner] owed a fiduciary duty to his patients to provide conflict-free medical advice and advice concerning the location of a patient’s surgery. . . .  From 2008 to 2013, [Petitioner] agreed with [a co-conspirator] and others to participate and did, in fact, participate in a scheme to defraud patients of their right to honest services by accepting bribes and kickbacks paid to induce him to refer patients to Pacific Hospital for spinal surgeries and other medical services. 

IG Ex. 3 at 13. 

The plea agreement detailed that Petitioner’s practice entered into a $15,000 per month sublease agreement with a company affiliated with Pacific Hospital, a $15,000 per month option contract with the same affiliated entity, and an outsourced collections agreement that paid 10 to 15 percent of the amounts collected by Pacific Hospital for spinal surgeries Petitioner performed at that facility, plus an additional $5,000 each time Petitioner used International Implant hardware during spinal surgeries.  IG Ex. 3 at 13-15.  Petitioner acknowledged that the purpose of these payments was “to induce [him] to bring certain spinal surgery patients to Pacific Hospital.”  IG Ex. 3 at 13-14.  Petitioner also acknowledged that with respect to each of these payments, he “did not disclose that information to [his] patients.”  IG Ex. 3 at 14-15.  The plea agreement explained that “[b]etween April 2008 and May 2013, [a co-conspirator] paid a total of $622,936 to [Petitioner] pursuant to the sublease agreement, option contract, and outsourced collections agreement,” and that “[d]uring the same period, [Petitioner] referred dozens of patients to Pacific Hospital for spinal surgeries based in part on payments made to him under those agreements.”  IG Ex. 3 at 15.  Petitioner acknowledged his understanding that “the $622,936 paid to him by [the co-conspirator] constituted bribes and kickbacks to induce him to refer his patients to Pacific Hospital” and he “knowingly deprived his patients of their right to his honest services.”  IG Ex. 3 at 15.

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Petitioner appeared for sentencing on May 21, 2021, and an amended judgment and probation/commitment order dated July 21, 2021, documents that Petitioner’s sentence included 15 months of incarceration.  IG Ex. 4 at 1. 

Pursuant to section 1128(i)(3) of the Act, an individual is considered to have been convicted of a criminal offense “when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court.”  42 U.S.C. § 1320a-7(i)(3).  Petitioner does not dispute that he has a felony conviction.  See P. Br. at 6 (acknowledging guilty plea to Count One of the indictment); see also IG Exs. 3 at 10 (discussion that the offense of conspiracy to which Petitioner pleaded guilty carries a five-year maximum term of incarceration); 4 (imposition of a 15-month period of incarceration); 18 U.S.C. § 3559(a)(5) (classifying an offense that is punishable by more than one year of incarceration as a Class E felony). 

Petitioner disputes that exclusion is warranted pursuant to 42 U.S.C. § 1320a-7(a)(3), and argues, without support, that the “purported facts” outlined in the plea agreement are “not proper” for this proceeding.  P. Br. at 3.  I disagree; the plea agreement signed by Petitioner outlines the agreed upon “factual basis” for his guilty plea to the felony offense of conspiracy.  IG Ex. 3 at 12-16.  Although Petitioner states that he “does not attempt to modify the terms of the Plea Agreement or argue anything contrary thereto,” he does.  P. Br. at 11.  Petitioner argues that it is “not true” that he did not disclose to patients the kickbacks he received, arguing that he “made a written disclosure to all of his patients.”4   P. Br. at 10-11.  However, Petitioner repeatedly stated in the plea agreement that a purpose of eachillegal payment agreement “was to induce and compensate [him] for his surgical referrals, and [he] did not disclose that information to his patients.”  IG Ex. 3 at 14-15; see IG Ex. 3 at13-14 (addressing sublease agreement); 14 (addressing option agreement); 14-15 (addressing outsourced collection agreement).  Regardless of whether Petitioner posted a framed disclosure notice in an unspecified location,5 he admitted that

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the $622,936 he received through various agreements “constituted bribes and kickbacks to induce him to refer his patients to Pacific Hospital,” and that “[b]y receiving these payments, [he] knowingly deprived his patients of their right to his honest services.”  IG Ex. 3 at 15; see P. Ex. 12.  Regardless of his current viewpoint, Petitioner admitted in July 2020, at the time he entered into a plea agreement, that his felonious conspiracy to commit, inter alia, honest services mail fraudand honest services wire fraudinvolved his receipt of bribes and kickbacks and adversely impacted his patients. 

Petitioner also argues that Kabins v. Sebelius, No. 2:11-cv-01742, 2012 WL 4498295 at * 3 (D. Nev. Sept. 28, 2012), a district court decision, supports that his offense is not “related to the delivery of an item or service under Medicare.”  P. Br. at 13.  However, Petitioner need not have committed an offense related to an item or service under Medicare to be subject to exclusion under section 1128(a)(3) of the Act; exclusion can be mandated pursuant to section 1128(a)(3) of the Act when a felony conviction is related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.  42 U.S.C. § 1320a-7(a)(3).  Here, the nexus to a health care program such as the Medicare program is irrelevant.  The DAB has addressed the felonious conduct that mandates exclusion under section 1128(a)(3), explaining: 

[S]ection 1128(a)(3) of the Act is written in the disjunctive to cover two different categories of felonies relating to “fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.”  Each category has its own distinct requirements for an exclusion.  Thus, section 1128(a)(3) covers as a first category, any individual convicted of one of the listed felonies “in connection with the delivery of a health care item or service” (see 42 C.F.R. § 1001.101(c)(1)), and it covers, as a second category, any individual convicted of a listed felony with respect to any act or omission in a health care program operated by or financed in whole or in part by any Federal, State, or local government.  [See] 42 C.F.R. § 1001.101(c)(2).  As the ALJ clearly recognized, Petitioner was excluded based on his conviction of a listed felony under the first category “in connection with the delivery of a health care item or service.”

Erik D. DeSimone, R.Ph., DAB No. 1932 (2004).  Petitioner’s felony offense was in connection with the delivery of a health care item or service, specifically, the provision of spinal surgeries.  And the felony offense was undoubtedly related to “fraud, theft. embezzlement, breach of fiduciary responsibility, or other financial misconduct,” inasmuch as Petitioner conspired to receive bribes and kickbacks to perform surgeries at a particular hospital, with the patients being unaware of these bribes and kickbacks.

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Exclusion under section 1128(a)(3) is mandated, and it is irrelevant whether Petitioner’s felonious conduct related to Medicare or any other health care program. 

The DAB has distinguished Kabins for reasons that resonate with the instant circumstances.  The DAB explained that Dr. Kabins “had a relationship with a consultant and an attorney under which the attorney received referrals of potential personal injury clients and Dr. Kabins received potential patient referrals.”  Aiman M. Hamdan, M.D., DAB No. 2955at 6-7 (2019).  Dr. Kabins’ conviction for misprision of a felony “was based on . . . having assisted the attorney in assessing a potential lawsuit by one of [his] former patients without revealing the attorney’s potential conflict of interest.”  Id. at 6-7.  The DAB explained that “the court based its reversal on its conclusion that the specific crime of which Dr. Kabins was convicted, and the facts regarding his criminal conduct, had nothing to do with fraud in connection with the delivery of health care but, instead, with the attorneys’ failure to provide proper legal services to a former patient of Dr. Kabins long after Dr. Kabins had finished providing medical services to the patient.”  Id. at 7. 

Addressing an ALJ’s review of an exclusion, the DAB has explained that an ALJ does not need to limit review to the elements of an offense but may consider the extrinsic evidence surrounding the conviction to determine whether it is “relating to” fraud and done “in connection with” the delivery of a health care item or service.  See Narendra M. Patel, M.D., DAB No. 1736 at 6 (2000), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003).  The DAB has stated there should be a “common sense connection” between the underlying crime and the delivery of a health care item or service in order to meet the statutory basis for exclusion.  DeSimone, DAB No. 1932 at 5.  Petitioner was convicted of engaging in a conspiracy to commit, inter alia, honest services mail fraud and honest services wire fraud, and the surgical services he provided to his patients were a fundamental part of the scheme.  A conspiracy to engage in honest services mail fraud and honest services wire fraud undoubtedly “relates” to “fraud.”  Petitioner’s conspiracy yielded bribes and kickbacks totaling more than $600,000 and unquestionably, at a minimum, related to fraud, theft, breach of fiduciary responsibility, or other financial misconduct.  See 42 U.S.C. § 1320a-7(a)(3).  Further, the felony offense was in connection with the delivery of health care items or services, with Petitioner “participat[ing] in a scheme to defraud patients of their right to honest services by accepting bribes and kickbacks paid to induce him to refer patients to Pacific Hospital for spinal surgeries and other medical services.”  IG Ex. 3 at 13.  Exclusion is mandated pursuant to 42 U.S.C. § 1320a-7(a)(3). 

Congress, through enactment of the Act, determined that an individual who has been convicted of a felony offense under such circumstances must be excluded from federal health care programs for no less than five years, and it afforded neither the IG nor an ALJ the discretion to impose an exclusion of a shorter duration.  42 U.S.C. § 1320a-7(c)(3)(B).  I cannot shorten the length of the exclusion to a period of less than five years

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because I do not have authority to “[f]ind invalid or refuse to follow Federal statutes or regulations.”  42 C.F.R. § 1005.4(c)(1).  Exclusion is required under section 1320a‑7(a)(3), and therefore Petitioner must be excluded for a minimum of five years.

12.  A minimum period of exclusion for 10 years is not unreasonable based on the presence of two aggravating factors and no mitigating factors.

The IG has the discretion to impose an exclusion longer than the minimum period when aggravating factors are present.  See 42 C.F.R. § 1001.102.  The IG increased the minimum exclusion period from five years to 10 years based on the presence of two aggravating factors.  IG Ex. 1 at 1-2.  The DAB has explained than an ALJ is “obliged to determine whether [an] exclusion [falls] ‘within a reasonable range’ given the evidence . . . concerning the relevant aggravating and mitigating factors.”  Andrew Louis Barrett, DAB No. 2887 at 7 (2018).  

The IG argues that the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more, occurring from approximately February 2008 through June 2013.  IG Ex. 1 at 1; 42 C.F.R. § 1001.102(b)(2).  The IG also argues that the sentence imposed included incarceration, specifically, 15 months of incarceration.  IG Ex. 1 at 1; 42 C.F.R. § 1001.102(b)(5).  The IG bears the burden of persuasion with respect to aggravating factors, and Petitioner bears the burden of persuasion with respect to mitigating factors.  42 C.F.R. § 1005.15(c).  Petitioner does not argue that either aggravating factor is inapplicable.  Nor does Petitioner argue that application of the two aggravating factors yielded an exclusion that is unreasonable in length.  Petitioner focuses his arguments on why he believes exclusion is inappropriate, but he does not substantively address, either factually or legally, the IG’s lengthening of the exclusion to 10 years based on the regulatory factors found at 42 C.F.R. § 1001.102.  

Petitioner does not dispute the length of the acts that resulted in his felony conviction, and the plea agreement reports that Petitioner engaged in a conspiracy for more than five years between February 2008 and May 2013.  IG Ex. 3 at 10.  The IG properly considered as an aggravating factor that Petitioner engaged in the acts that resulted in his felony conviction for a period of one year or more.  42 C.F.R. § 1001.102(b)(2); see, e.g., Laura Leyva,DAB No. 2704 (2016) (determining that nearly two-and-a-half-year duration of conduct was an aggravating factor). 

With regard to second aggravating factor that Petitioner’s sentence included incarceration, the uncontroverted evidence demonstrates that Petitioner was sentenced to a substantial period of incarceration of 15 months for his offense.  IG Ex. 4 at 1; see 42 C.F.R. § 1001.102(b)(5).  The IG properly considered the 15-month length of imprisonment to be an aggravating factor in this case.  See Jason Hollady, M.D., DAB

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No. 1855 at 12 (2002) (stating that even a nine-month period of incarceration was “relatively substantial”).  

Evidence of aggravation may be offset by evidence of mitigation if it relates to one of the factors set forth at 42 C.F.R. § 1001.102(c).  I am not able to consider evidence of mitigation unless one or more of the enumerated aggravating factors listed in 42 C.F.R. § 1001.102(b) justifies an exclusion of longer than five years.  42 C.F.R. § 1001.102(c).  
Petitioner has not argued that any mitigating factors are applicable, and the record does not otherwise indicate the presence of any mitigating factors. 

Petitioner committed a serious felony offense over a lengthy period of more than five years, and he received a significant sentence of incarceration as a consequence of his criminal conduct.  In the absence of any claims to the contrary, I conclude that the imposition of a minimum period of exclusion of 10 years is not unreasonable.  See 42 C.F.R. § 1001.2007(a). 

13.  The effective date of Petitioner’s exclusion is January 19, 2022.  

The effective date of the exclusion, January 19, 2022, is 20 days after the date of the IG’s December 30, 2021 letter and is established by regulation (42 C.F.R. § 1001.2002(b)); I am bound by that regulation.  42 C.F.R. § 1005.4(c)(1). 

V.    Conclusion

For the foregoing reasons, an exclusion from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of 10 years, effective January 19, 2022, is not unreasonable.

1. Petitioner claims that he treated patients who did not have health insurance and treated “unfunded patients,” for whom he reduced fees.  P. Ex. 11 at 2.  Petitioner also performed a de minimus number of workers’ compensation cases.  P. Ex. 11 at 2.  Petitioner further claimed he made “a written disclosure to patients.”  P. Ex. 11 at 2-3; see P. Ex. 12 (photograph of framed document).  Even accepting these statements as true, these statements neither offer evidence against the imposition of an exclusion nor address any aggravating or mitigating factors affecting the length of the exclusion.
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2. My findings of fact and conclusions of law are set forth in italics and bold font.
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3. While there are slight differences in the wording of Section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical and I refer to them interchangeably.  I further note that the Secretary of the Department of Health and Human Services has delegated to the IG the authority “to suspend or exclude certain health care practitioners and providers of health care services from participation in these programs.”  48 Fed. Reg. 21,662 (May 13, 1983); see also 42 C.F.R. § 1005.1.
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4. As evidence of this “written disclosure” to patients, Petitioner submitted a photograph of a framed document, entitled “DISCLOSURE,” that was apparently posted in an unspecified location during an unspecified timeframe.  P. Ex. 12.  Aside from a lack of information regarding how Petitioner disseminated this document to his patients, the document itself does not address any of the affiliations or compensation agreements (i.e., the “bribes” and “kickbacks”) outlined in the plea agreement.  P. Ex. 12.  The document broadly states that Petitioner and the practice “provide contract billing/collections/negotiation services for a number of professionals and entities, including independently contracted providers and health care facilities where you may have had or are recommended to have treatment.”  P. Ex. 12.
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5. Petitioner does not claim that he provided each patient with a copy of the disclosure notice, and the evidence indicates that he made the purported written disclosure through posted signage.  See P. Exs. 11, 12.
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