Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Gregory D. Wells, M.D., |
DATE: December 15, 2000 |
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The
Inspector General
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Docket No.C-00-727 Decision No. CR723 |
DECISION | |
I sustain the determination of the Inspector
General (I.G.) to exclude Petitioner, Gregory D. Wells, M.D., from participating
in Medicare, Medicaid, and all other federally-funded health care programs
for a minimum period of 15 years. Petitioner was convicted of a criminal
offense related to the delivery of items or services under the Kentucky
Medicaid program. An exclusion of 15 years is not unreasonable based on
the presence of aggravating factors and the absence of any mitigating factors. I. Background Petitioner is a physician. On May 31, 2000, the I.G. notified
Petitioner that he was being excluded pursuant to section 1128(a)(1) of
the Social Security Act (Act). The I.G. told Petitioner that he was being
excluded for a minimum of 15 years. The I.G. made note of the fact that
Petitioner had previously been excluded for a period of seven years pursuant
to section 1128(b)(3) of the Act. The I.G. told Petitioner that the 15-year
exclusion that she was now imposing would run concurrently with the previously
imposed seven-year exclusion. Petitioner requested a hearing and the case was assigned
to me for a hearing and a decision. I held a prehearing conference at
which the parties advised me that they agreed that the case could be heard
and decided based on their written submissions. The I.G. submitted a brief
and a reply brief along with seven proposed exhibits (I.G. Ex. 1 - I.G.
Ex. 7). Petitioner submitted a brief. Petitioner did not submit a reply
brief nor did Petitioner submit any proposed exhibits. Petitioner did
not object to my receiving into evidence any of
the I.G.'s proposed exhibits. Therefore, I receive into evidence I.G.
Ex. 1 - I.G. Ex. 7. II. Issues, findings of fact and conclusions of
law
The issues in this case are whether:
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 separately numbered heading. I discuss each Finding in detail.
Section 1128(a)(1) of the Act mandates the exclusion of
any individual who is convicted of a criminal offense related to the delivery
of an item or service under a federally-funded health care program. As
a matter of law, the crime of defrauding a State Medicaid program via
the filing of a false claim for a fictitious service is a program-related
crime within the meaning of section 1128(a)(1) of the Act. Greene v.
Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990); Alan J. Chernick,
D.D.S., DAB CR434 at 5 (1996). The evidence in this case unequivocally establishes that
Petitioner was convicted of defrauding the Kentucky Medicaid program.
On December 10, 1997, a Kentucky grand jury indicted Petitioner under
State law for devising a scheme or planning a scheme or artifice to obtain
benefits with a value of $10,000 or more from the Kentucky Medical Assistance
Program (the Kentucky Medicaid program) by means of false or fraudulent
representations. I.G. Ex. 1 at 1. Petitioner was charged additionally
with intentionally engaging in conduct which advanced his criminal scheme
or artifice. Id. This conduct consisted of charging for services
to Medicaid recipients while knowing that the services either were not
reimbursable by the Kentucky Medicaid program or that the services had
not been provided. Id. On October 4, 1999, Petitioner agreed to
plead guilty to the charge and, on November 9, 1999, Petitioner was found
guilty. I.G. Ex. 2 at 1 - 3; I.G. Ex. 3 at 1 - 4.
Section 1128(a)(1) of the Act mandates the I.G. to exclude
any individual who is convicted of a criminal offense that is related
to the delivery of an item or service under Medicare or a State Medicaid
program. The minimum term of a mandatory exclusion is five years. Act,
section 1128(c)(3)(B). Here, Petitioner was convicted of criminal offenses related to the delivery of items or services under the Kentucky Medicaid program. See Finding 1. The I.G. is, therefore, required to exclude Petitioner for a term of at least five years.
Section 1128 of the Act is remedial. Its purpose is to
protect federally funded health care programs and the beneficiaries and
recipients of those programs from individuals who are untrustworthy. An
exclusion that is imposed pursuant to section 1128 is reasonable if it
comports with the Act's remedial purpose. The Secretary has published regulations which govern the
length of exclusions that are imposed pursuant to section 1128 of the
Act. 42 C.F.R. Part 1001. The regulation which establishes criteria to
govern the length of exclusions that are imposed pursuant to section 1128(a)(1)
is 42 C.F.R. § 1001.102. This regulation identifies "aggravating" factors
which may be used, if present in a case, as a basis to lengthen an exclusion
beyond the five-year minimum period and "mitigating" factors which may
be used, if present in a case, to offset any aggravating factors that
are established. The regulation makes it clear that only those
factors that it identifies as either aggravating or mitigating may be
considered to determine whether an exclusion of more than five years is
reasonable in a case involving section 1128(a)(1) of the Act. The aggravating
and mitigating factors thus operate as rules of evidence in such a case.
Evidence which does not relate to an identified aggravating or mitigating
factor is irrelevant to determining the length of an exclusion and may
not be considered.
Any individual who is excluded pursuant to section 1128
of the Act has a right to a hearing before an administrative law judge.
Such a hearing is conducted pursuant to section 205(b) of the Act. That
section has been interpreted on numerous occasions to require a de novo
hearing and an independent decision by the administrative law judge.
That is not to suggest that the administrative law judge
is free to ignore entirely the determination that is made by the I.G.
The I.G. has expertise in making exclusion determinations and her determinations
deserve to be respected. The I.G.'s determination should be sustained
as reasonable if that determination falls within a reasonable range of
possible exclusions. However, the administrative law judge must evaluate
independently the evidence relating to the aggravating and mitigating
factors that are set forth in the regulations. If the administrative law
judge concludes, based on his or her independent and de novo evaluation
of the evidence, that the exclusion imposed by the I.G. departs significantly
from that which the I.G. decides is reasonable, then the administrative
law judge may modify the length of the exclusion to assure that the exclusion
falls within a reasonable range of exclusions.
The I.G. established the following three aggravating factors
to be present in this case:
Petitioner pled guilty to engaging in a criminal scheme
to defraud the Kentucky Medicaid program, a government health care program,
of more than $10,000. In agreeing to plead guilty Petitioner admitted
that the total loss to the Kentucky Medicaid program from his scheme exceeded
$10,000. I.G. Ex. 2 at 1.
Petitioner was charged with, and pled guilty to, engaging
in a criminal scheme that transpired over a period which began on January
1, 1992, and which ran through June 30, 1997. I.G. Ex. 1 at 1; I.G. Ex.
2 at 1. This is a period which spans five and one-half years.
On July 14, 1998, Petitioner pled guilty to ten criminal
offenses in the United States District Court for the Eastern District
of Kentucky. I.G. Ex. 5 at 1. He was found guilty to offenses involving
the following crimes: conspiring to acquire and obtain controlled substances
by fraud, misrepresentation, deception, and subterfuge; intentionally
acquiring and obtaining controlled substances by misrepresentation, fraud,
deception, and subterfuge; and distributing, dispensing, or possessing
with intent to distribute or dispense, a controlled substance. On April
30, 1999, on the basis of these convictions, the I.G. excluded Petitioner
from participating in Medicare, Medicaid, and other federally-funded health
care programs for a period of seven years. I.G. Ex. 6. Additionally, effective
September 28, 1998, Petitioner agreed to surrender his license to practice
medicine in Kentucky. I.G. Ex. 7. Petitioner's agreement to surrender
his license emanated from his conviction in United States District Court
of controlled substance-related crimes. I.G. Ex. 5, Ex. 7 at 1 - 2. Petitioner's criminal conviction in United States District
Court, his exclusion based on that conviction, and his surrender of his
license to practice medicine comprise criminal or administrative sanctions.
All of these actions predate his conviction under Kentucky law for defrauding
the Kentucky Medicaid program.
Petitioner did not allege or prove the presence of any
of the mitigating factors that are identified at 42 C.F.R. § 1001.102(c).
Petitioner offered several arguments to challenge the I.G.'s exclusion
determination. However, none of these arguments relate to any of the possible
mitigating factors that are identified in the regulation. I will discuss
Petitioner's arguments below at Finding 7.
I find that an exclusion of 15 years is not unreasonable
in this case. An exclusion of 15 years is reasonably related to the statutory
purpose of protecting federally-funded health care programs and their
beneficiaries and recipients from untrustworthy individuals. Petitioner is a highly untrustworthy individual. He perpetrated
multiple crimes. Petitioner engaged in protracted fraud against the Kentucky
Medicaid program over a lengthy period of time (five and one-half years).
He succeeded in defrauding that program of substantial funds (more than
$10,000). The duration and extent of Petitioner's crimes against the Kentucky
Medicaid program show that his criminal conduct was not isolated or random
episodes. Rather, it comprised a pattern of unlawful activity. Moreover, Petitioner's crimes against the Kentucky Medicaid
program were but a part of a broader scheme of criminal activity by Petitioner.
At the same time that Petitioner was defrauding the Kentucky Medicaid
program, he was also committing multiple crimes involving unlawful possession
or distribution of controlled substances. Petitioner argues that an exclusion of only five years
in this case is reasonable in that it is symmetrical with the actions
that were taken against him as a consequence of his conviction of federal
crimes in United States District Court. According to Petitioner, the State
criminal charges to which he pled guilty and which are the basis for the
exclusion that is at issue in this case grew out of identical facts which
led to his conviction in United States District Court. Petitioner asserts
that he was excluded only for a period of five years as a consequence
of the federal conviction. Petitioner argues that it is reasonable to
exclude him here only for five years in that there is no evidence of criminal
conduct by Petitioner in this case which is distinguishable from the criminal
conduct that resulted in his previous exclusion. I do not find this argument to be persuasive. To begin
with, it is not factually accurate. Petitioner is incorrect in asserting
that he was excluded only for a period of five years as a consequence
of his conviction for controlled substance-related crimes. Petitioner
was excluded for a period of seven years. More importantly, Petitioner
is incorrect in arguing that the criminal conduct which is the basis for
the exclusion that is at issue here - fraud against the Kentucky Medicaid
program - is the identical conduct which was the basis for his previous
exclusion. It is possible that Petitioner may have engaged in a pattern
of conduct which simultaneously included unlawful trafficking in controlled
substances and fraud against the Kentucky Medicaid program. However,
the factual elements of Petitioner's fraud are not identical to the factual
elements of Petitioner's controlled substance-related crimes. That is
made evident by the State indictment that was filed against Petitioner
and by his conviction in United States District Court. I.G. Ex. 1; I.G.
Ex. 5. The fact that Petitioner's crimes may have been, in some
way, related does not make Petitioner more trustworthy. The magnitude
and seriousness of Petitioner's crimes are made more evident when the
federal and State charges and convictions are read together. The
full extent of Petitioner's criminal activity becomes evident when Petitioner's
controlled substance-related crimes and his fraud are seen in context.
That the I.G. originally excluded Petitioner for seven years based on
his controlled substance-related convictions does not suggest that a lengthier
exclusion is unreasonable in light of Petitioner's subsequent conviction
for fraud against the Kentucky Medicaid program. The conviction for fraud,
when considered with Petitioner's previous controlled substance-related
conviction, demonstrates Petitioner's overall pattern of crimes to be
more serious and shows him to be more untrustworthy than if Petitioner's
controlled substance-related conviction is viewed in isolation. Examining
only a subset of Petitioner's crimes may lead to the inaccurate conclusion
that Petitioner is more trustworthy than is apparent when all of Petitioner's
crimes are considered. Petitioner argues also that an exclusion for 15 years
is unreasonably punitive because it will deprive Petitioner of the ability
to practice his profession and will deprive patients of needed medical
care in an area of the United States (Appalachia) where physicians are
in short supply. I do not find either branch of this argument to be persuasive.
First, the possibility that an exclusion may adversely impact on Petitioner's
ability to practice his profession is irrelevant if, in fact, the exclusion
is justified on remedial grounds. As I have discussed above, an exclusion
of 15 years is remedial in this case. Second, the adverse impact that
an exclusion may have on the access to medical care of the residents of
Appalachia is not an issue that I may consider in deciding whether an
exclusion is reasonable. Potential adverse impact of an exclusion on a
local population is not a mitigating factor that I may consider under
42 C.F.R. § 1001.102(c). I note that the I.G. is authorized in the appropriate circumstance to grant a request from a State health care program, such as the Kentucky Medicaid program, to waive an exclusion. 42 C.F.R. § 1001.1801. However, I have no authority to order the I.G. to consider or to grant such a waiver. I also note that Petitioner has presented no evidence to support his claim that residents of Appalachia will be affected adversely by his exclusion. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge |
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