Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Ahmed El Soury,
(OI File No. 2-09-40518-9),
The Inspector General.
Docket No. C-18-856
Decision No. CR5199
Petitioner, Ahmed El Soury, was a physician who practiced medicine in the State of New York. He accepted bribes in return for referring blood specimens to a specific laboratory, and was convicted on one felony count of conspiracy to violate the Federal Anti-Kickback Statute and Travel Act and to defraud patients of honest services. Based on his conviction, the Inspector General (IG) has excluded him for ten years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(1) of the Social Security Act (Act). Petitioner concedes that he must be excluded for a minimum period of five years but challenges the length of his exclusion beyond that.
For the reasons discussed below, I find that the ten-year exclusion falls within a reasonable range.
In a letter dated March 30, 2018, the IG advised Petitioner El Soury that, because he had been convicted of a criminal offense related to the delivery of an item or service under
Medicare or a state healthcare program, the IG was excluding him from participating in Medicare, Medicaid, and all federal health care programs for a period of ten years. The letter explained that section 1128(a)(1) of the Act authorizes the exclusion. IG Exhibit (Ex.) 1.
Petitioner timely requested review.
The IG has submitted its written arguments (IG Br.) and seven exhibits (IG Exs. 1-7). In the absence of any objections, I admit into evidence IG Exs. 1-7. Petitioner submitted his written argument (P. Br.).
The parties agree that an in-person hearing is not necessary in order to resolve this case. IG Br. at 13; P. Br. at 4. Petitioner also concedes that he was convicted of crimes related to the delivery of an item or service under Medicare or a state healthcare program and must therefore be excluded from program participation for at least five years. P. Br. at 1, 2.
Based on the aggravating factors and no mitigating factor, a ten-year exclusion is reasonable.1
Section 1128(a)(1) mandates that the Secretary of Health and Human Services exclude an individual or entity that 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).
In this case, Petitioner El Soury was licensed to practice medicine in the State of New York. IG Ex. 2 at 4. He conspired with a New Jersey clinical laboratory, Biodiagnostic Laboratory Services, LLC, to refer to the lab blood specimens from his Medicare and private insurance patients in return for monthly bribe payments. IG Ex. 2 at 1, 4-5. He made the referrals, accepted the bribes, and did not tell his patients about the scheme. IG Ex. 2 at 5.
Petitioner pled guilty in federal court to one felony count of conspiracy to violate the Federal Anti-Kickback Statute and Travel Act and to defraud patients of honest services (18 U.S.C. § 371). IG Ex. 3. The court accepted his plea and entered judgment against him on November 8, 2017. IG Ex. 4.
The Court sentenced Petitioner to serve 33 months in prison, followed by one year of supervised release. It ordered him to pay an assessment of $100; a fine of $7,500; and to forfeit $66,730, as set forth in the Consent Judgment of Forfeiture filed with the Court. IG Ex. 4 at 1, 2-3, 7, 8; IG Ex. 5.
Because he was convicted of a program-related crime, Petitioner must be excluded for at least five years. Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a); see P. Br. at 2. I now consider whether the length of the exclusion, beyond five years, falls within a reasonable range.
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 resulting in the conviction, or similar acts, caused a government program or another entity financial losses of $50,000 or more; 2) the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; and 3) the sentence imposed by the court included incarceration. 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.
Program financial loss (42 C.F.R. § 1001.102(b)(1)). In the Consent Judgment of Forfeiture, Petitioner admitted receiving $66,730 in profits from his crime. IG Ex. 5 at 1. By itself, this justifies increasing the period of his exclusion beyond the five-year minimum. But Petitioner's profits represented a fraction of the program losses. His referrals allowed the conspiring laboratory to collect more than $650,000 from Medicare and private insurers. IG Ex. 2 at 5. Thus, Petitioner's actions resulted in program financial losses much greater than the threshold amount for aggravation.2
Duration of crime (42 C.F.R. § 1001.102(b)(2)). Petitioner's criminal acts were committed over a period of more than two years - beginning March 2011 and continuing until April 2013. IG Ex. 2 at 5. The Departmental Appeals Board has sustained significant increases in the period of exclusion based on wrongful acts that were committed for even just "'slightly more' than the one-year minimum standard." Jeremy Robinson, DAB No. 1905 at 12 (2004) (citing Donald A. Burstein, Ph.D., DAB No. 1865 at 12 (2003)).
Incarceration (42 C.F.R. § 1001.102(b)(5)). The criminal court sentenced Petitioner to a substantial period of incarceration - 33 months. IG Ex. 4 at 2. While any period of incarceration justifies increasing the period of exclusion, the 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 a more serious offense. See Robinson, DAB No. 1905 (characterizing a nine-month incarceration as "relatively substantial"); Jason Hollady, M.D., DAB No. 1855 at 12 (2002); 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 (2006), aff'd, DAB No. 2061 (2007) (finding that six months home confinement justifies increase in length of exclusion).
Mitigating factor. 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 $1,500; 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).
The IG found no mitigating factors, and Petitioner does not claim that one exists.
Finally, Petitioner complains that he did not receive, in advance of his exclusion, a notice of the IG's intent to exclude him. According to Petitioner, he no longer resided at the address to which the notice was sent because he went to prison on the date the notice was mailed. The regulations provide that, if the IG proposes to exclude an individual, he will send, to that individual, a written notice of his intent, the basis for the exclusion, and its potential effect. Within 30 days of receipt (assuming receipt of the notice five days after the date on the notice), the individual may submit documentary evidence and written arguments concerning whether the exclusion is warranted. 42 C.F.R. § 1001.2001(a).
The IG confirmed with the Bureau of Prisons that Petitioner was not yet in the system as of January 17. The following day, he sent the notice of intent, and, apparently, it was not returned. IG Exs. 6, 7. Based on this timing, it is entirely possible that Petitioner did not receive the IG's notice of intent to exclude him. However, nothing in the regulations invalidates a subsequent exclusion based on the individual not receiving a notice of intent. Brian Bacardi, D.P.M., DAB No. 1724 (2000). Nor has Petitioner lost any opportunity to show why he should not be excluded. In this de novo proceeding he has had the opportunity to submit documentary evidence and written arguments concerning whether the exclusion is warranted. Id.
For more than two years, Petitioner accepted bribes from his co-conspirators. His felonious conduct cost Medicare and private insurers substantial amounts of money. Because his crimes were so serious, the Court sentenced him to prison. No mitigating
factors offset these significant aggravating ones. The IG thus reasonably determined that Petitioner poses a significant threat to program integrity.
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. Joann Fletcher Cash, DAB No. 1725 at 7 (2000) (citing 57 Fed. Reg. 3298, 3321 (1992)). I find that the ten-year exclusion falls within a reasonable range.
Carolyn Cozad Hughes Administrative Law Judge
1. I make this one finding of fact/conclusion of law.
- back to note 1 2. Until February 13, 2017, a $5,000 program loss was considered an aggravating factor, but this amount has been increased. 82 Fed. Reg. 4100, 4103, 4112 (Jan. 12, 2017). I apply the amount in effect at the time the IG imposed Petitioner’s exclusion (March 30, 2018).
- back to note 2