Denver David Tackett, DMD, DAB CR5982 (2021)

DECISION

I affirm the 12-year exclusion imposed by the Inspector General (IG) of the Department of Health and Human Services on Petitioner. 

I.     Background

In a May 28, 2021 notice, the IG informed Petitioner that she was excluding him from participation in all federal health care programs under Social Security Act (Act) § 1128(a)(1) (42 U.S.C. § 1320a-7(a)(1)) for a minimum period of 12 years.  The notice specified that the basis for the exclusion was Petitioner’s conviction in the United States District Court for the Eastern District of Kentucky (District Court) of a criminal offense related to the delivery of an item or service under the Medicare or a state health care program, including the performance of management or administrative services relating to the delivery of items or services.  IG Ex. 1.  The notice stated that the exclusion would be effective 20 days from the date of the notice.  IG Ex. 1. 

The exclusion notice also specified the following four aggravating factors that the IG used to support the 12-year length of exclusion:

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1.  The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more entities of $50,000 or more.  (The entire amount of financial loss to such government agencies or programs or to the other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made.)  The court ordered [Petitioner] to pay approximately $70,000 in restitution. 

2.  The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.  The acts occurred from about 2003 to about September 2018. 

3.  The sentence imposed by the court included incarceration.  The court sentenced [Petitioner] to 4 months of incarceration followed by 6 months of home detention with electronic monitoring. 

4.  The individual or entity 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 the imposition of the exclusion.  The Kentucky Board of Dentistry suspended [Petitioner’s] license to practice as a dentist. 

IG Ex. 1 at 2.

Petitioner, through counsel, filed a request for a hearing on July 27, 2021.  Petitioner stated in the request for hearing that he did not contest the basis for the mandatory exclusion but appealed the length of the exclusion as unreasonable.  On July 29, 2021, the Civil Remedies Division acknowledged receipt of the hearing request, gave notice of a prehearing conference, and issued my Standing Prehearing Order (SPO).

On August 13, 2021, I held a telephonic prehearing conference, which is summarized in my August 13, 2021 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  Among other things, I discussed with the parties that Petitioner only appealed the length of the exclusion and that the minimum length of exclusion would be five years.

The IG submitted her prehearing exchange, which was composed of a brief (IG Br.) and six proposed exhibits.  Petitioner submitted a brief (P. Br.) and an unmarked exhibit.  In his brief, Petitioner indicated that he wanted to testify at a hearing in this case and that he

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wanted the expert witness from his criminal case to testify as well.  The IG filed a reply brief (IG Reply) in which the IG objected to Petitioner’s proposed witnesses and unmarked exhibit. 

II.    Issues

Petitioner does not dispute that he was convicted of a criminal offense for which a mandatory exclusion under 42 U.S.C. § 1320a-7(a)(1) applies.  Therefore, the only issue in this case is whether the 12-year length of exclusion imposed by the IG is unreasonable. 

III.   Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007, 1005.2.

IV.   Rulings, Admission of Evidence, and Decision on the Record

Petitioner did not object to any of the IG’s proposed exhibits.  Therefore, I admit IG Exhibits 1 through 6 into the record.  SPO ¶ 12; see 42 C.F.R. § 1005.8(c). 

The IG objected to Petitioner’s request that two witnesses testify at a hearing and to the unmarked exhibit that Petitioner submitted.  IG Reply at 1.  Petitioner requested that I hold a video hearing so that Petitioner and Dr. Karlene Guasteferro could testify.  P. Br. at 4.  Petitioner stated he would explain in his testimony why he removed teeth from patients that did not have to be removed and “[t]o the extent necessary, Dr. Guasteferro will explain that [Petitioner] practiced good dentistry and will confirm the poor dental hygiene of his patients” and “will also address the practice of dentistry in disadvantaged and rural communities to provide context” for Petitioner’s actions.  P. Br. at 5.  Petitioner indicated that the unmarked exhibit he submitted is a PowerPoint presentation explaining the results of Dr. Guasteferro’s review of every dental file provided by the Government in United States v. Denver D. Tackett.  P. Br. at 5; DAB E-File Document #8a. 

The IG objected to Petitioner’s proposed witnesses and to the unmarked exhibit because the testimony would impermissibly collaterally attack Petitioner’s criminal conviction and is not relevant to any mitigating factors listed in the regulations.  IG Reply at 7-10.  The IG also objected to Petitioner’s witness testimony because Petitioner failed to provide it as a written statement under oath or as a declaration made under penalty of perjury as required by the SPO. 

I sustain the IG’s objections and do not permit Petitioner and his witness to testify at an evidentiary hearing in this proceeding.  Petitioner failed to provide his testimony in written form either as an affidavit under oath or a written declaration, as ordered.  SPO ¶ 10; 42 C.F.R. § 1005.16(b).  This alone is sufficient reason for me to exclude

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Petitioner’s testimony.  Ilya Kogan, DAB No. 3034 at 4-6 (2021); James Brian Joyner, M.D., DAB No. 2902 at 9-11 (2018); Civil Remedies Division Procedures (CRDP) § 19(d) (permitting an administrative law judge to issue a decision on the record when a party failed to provide written testimony from witnesses when ordered to do so.).

Further, the IG is correct that Petitioner’s explanation as to why he unnecessarily removed his patients teeth does not provide evidence that aids in determining whether any of the regulatory aggravating and mitigating factors exist or in making a qualitative analysis of any of those factors.  42 C.F.R. § 1001.102; P. Br. at 2-4 (conceding existence of aggravating factors and that none of the regulatorily recognized mitigating factors are present).  Similarly, Dr. Guasteferro’s testimony and PowerPoint are irrelevant to the issue before me, which turns on the aggravating and mitigating factors listed in the regulations.  Dr. Guasteferro’s proposed testimony goes to the propriety of Petitioner’s dental care related to his criminal case.  However, I cannot consider or readjudicate matters resolved in the criminal case.  42 C.F.R. § 1001.2007(d).  I must exclude irrelevant evidence.  42 C.F.R. § 1005.17(c).  Therefore, I will not hear the testimony of Petitioner or his witness, and I exclude the unmarked exhibit. 

Because I have excluded the testimony of Petitioner and his witness, there are no witnesses to testify at an evidentiary hearing.  Therefore, I issue this decision based on the written record.

V.   Findings of Fact

1.  On April 11, 2019, a grand jury empaneled by the District Court indicted Petitioner on a variety of criminal counts.  IG Ex. 2.

2.  In Count 1, the Indictment charged that Petitioner, from on or about 2003 through on or about September 2018, executed a scheme or artifice to defraud one or more health care programs.  Specifically, Petitioner, a dentist, performed and submitted claims for dental procedures that were not reasonable or necessary, “unbundled” claims by submitting claims for services that were already included in another claim that he submitted, and submitted claims for payment for procedures that he did not actually perform.  IG Ex. 2 at 3-4.

3.  On April 26, 2019, the Kentucky Board of Dentistry immediately and temporarily suspended Petitioner’s dental license based on information received from the District Court.  IG Exs. 5-6.  This suspension is also considered indefinite.  IG Ex. 6 at 2.

4.  On August 25, 2020, Petitioner entered into a Plea Agreement in which he agreed to enter a guilty plea to Count 1 of the Indictment, charging a violation of 18 U.S.C. § 1347 (health care fraud).  The essential elements of Count 1 were:

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Petitioner knowingly and willfully executed a scheme to defraud a health care benefit program in connection with the payment for health care benefits, items, or services; the scheme included a material misrepresentation or concealment of a material fact; and Petitioner had the intent to defraud.  IG Ex. 3 at 1.

5.  In the Plea Agreement, Petitioner conceded that “[d]uring the timeframe charged in Indictment,” Petitioner submitted claims to Kentucky Medicaid for dental procedures not reasonable and necessary, such as claims for surgical extractions when Petitioner had only performed simple extractions and claims for medically unnecessary alveoloplasty procedures that were related or incidental to one or more medically unnecessary extractions.  IG Ex. 3 at 2.  

6.  On December 16, 2020, the District Court issued a Judgment in Criminal Case in which the District Court adjudged Petitioner guilty of Health Care Fraud.  IG Ex. 4 at 1. 

7.  The District Court sentenced Petitioner to four months of imprisonment and three years of supervised release after imprisonment.  IG Ex. 4 at 2-3. 

8.  The District Court found that the total amount lost by the Kentucky Department of Medicaid was $70,012.48, and the District Court ordered Petitioner to pay that amount in restitution.  IG Ex. 4 at 6.

VI. Conclusions of Law and Analysis

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in all federally funded health care programs when that individual is convicted of a criminal offense related to the delivery of an item or service under the Medicare or Medicaid programs.  42 U.S.C. § 1320a-7(a)(1), (h)(1).  If an individual has been convicted of a crime that requires mandatory exclusion, then the Secretary must exclude the individual for at least five years.  42 U.S.C. § 1320a‑7(c)(3)(B).  To implement this provision, the Secretary established, by regulation, a list of aggravating and mitigating factors that must be considered when determining whether the length of a mandatory exclusion should exceed five years.  42 C.F.R. § 1001.102. 

In this case, the IG has the burden of proving, by the preponderance of the evidence, the existence of the aggravating factors alleged in the exclusion notice, and Petitioner has the burden of proving, also by a preponderance of the evidence, the existence of any mitigating factors Petitioner may alleged.  SPO ¶ 6; 42 C.F.R. § 1005.15(c), (d).  When reviewing the length of exclusion, an administrative law judge will uphold the length imposed by the IG unless it is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).

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As explained below, the record supports the IG’s mandatory exclusion in this case and the existence of the four aggravating factors identified in the exclusion notice.  There are no mitigating factors.  Based on a qualitative review of the factors, a 12-year exclusion is not unreasonable.

1.  The District Court found Petitioner caused $70,012.48 in loss to the Kentucky Medicaid program and ordered Petitioner to pay restitution in that amount to the Kentucky Department of Medicaid. 

The IG provided evidence that demonstrates the acts resulting in Petitioner’s criminal conviction caused, or were intended to cause, a financial loss to a government program of $50,000 or more.  42 C.F.R. § 1001.102(b)(1).  Specifically, in the Judgment in a Criminal Case, the District Court ordered Petitioner to pay total restitution in the amount of $70,012.48 to the Kentucky Department of Medicaid.  IG Ex. 4 at 6.  Petitioner conceded that the District Court ordered him pay restitution in an amount in excess of $50,000.  P. Br. at 2. 

I conclude that Petitioner caused financial loss through fraud to the Medicaid program that was $20,000 more than the minimum about to support an increased length of exclusion.  This amount of loss supports an increased length of exclusion over the minimum five years.  Petitioner caused a significant loss to a program meant to provide health care to the poor, thus endangering that program. 

2.  Petitioner’s acts that resulted in conviction, or similar acts, were committed for more than one year, i.e., from approximately 2003 through September 2018. 

The IG asserted that the aggravating factor found at 42 C.F.R. § 1001.102(b)(2) (i.e., the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more) was present in this case. 

Count 1 of the Indictment charged Petitioner with a scheme or artifice to defraud one or more health care benefit program(s) from on or about 2003 through on or about September 2018.  IG Ex. 2 at 3.  Petitioner admitted in the Plea Agreement that “[d]uring the timeframe charged in the Indictment,” Petitioner engaged in the fraudulent conduct described in Count 1 of the Indictment.  IG Ex. 3 at 1-2. 

Petitioner concedes that the Indictment alleged the Petitioner’s criminal acts occurred from 2003 to 2018, but asserts that “pulling teeth at the request of patients that did not have to be removed and billing for the procedure” only occurred from 2014 to 2018.  P. Br. at 2. 

I conclude that Petitioner’s criminal conduct occurred for more than a year. Therefore, the IG proved the existence of this aggravating factor.

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Further, I find that Petitioner admitted in his Plea Agreement that his criminal conduct lasted from approximately 2003 through September 2018.  Petitioner cannot now contradict the clear admission of the timeframe in the Indictment. 

Finally, I conclude that health care fraud against the Medicaid program lasting approximately 15 years is an extraordinarily significant aggravating factor in this case.  The length of criminal conduct shows that Petitioner persistently committed health care fraud during a sizable portion of his career.  This factor supports an extremely lengthy exclusion.  

3.  The District Court sentenced Petitioner to 4 months of incarceration.

The District Court originally sentenced Petitioner to four months of imprisonment.  IG Ex. 4 at 2.  Petitioner concedes this is true.  P. Br. at 2.  Therefore, the IG proved that the aggravating factor at 42 C.F.R. § 1001.102(b)(5) is present in this case. 

Petitioner asserted that he was released after two months.  P. Br. at 2. 

The length of Petitioner’s prison sentence supports a lengthy exclusion.  A prison sentence of as little as nine months is considered to be relatively substantial for exclusion purposes. Jason Hollady, M.D., DAB No. 1855 at 12 (2002).  Petitioner’s 4-month sentence is less than half of that amount of time.  However, it still shows the seriousness of Petitioner’s offense and weighs in favor of not allowing Petitioner to return to federal health care program participation too soon.  Although Petitioner asserted that he was released early from prison, this does not alter the length of his sentence. 

4.  The Kentucky Board of Dentistry suspended Petitioner’s dental license based on the criminal conduct for which he was convicted. 

The IG asserted that Petitioner was subject to an adverse action by a state government agency or board that was based on the same set of circumstances that serves as the basis for the imposition of the exclusion.  The IG has shown that, on April 26, 2019, the Kentucky Board of Dentistry suspended Petitioner’s dental license based on information received from the District Court.  IG Exs. 5-6.  Petitioner conceded that his license was suspended but asserted that it should not be afforded any weight because it is based on the indictment.  P. Br. at 3. 

I conclude that the aggravating factor of 42 C.F.R. § 1001.102(b)(9) is present in this case.  Further, Petitioner did not submit any evidence or assert in briefing that his license has been restored.  The record shows that the suspension is indefinite.  IG Ex. 6 at 2.  I consider this suspension, which appears to significantly exceed Petitioner’s time of

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incarceration, to support an exclusion that is much lengthier than the minimum five-year exclusion. 

5.  Petitioner did not prove the existence of any mitigating factors that would justify a reduction in the length of exclusion imposed by the IG. 

Petitioner conceded that he cannot prove the existence of any of the mitigating factors listed in 42 C.F.R. § 1001.102(c).  P. Br. at 4. 

6.  The 12-year length of Petitioner’s exclusion is not unreasonable. 

As stated above, Petitioner conceded the aggravating factors stated in the IG notice of exclusion and that there are no mitigating factors.  Petitioner primarily argued for a reduction in the length of exclusion by asserting that his extractions of healthy teeth were at the request of his patients and that his patient population suffers from poor dental hygiene and limited access to dental care.  Petitioner also asserted that his dental records were used to prove the criminal case against him, which shows that he kept truthful records of the healthy teeth he extracted.  Finally, Petitioner asserted that he did not have a role in the billing at issue in this case.  P. Br. at 3-4. 

I cannot overlook or mitigate the aggravating circumstances in this case based on Petitioner’s arguments above.  Further, Petitioner’s effort to deflect blame for the fraudulent billing in the criminal case conflicts with this Plea Agreement, where he admitted that he “knowingly and willfully caused claims to be submitted for .  . . medically unnecessary procedures . . . to Kentucky Medicaid.”  IG Ex. 3 at 2.  This is the second time Petitioner contradicted the Plea Agreement in this proceeding.  

Petitioner’s criminal conduct shows that he lacks trustworthiness to participate in federal health care programs.  Further, Petitioner’s efforts to assert facts contrary to his Plea Agreement reinforce this lack of trustworthiness.  Based on my analysis above, I cannot conclude that an increase in seven years beyond the minimum mandatory five-year exclusion length is unreasonable.  

VII.  Conclusion

I affirm the IG’s determination to exclude Petitioner from participating in all federal health care programs under 42 U.S.C. § 1320a-7(a)(1) for 12 years.