John N. Crawford, Jr., M.D., DAB No. 1324 (1992)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

In the Case of:
John N. Crawford, Jr., M.D., 
Petitioner,
- v. - 
The Inspector General.  

DATE: April 9, 1992  
Docket No. C-364  
Decision No. 1324


        FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
     DECISION

John N. Crawford, Jr., M.D. (Petitioner) requested review of an October
18, 1991, decision by Administrative Law Judge (ALJ) Steven T. Kessel
affirming Petitioner's exclusion from participation in Medicare and
Medicaid for six years.  See John N. Crawford, Jr., M.D., DAB CR160
(1991) (ALJ Decision).

Petitioner's exclusion was based on section 1128(a)(1) of the Social
Security Act (Act) (42 U.S.C. .1320a-7).  Section 1128(a)(1) mandates
exclusion from Medicare and Medicaid for any individual or entity
"convicted of a criminal offense related to the delivery of an item or
service under title XVIII or under any State health care program." 1/
Section 1128(c)(3)(B) establishes that "[i]n the case of an exclusion
under subsection (a), the minimum period of exclusion shall be not less
than five years . . . ."

Based on the following analysis, we affirm the ALJ Decision.

BACKGROUND

Generally, this background summarizes the findings of fact and
conclusions of law (FFCLs) upon which the ALJ based his decision.  See
ALJ Decision at 2-4.  The following facts are undisputed.  Petitioner's
medical practice included treating patients in their homes.  In April
1987 a United States grand jury indicted Petitioner on 32 counts of
Medicare fraud (18 U.S.C. .1001) and 17 counts of mail fraud (18 U.S.C.
.1341).  In February 1990, Petitioner was convicted on 20 counts of
Medicare fraud and 5 counts of mail fraud.  Specifically, Petitioner was
convicted of knowingly submitting for Medicare reimbursement claim forms
containing false statements and representations concerning claimed
medical services.  Additionally, Petitioner was convicted of knowingly
causing Medicare reimbursement checks to be delivered to him by mail as
part of his scheme to unlawfully obtain Medicare reimbursement.
Beginning February 15, 1990, Petitioner was placed on probation for five
years and ordered not to practice any medicine involving Medicare or
Medicaid payments during that time. 2/

On March 22, 1991, the Inspector General notified Petitioner of his
exclusion from Medicare and Medicaid, for six years, based on his
conviction of a program- related crime as defined in section 1128(i) of
the Act (42 U.S.C. .1320a-7(a)(1)).  According to the Inspector
General's notice, the action was effective 20 days from the date of the
letter.  Petitioner timely appealed his exclusion to the ALJ.

The ALJ Decision affirming Petitioner's exclusion was based on 24 FFCLs.
Generally, the ALJ found that Petitioner's fraud included knowingly
presenting Medicare claims for services never provided to patients.  The
ALJ determined that these claims occurred over a two-year period and
resulted in a substantial pecuniary loss to Medicare.  Additionally, the
ALJ found that Petitioner's denial of wrongdoing and refusal to accept
responsibility for his conduct were not credible and established that he
was not trustworthy.  Consequently, a six year exclusion was needed to
protect federally-funded health care programs and their recipients and
beneficiaries from future harm by Petitioner.  ALJ Decision at 2-4.

The ALJ concluded that he did not have the authority to address the
constitutional issues raised by Petitioner in his appeal -- whether the
exclusion violated Petitioner's right against being placed in double
jeopardy and was an ex post facto application of the Act.  Id. at 4.
The ALJ did determine that he had the authority to rule on factual
premises and contentions of the parties, and to interpret laws,
regulations, and applicable court decisions.  The ALJ then concluded
that Petitioner's premises on the above constitutional arguments were
faulty as they both dealt with criminal and punitive issues while the
exclusion was solely a remedial civil penalty.

Petitioner's Exceptions

Petitioner has raised, on appeal, basically the same issues raised
before the ALJ:

1. Whether the mandatory exclusion is a penal rather than remedial
remedy and thus: (a) violates the double jeopardy clause of the United
States Constitution; and (b) is an unconstitutional ex post facto
application of the Act; and

2. Whether the six year period of exclusion is reasonable given the
evidence in the case.

Although Petitioner did not specifically identify them, we conclude from
his arguments that he took exception to the following FFCLs:

13.  Petitioner's denial that he ever presented false Medicare
reimbursement claims is not credible.

14.  Petitioner refuses to accept any responsibility for his wrongful
conduct.

15.  Petitioner's fraud against the Medicare program and his refusal to
acknowledge responsibility for such fraud establishes that he is not a
trustworthy provider of health care.

16.  The personal support and trust placed in Petitioner by friends and
associates does not establish that Petitioner is a trustworthy provider
of health care.

22.  An exclusion of six years is needed in this case to protect
federally-funded health care programs and their beneficiaries and
recipients from the commission of future harm by Petitioner.

23.  I do not have authority to decide whether the exclusion imposed and
directed against Petitioner by the I.G. violates Petitioner's
constitutional right against being placed in double jeopardy.

24.  I do not have authority to decide whether the exclusion imposed and
directed against Petitioner by the I.G. is an unconstitutional ex post
facto application of the Act.

ALJ Decision at 3-4. (Citations omitted.)

In support of his double jeopardy argument, Petitioner asserted that the
imposition of the six years mandatory exclusion by the Inspector General
is a punitive application of the Act, inasmuch as he has already been
punished for his crimes, among other things, by the five year probation
imposed by the judge in the criminal proceeding.  As the criminal case
probation and the Inspector General's exclusion overlap by approximately
four years, Petitioner argued that there has been a second punishment
and the resulting double jeopardy violates the Fifth Amendment of the
United States Constitution.

Petitioner's ex post facto argument is also rooted in the assumption
that the mandatory exclusion rises to the level of a criminal rather
than civil remedy.  Prior to August 18, 1987, section 1128 of the Act
provided for mandatory exclusion in the case of a conviction for a
program-related offense, but the period of exclusion was determined by
the Secretary.  However, the Act was amended effective August 18, 1987,
to provide a mandatory minimum period of exclusion of five years for
convictions of program-related crimes under section 1128(a)(1) (1987
Amendments). 3/  The essence of Petitioner's exception was that the 1987
Amendments significantly altered the provisions of the statute by
enhancing the penalty from a discretionary period to be determined by
the Secretary, to a mandatory period of at least five years.  Petitioner
asserted that imposition of the mandatory exclusion statute, as amended,
for offenses committed prior to its enactment violates the ex post facto
prohibition of Article I, section 10 of the United States Constitution.

Petitioner also argued that in refusing to reduce the six year
exclusion, the ALJ failed to consider mitigating evidence submitted to
establish Petitioner's trustworthiness.  This evidence consisted of
hundreds of letters and petitions in his support, and the fact that he
has had no alleged violations between 1986 and 1990.  Petitioner also
argued that the false claims were the result of inaccurate and
incomplete records rather than intentional wrongdoing.

ANALYSIS

Our standard of review on disputed issues of fact is "whether the ALJ's
decision is supported by substantial evidence" and on disputed legal
issues, whether "the ALJ's decision was "erroneous." 4/  As explained
below, we conclude that the ALJ's decision is not erroneous and is
supported by substantial evidence.

1.      Petitioner's exclusion was remedial and not criminal, and,
therefore, neither the double jeopardy clause nor the ex post facto
clause of the United States Constitution is applicable.

The ALJ properly determined that he did not have the authority to decide
constitutional issues.  Nevertheless, he considered arguments regarding
the applicability of the 1987 Amendments in deciding whether the
mandatory exclusion was appropriate and reasonable.  In doing so, the
ALJ ruled on the factual premises and contentions of the parties and
interpreted laws, regulations, and applicable court decisions.  See
Betsy Chua, M.D. and Betsy Chua, M.D., S.C., DAB 1204, at 5 (1991); Jack
W. Green, DAB 1078, at 17 (1989), aff'd, Greene v. Sullivan, 731 F.
Supp. 835 (E.D. Tenn. 1990) (Greene I).

Here, it is uncontested that Petitioner was "convicted" of a criminal
offense within the meaning of section 1128(a) of the Act, and that the
offense was "related to the delivery of an item or service" under the
Medicare program within the meaning of section 1128(a)(1) of the Act.
Under section 1128(c)(3)(B) of the Act the Secretary must impose a
five-year minimum period of exclusion.  See Greene I, 731 F.Supp. at
837-38; Napoleon S. Maminta, M.D., DAB 1135, at 14 (1990).  The
exclusion is statutory and the ALJ can not decrease that minimum time
period.  See Samuel W. Chang, DAB 1198, at 9 (1990). A. Double Jeopardy

With respect to the double jeopardy issue, Petitioner argued that if
either the purpose or effect of the exclusion is punitive, it
constitutes a violation of the double jeopardy clause under U.S. v.
Halper, 490 U.S. 435 (1985) (Halper).  He also had asserted in his Post
Hearing Brief that he had already been punished in the criminal case,
and the effect of the civil penalty is so extreme as to constitute a
second punishment.

On February 15, 1990, Petitioner was sentenced in the criminal
proceeding to six months of work release, 500 hours community service,
restitution of $6427, a peer review regarding ability to practice, and a
five year probation during which time he was prohibited from practicing
medicine involving Medicare and Medicaid Payments.  This latter
punishment, he argued, was duplicated by the six year exclusion imposed
by the Inspector General.  He asserted that the Inspector General
introduced no evidence to show that the latter exclusion was remedial
and related to protecting the government's interest, but was merely
punitive.  Relying on Halper, he argued that the exclusion cannot be
considered solely remedial but must be considered punishment or a
deterrent against future acts.  Petitioner also stated that he was in
conformance with the Medicare program between 1986 and 1990, and
therefore, the exclusion cannot serve a remedial purpose.

The impact of the double jeopardy clause on civil and criminal multiple
"punishments" was extensively reviewed in Halper.  There, the Supreme
Court recognized that in the rare case, a civil penalty may be so
extreme and so disproportionate to the Government's actual damages and
expenses as to constitute prohibited punishment."  Id. at 447-51.  The
Halper Court specifically recognized that the question of double
jeopardy was not dependent solely on whether a penalty was characterized
as "civil" or "criminal."  Rather, the focus was on the purpose and
effect of the penalties on the particular case.

The remedial nature of the mandatory exclusion was examined in Manocchio
v. Sullivan, 768 F. Supp. 814 (S.D. Fla. 1991), where the Court applied
the Supreme Court's two-prong test.  The first prong is a determination
of Congress' intent.  The Court found that because specific sections of
the 1987 Amendments were labeled "criminal," others not so entitled,
such as the mandatory exclusion, were remedial.  Second, the Court
examined the purpose and effect of the exclusion period and found its
intent, as expressed by Congress, was clearly remedial and intended "(i)
to protect the Medicare program from fraud and abuse, and (ii) to
protect citizens who rely on the integrity of the participants in the
program." 5/  The Court held that there was sufficient public interest
in excluding convicted providers that the exclusion did not violate
either the double jeopardy or the ex post facto clauses.  Therefore, as
the provider failed to establish that there was no rational relationship
between the nonpunitive interests and the exclusion period, his appeal
must fail.  Id. at 817.

The remedial nature of the 1987 Amendments was also considered in Greene
v. Sullivan, 731 F. Supp. 838, 840 (E.D. Tenn. 1990 (Greene II). 6/
There, a District Court held the double jeopardy arguments of Halper
inapplicable to the case of a pharmacist who had been convicted for
having filed a false report and as a result had received a mandatory
five year exclusion.  That Court particularly noted the agency's
argument that in Greene II, as opposed to Halper, the government was not
seeking any monetary recovery.  Rather, as in the instant case, the
government sought to protect the Medicare and Medicaid programs by
excluding persons convicted of defrauding them.  These goals, the Court
declared are "clearly remedial and include protecting beneficiaries,
maintaining program integrity, fostering public confidence in the
program, etc."  731 F. Supp. at 840.  Thus, the exclusion remedy is more
analogous to the revocation of a professional license for misconduct
than it is punitive.  Therefore, there is no double jeopardy.  731 F.
Supp. at 840; Dewayne Franzen, DAB 1165, at 11-12 (1990).

Clearly, Petitioner has not here established that his six year exclusion
presents one of those rare Halper cases in which the civil penalty is
extreme and bears no rational relation to the remedial goals.  The
primary purpose of this exclusion is not to punish the Petitioner but to
protect the programs, beneficiaries, and recipients from future
misconduct by a provider who has proved himself untrustworthy.  See
Manocchio v. Sullivan, 768 F. Supp. at 817; ALJ Decision at 7.

Moreover, the court-imposed restrictions on Petitioner's practice will,
in large part, run concurrently with the six year exclusion, although
the exclusion will cover a longer period of time and may function
differently.  For example, an individual excluded under section 1128
must apply to be readmitted following the completion of the exclusion
period and is not guaranteed readmission.  Section 1128(g) of the Act.
In any event, the thrust of the criminal sentence as a whole is
apparently to punish and rehabilitate, whereas the thrust of the
exclusion is clearly remedial in that it attempts to protect health care
programs potentially at risk from Petitioner's actions.

The fact that Petitioner did not commit any further fraud during the
course of the criminal and civil proceedings does not outweigh the
conduct for which he was convicted nor the possibility of future
problems.  As noted, the intent of the exclusion is not so much to cure
the provider but to protect the program and its beneficiaries.

B. Ex Post Facto

Petitioner's next argument is that the exclusion is an unconstitutional
ex post facto application of the Act.  Article I, Section 10 of the
Constitution of the United States prohibits Congress from enacting any
law which imposes a punishment for an act which was not punishable at
the time it was committed, or imposes additional punishment to that then
prescribed.  Petitioner argued that because his conviction was
predicated on claims submitted in 1986 or prior years, application of
the 1987 Amendments' mandatory exclusion -- as opposed to the prior
discretionary exclusion -- is an ex post facto application of the Act.
This, he avers is a substantive change which alters a substantive right
and has the effect of making the civil remedy a punishment.

We have previously considered and rejected this argument in Betsy Chua,
M.D., at 6-7.  We noted there, as did the ALJ Decision here, that it is
well-established that the ex post facto clause forbids penal legislation
which retroactively imposes or increases criminal punishment.
Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952); DAB 1204 at 7; ALJ
Decision at 7.  As discussed previously, however, it is equally
well-established that section 1128(a)(1) is a civil remedies law in its
language, intent, and application. 7/   Petitioner has not demonstrated
otherwise, nor has he, in either of his appeals, given any examples of
the ex post facto clause applying to a civil remedies statute. 8/

Accordingly, we affirm and adopt FFCL Nos. 23 and 24. Petitioner's
constitutional argument is incorrect and not available in these
circumstances.

2.      The six year exclusion is supported by substantial evidence and
is correct under the law.

Petitioner excepted to those portions of the ALJ Decision  which found
that the evidence established Petitioner to be highly untrustworthy.
See FFCL Nos. 13-16 and 22.  He also argued that the ALJ failed to
consider his proferred mitigating circumstances.  This, Petitioner
apparently believed, led to the refusal of the ALJ to reduce the six
year exclusion. 9/

The ALJ correctly concluded that there is no basis for finding that the
six year exclusion was disproportionate.  The first mandatory five years
reflects the seriousness with which Congress viewed these offenses. 10/
In reviewing the Inspector General's decision to add the additional
year, the ALJ provided Petitioner with a hearing and a de novo
determination regarding the appropriateness of the period.  He was able,
during the hearing, to observe the demeanor of Petitioner and other
witnesses and to evaluate their credibility.  In contrast, as previously
noted, our standard of review is limited to whether the decision was
legally erroneous or unsupported by substantial evidence.

The ALJ clearly did not err in basing his decision regarding the
reasonableness of the length of the exclusion on whether the Inspector
General's determination was extreme or excessive.  In doing so, the ALJ
applied the regulations adopted by the Secretary for determining the
reasonableness of the length of a discretionary exclusion.  These
regulations require the Inspector General to consider any mitigating
circumstances and to balance them against other facts bearing on the
nature and seriousness of the program violations.  See 45 C.F.R.
.1001.125(b)(1)-(7). 11/

The ALJ concluded that the evidence supports the finding that the
Petitioner is "a highly untrustworthy health care provider."  ALJ
Decision at 9.  He was convicted of 20 counts of Medicare fraud,
involving numerous false claims for reimbursement for items or services
which he never provided to elderly Medicare beneficiaries.  This fraud
continued for over two years and involved thousands of dollars of trust
fund monies. Id.

In comparison, Petitioner put forth three arguments as mitigating
circumstances.  First, he stated at the trial, the hearing, and in this
appeal that the false claims were the result of inaccurate and
incomplete records rather than intentional wrongdoing.  Second,
Petitioner requested consideration of many statements and petitions from
third parties attesting to his character and honesty.  Lastly,
Petitioner argued that he continued to participate in the Medicare
program from 1986 through 1990 while under the scrutiny of the Inspector
General, and no instances of additional false claims were found.  Thus,
Petitioner argued, the remedial nature of the exclusion is no longer
necessary because he has brought his practice into conformance.

We conclude, however, that the ALJ's findings, with respect to the
trustworthiness of Petitioner and the appropriateness of the six year
exclusion, are correct and supported by substantial evidence.
Petitioner was convicted of submitting bills for services he did not
perform.  Congress specifically amended section 1128 to require
excluding such individuals from participating in Medicare and Medicaid
not only to protect program beneficiaries but to protect the program
itself.  See Napoleon S. Maminta, DAB 1135 at 12-15 (1990) (Maminta).
The Inspector General has imposed much more severe exclusions than the
addition of one year to Petitioner's mandatory five.  For example, in
Maminta, we affirmed the ten year exclusion of a provider for conviction
of converting one Medicare reimbursement check payable to a third party.
There, the Inspector General determined that the conversion undercut the
public's perception of the honesty and integrity of other providers to
an even greater extent than a "simple false billing incident."  Id. at
15-16.

But what we have here is not a simple false billing incident but
systematic fraudulent behavior over more than two years.  Petitioner's
argument regarding his poor recordkeeping, even taken at face value,
does not explain away the unequivocal testimony of several Medicare
beneficiaries whom Petitioner falsely claimed to have treated.  See FFCL
No. 10.  Petitioner's response to this testimony was to allege, without
evidence or proof, that the beneficiaries were incompetent, suffering
from mental illness, forgetful, or intimidated into making false
statements.  The ALJ found, and we agree, that the Petitioner's many
claims for services which he never performed and his unsubstantiated
attempts to blame his poor and elderly patients for his own malfeasence
are unpersuasive and demonstrate a lack of trustworthiness.  ALJ
Decision at 11.

With respect to the letters and petitions, we also agree with the ALJ
that they all commented on Petitioner's skills as a physician or
declared their personal belief in his honesty and good character.  As
such, the ALJ was not erroneous in finding that, as none of the
declarents professed knowledge of either the crimes for which Petitioner
was convicted or the circumstances for which he blamed the false claims,
the letters and petitions did not "derogate the strong evidence of lack
of trustworthiness."  ALJ Decision at 11.

Petitioner's final mitigating argument, that the misconduct will not be
repeated in the future, is based on the fact that he was apparently able
to comport with Medicare requirements for the several years during the
criminal and civil proceedings.  This period of good conduct must be
balanced against the evidence regarding the seriousness of the
misconduct.  The length of the exclusion should reflect the potential
for harm resulting from recurrence of the misconduct.   For example, in
Bernard Lerner, M.D., DAB CR60 (1989), an ALJ affirmed a 15 year
exclusion based on the provider's conviction related to unlawful
possession and distribution of controlled substances over several years.
The ALJ found that even though the petitioner had remained substance
free after his conviction, the potential harm from a relapse was great
enough to justify the margin of safety to the program and beneficiaries
provided by the exclusion.  Id. at 11. 12/  In contrast, we affirmed the
reduction of a permissive exclusion from five years to one year based on
the ALJ's finding that the petitioner did not demonstrate a propensity
to engage in unlawful or harmful conduct in the future.  See Joyce Faye
Hughey, DAB CR94 (1990) aff'd DAB 1221, at 10-11 (1991).

Thus, we have reviewed the circumstances of Petitioner's unlawful
conduct along with his proferred mitigating circumstances.  Petitioner,
unlike the provider in Hughey, has not demonstrated a lack of propensity
to engage in future unlawful conduct.  Petitioner was convicted of
multiple instances of fraud extending over more than two years and
involving several thousands of dollars.  He has shown no remorse or even
acceptance of his conviction for criminal activity but rather has
attempted to explain it away through poor recordkeeping or through
veracity attacks on his former patients.  See FFCL Nos. 13-15.

Five years is the minimum length regardless of the basis for the
conviction, and providers have received this minimum for crimes
considerably less serious than those of Petitioner. 13/  Based on the
severity of Petitioner's actions and their adverse effect on the
Medicare program and beneficiaries, we affirm the ALJ regarding the
reasonableness of the duration of the six year exclusion, and find that
it is supported by substantial evidence and is not erroneous.

We therefore affirm FFCL Nos. 13-16 and 22.

CONCLUSION

Based on the foregoing analysis, we adopt all of the ALJ's FFCLs and
affirm the ALJ Decision and the six year exclusion imposed on
Petitioner.

 

 _____________________________ Cecilia Sparks Ford

 

 _____________________________ Theodore J. Roumel

 

 _____________________________ Donald F. Garrett Presiding Board
 Member

1.  "State health care program" is defined by section 1128(h) of the Act
to include, in part, a State plan approved under Title XIX of the Act
(Medicaid).  We use the term Medicaid to refer to all state health
programs.

2.  Additionally, Petitioner was sentenced to serve six months in a work
release program and ordered to perform 500 hours of community service.
Petitioner was also ordered to pay a special assessment of $1,300 to the
United States and to make restitution to Medicare in the amount of
$6427.

3.  See Medicare and Medicaid Patient and Program Protection Act of
1987, Pub. L. No. 100-93 (1987).

4.  Lakshmi N. Murty Achalla, M.D., DAB 1231, at 7 (1991); DAB
Guidelines, Appendix B at 28-29 (1989).

5.  See S. REP. No. 100-109, 100th Cong., 1st Sess. 1-2 (1987),
reprinted in 1987 U.S. Code Cong. & Admin. News 682.

6.  For additional discussion of the remedial nature of the 1987
Amendments, see 57 Fed. Reg. 3744 (January 29, 1992).

7.  Manocchio v. Sullivan, 768 F. Supp. 814, 816-817 (S.D. Fla. 1991).
See also the ex post facto discussion in Francis Shaenboen, R. Ph., DAB
1249, at 5-9 (1991).

8.  For support, Petitioner has cited two criminal cases, Miller v.
Florida, 482 U.S. 423 (1987) (convicted of sexual battery, a second
degree felony) and Weaver v. Graham, 450 U.S. 24 (1981) (pled guilty to
second degree murder).

9.  Petitioner's appeal states these exceptions but presents no evidence
on this issue other than page citations to the Hearing Transcript.

10.  S. REP. No. 100-109, 100th Cong., 1st Sess 5 (1987).  The report
also notes that the "minimum exclusion provides the Secretary with
adequate opportunity to determine whether there is a reasonable
assurance that the types of offenses for which the individual or entity
was excluded have not recurred and are not likely to do so." Id.

11.  These regulations required the Inspector General to consider: (1)
The number and nature of the program violations and other related
offenses; (2) The nature and extent of any adverse impact the violations
have had on beneficiaries; (3) The amount of damages incurred by the
Medicare, Medicaid and the social services programs; (4) Whether there
are any mitigating circumstances; (5) The length of the sentence imposed
by the court; (6) Any other factors bearing on the nature and
seriousness of the program violations; and (7) The previous sanction
record of the suspended party under the Medicare or Medicaid program.
42 C.F.R. .1001.125(b).  On January 29, 1992, new regulations were
adopted regarding the Inspector General's determination of the length of
mandatory exclusions.  57 Fed. Reg. 3331 (January 29, 1991).  45 C.F.R.
.1001.102(b).  These regulations, while not applicable here due to their
recent adoption, permit consideration of even fewer mitigating
circumstances.

12.  See also David Cooper, R. Ph., DAB CR88 (1990) (ALJ affirmed a 15
year mandatory exclusion against a pharmacist resulting from a
conviction of fraud, theft, embezzlement, breach of fiduciary
responsibility, or other financial misconduct); Leonard N. Schwartz,
R.Ph., DAB CR36 (1989) (eight year mandatory exclusion affirmed for a
pharmacist convicted of two counts of knowingly and intentionally
omitting material information from required records in dispensing
controlled substances).

13.  See, for example, David S. Muransky, D.C., DAB CR95 (1991) (five
year mandatory exclusion affirmed on basis of conviction of billing
errors in the amount of