SUBJECT: Hazem Garada, M.D.,

Petitioner,

Inspector General

REMAND OF
ADMINISTRATIVE LAW JUDGE DECISION

On January 24, 2006, Hazem Garada, M.D. (Garada) appealed the December 22, 2005, decision of Administrative Law Judge (ALJ) Steven T. Kessel which upheld the imposition by the Inspector General (I.G.) of a 15-year exclusion from participating in Medicare and other federally funded health care programs. Hazem Garada, M.D., DAB CR1384 (2005) (ALJ Decision). The exclusion was imposed under two mandatory exclusion provisions, sections 1128(a)(1) and (a)(3) of the Social Security Act (Act). ⁽¹⁾ Section 1128(c)(3)(B) of the Act requires the I.G. to exclude Garada for at least five years if he meets the criteria of either of the two cited provisions. Garada did not deny that he met the criteria for both mandatory exclusion provisions or that he must therefore [Page 2] be excluded for at least five years. He did object to extending the exclusion period to 15 years. The I.G. based the longer period on the presence of four aggravating factors and the absence of any mitigating factors. The applicable aggravating and mitigating factors are limited to those set out in the regulations at 42 C.F.R. § 1001.105.

While Garada, proceeding pro se, offered many statements to illustrate why he considered the 15-year exclusion to be excessive, his appeal to us centers on the claim that he was entitled to the benefit of the regulatory mitigating factor for cooperation with law enforcement authorities. The regulation requires that the cooperation must have yielded certain results, including criminal convictions, civil money penalties or "[a]dditional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses." 42 C.F.R. § 1001.102(c)(3)(ii). Garada sought an in-person hearing before the ALJ to testify in relation to this mitigating factor and asked to subpoena federal and state law enforcement officials (whom he named in his submissions) to question them as to his cooperation. The ALJ decided that no hearing was required because he found that Garada's proffer of evidence, even accepted as true, failed to relate to any relevant matter on which a hearing could be held. ALJ Decision at 6.

Standard of review

Our standard of review of the ALJ Decision to uphold the I.G.'s exclusion is set by regulation. We review to determine whether the decision is erroneous as to a disputed issue of law and whether the decision is supported by substantial evidence in the record as a whole as to any disputed issues of fact. 42 C.F.R. § 1005.21(h).

The issue before us is a legal one. We must determine whether the ALJ could properly decline to issue subpoenas and to hold a hearing requested by a petitioner under the circumstances here.

The ALJ resolved this case on the written record over the objection of Garada, determining that none of the evidence which Garada sought to present through his testimony or by subpoenaing the testimony of law enforcement agents would be relevant. A review of Garada's submissions below makes clear that the bulk of the subjects about which he proffers testimony is indeed irrelevant to any issue properly before the ALJ.

[Page 3] For example, the ALJ is clearly correct that testimony of former patients or others directed at establishing Garada's general trustworthiness or quality as a doctor is not related to any factor relevant to the length of the proper exclusion under the regulations. ALJ Decision at 5. Similarly, the ALJ properly rejected testimony going to an earlier lawsuit against Garada, to a prior 1996 license action, and to the circumstances of or his explanations for the behavior that led to Garada's conviction. Id.

The single remaining issue is whether the ALJ could also properly dispose of Garada's claim of a mitigating factor under section 1001.102(c)(3)(ii) without a hearing. The ALJ's determination that no hearing was needed was founded on his conclusion that Garada did not adequately articulate an allegation or proffer evidence that his cooperation produced the requisite results. Thus, the ALJ explained his reasoning as follows:

Although Petitioner asserts that he has cooperated with law enforcement authorities he has not alleged that his cooperation produced any of the positive results that must occur in order to support a reduction of an exclusion. I find no basis to receive testimony absent a proffer by Petitioner that his cooperation led to positive results.

ALJ Decision at 6.

In his pre-hearing order, the ALJ informed the parties that he had seldom found a need for an in-person hearing in cases "of this kind," but that he would hold a hearing upon request of a party if that party identified specific witnesses and showed the relevance of the anticipated testimony of that witness. Order and Schedule for Filing Briefs and Documentary Evidence, dated June 21, 2005, at 3. Thus, the ALJ stated that he would schedule an in-person hearing "to receive any testimony that is relevant to the issues in this case and which does not duplicate evidence that is contained in an exhibit or exhibits." Id.

Garada expressly requested an in-person hearing. P. Ex. 1, at 1-2. ⁽²⁾ He identified by name and address the witnesses he wished to subpoena for the hearing, in addition to himself. Id. at 1-3, 13-14. He indicated that he wished to present evidence on the [Page 4] mitigating factor of cooperation, on which he understood he had the burden of proof, through testimony and cross-examination of these witnesses. Id. His discussion of the nature and results of his voluntary cooperation is scattered, but includes statements such as a reference to turning over information to Baltimore and Virginia Medicare Fraud Investigation Units about a kickback scheme involving multiple providers and the assertion that he was told by a Detective Pfeiffer in March 2005 that an arrest had been made based on information Garada had provided. Id. at 13, and Rule 35 motion attached to P. Ex. 1, at 2.

The regulations empower the ALJ to, "[u]pon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact . . . ." 42 C.F.R. § 1005.4(b)(12). The regulations also provide that, during a pre-hearing conference, the ALJ may discuss "[w]hether the parties can agree to submission of the case on a stipulated record" and "[w]hether a party chooses to waive appearance at an oral hearing and to submit only documentary evidence (subject to the objection of other parties) and written argument." 42 C.F.R. § 1005.6(b)(4) and (5).

In the present case, the I.G. never moved for summary judgment. On July 26, 2005, the I.G. submitted a "motion to uphold exclusion," accompanied by a brief, the I.G.'s exhibits, and proposed findings of fact and conclusions of law. Neither the motion nor the brief asserted that no material facts are in dispute or asked the ALJ to decide the matter without an in-person hearing. The I.G. did not specifically address the allegations relating to Garada's cooperation with law enforcement except to state that there were "no mitigating factors meeting the criteria for consideration under 42 C.F.R. § 1001.102(c) in this matter." I.G. Br. in support of Motion for Exclusion to be Upheld, at 13.

Garada responded to the I.G. motion with several additional submissions. P. Exs. 2-6. He repeatedly reiterated his request to testify personally about his cooperation and also provided names and addresses of individual state and federal agents whom he sought to subpoena to testify on his behalf regarding his cooperation with Medicare fraud, terrorism, immigration and criminal authorities. P. Ex. 3, at 3; P. Ex. 6, at 2-3. ⁽³⁾

[Page 5] The I.G. filed a reply brief, dated November 28, 2005, which again failed to move for summary judgment or to assert that no material facts were in dispute. The I.G. noted that Garada did not dispute the legal basis of the exclusion but that Garada did seek to reduce the exclusion from 15 to five years. I.G. Reply Br. at 1-2. The I.G. stated that Garada "only contests one of the four aggravating factors," and that Garada "has not proven the existence of any mitigating factor." Id. at 2. Under the ALJ's prehearing order, however, Garada was not required to prove the existence of a mitigating factor in order to obtain a hearing, but rather was required only to proffer evidence concerning a material fact relating to a mitigating factor which did not duplicate evidence available from an exhibit.

The I.G. stated that Garada provided "no evidence that any investigation was undertaken as a result of his communication with law enforcement officials," citing prior Board decisions which have held that the regulations require more than merely providing information. Id. at 5. The I.G. recognized that Garada has requested a "'personal appearance' to present his case to the ALJ," but stated that the I.G. "believes such an appearance is unnecessary and that this matter should be resolved based on the filings of the parties." Id. at 6. The I.G. did not comment on Garada's request to subpoena law enforcement agents to testify regarding his cooperation.

In the absence of a motion for summary judgment, the ALJ did not clarify whether the results of the cooperation were in dispute between the parties. Evidently, the ALJ concluded that Garada had not adequately articulated a factual claim that his cooperation produced results and therefore the ALJ did not require the I.G. to state whether or not such a claim was disputed as a matter of fact. The ALJ Decision does not mention Garada's assertions about exposing a Medicare kickback scheme and other criminal activity, resulting in a possible arrest. In addition to these statements mentioned above, Garada submitted a surreply, in which he reiterated his desire for an in-person hearing at "the least to present Petitioner cooperation" with the state and federal law enforcement agencies. P. Ex. 7, at 2. ⁽⁴⁾ He then explained that "above security briefing can't be put on such a motion as Petitioner would jeopardize the investigation, however, with the agents present if needed or under judge order this would be exposed with all precautions in a hearing. Just [Page 6] two days ago petitioner had another briefing in the Washington FBI field office with special agent Mr. Robert Wells." Id. He asserted that the issues involved included a Medicare kickback scheme "in Northern Virginia Community Hospital involving various Dr practices & billing patient encounters." Id. The ALJ Decision neither specifically referred to these statements, nor explained why the ALJ did not consider these statements to be relevant. These statements can be read, in the most favorable light for Garada, to suggest that he was asserting that his cooperation did produce results or that relevant results might be disclosed by the agents he sought to subpoena if they could testify under confidential conditions. The ALJ also did not explain why testimony of law enforcement officials regarding the results, if any, of information provided by Garada would not be relevant.

On appeal, Garada asserts that "the fact . . . is undisputed that there is an investigation which can't be disclosed without the agent's permission . . . or of course in closed court hearing." Notice of Appeal at (unnumbered) 2. He indicates that his cooperation with a Medicare Fraud Unit disclosed fraud involving a northern Virginia hospital "that is underway" and "has to be presented in a secured testimony with the agents present" due to confidentiality concerns. Id. at 3.

The I.G. on appeal does not respond to Garada's assertion that it is "undisputed" that an investigation was conducted in relation to Garada's cooperation relating to Medicare fraud. Nor does the I.G. indicate whether any inquiries were conducted to determine if a non-public investigation was in fact undertaken in relation to Medicare fraud, information which might presumably be more accessible to the I.G. than to Garada. See Brij Mittal, M.D., DAB No. 1894, at 7-8 (2003). Instead, the I.G. asserts that Garada merely argues that "it is sufficient that he has had discussions with various law enforcement officials" but "provides no evidence about whether his discussion with law enforcement had any consequence whatsoever." I.G. Br. at 15. The I.G. acknowledges Garada's claim that he cannot meet the regulatory standard "without an evidentiary hearing at which he can subpoena governmental witnesses to testify about his cooperation." Id. ⁽⁵⁾ Nevertheless, the I.G. concludes that the hearing was properly [Page 7] denied on the grounds that Garada "has not even made a colorable claim that he can establish that his cooperation rises to the level required by the regulations." Id.

The Board has held that petitioner bears the burden of proof on the elements of mitigating factors, and Garada does not dispute that standard. With respect to evaluating a petitioner's right to a hearing where the petitioner has not agreed to a decision on a stipulated record and has opposed waiver of an oral hearing, the standard is different, however. To the extent that the ALJ was evaluating whether Garada made allegations sufficient to assert the mitigating factor, the Board has reiterated that hearing rights are not lightly to be abrogated. Alden-Princeton Rehabilitation and Health Care Center, DAB No. 1978, at 4-5 (2005). Hence, any ambiguities that affect a petitioner's efforts to assert a hearing right should be resolved in favor of affording a hearing. Glen Rose Medical Center Nursing Home, DAB No. 1852, at 8 (2002). ⁽⁶⁾ Here, it is reasonable to infer from the above-mentioned statements, in context, that Garada was alleging that information he provided to law enforcement relating to Medicare fraud activities could be shown to have borne fruit only by questioning the agents in a secured setting at a hearing. This inference is particularly reasonable in light of the fact that Garada is appearing pro se and has obvious language difficulties.

We are not implying that an ALJ is required to go to hearing on a mitigating factor where a petitioner has neither alleged nor proffered any evidence on a necessary element of the factor. In this particular circumstance, however, we conclude that the ALJ erred in concluding that all of Garada's proffered evidence went only to his cooperation and not to the results of that cooperation.

The opening of an investigation by a law enforcement agency may be an internal matter not subject to public disclosure, and a petitioner may not be able to access the necessary evidence that [Page 8] it resulted from his cooperation. This is especially plausible where the petitioner is confined and is unrepresented. In addition, here, Garada has offered a reason why he cannot spell out the results of his cooperation - that he has been instructed that the information is sensitive and must be disclosed in a confidential setting such as a closed hearing. He has alleged that an investigation and an arrest occurred related to the information he provided and that ongoing cooperation is underway which he characterized as valuable. He has pointed out that he is not in a position to collect written testimony from those in possession of the information he would need to substantiate his case without the use of subpoenas. While Garada's allegations are not sufficiently specific to determine with any certainty whether any results from the information he provided would meet the regulatory test, his explanations justify providing him an opportunity to bring in the named witnesses to test that claim, assuming the I.G. indicates that it is in fact disputed.

In remanding for further process consistent with the regulations, we in no way prejudge the quality or nature of any testimony that Garada may proffer to meet the demanding requirements of the regulations to show positive results from his cooperation. The Board has defined the kind of showing required by the regulation as necessitating -

that the cooperation be validated by the "investigation" of new cases, which requires a law enforcement official to actually open a new case for investigation after receiving information during the cooperation by the individual. Although the ALJ is correct in stating that the subsequent investigation does not have to prove that the information was well-founded or to result in any remedy or punishment, it does at a minimum have to provide the official with a sufficient basis in his or her discretion to take further steps to begin an investigation of a new case.

Stacey R. Gale, DAB No. 1941, at 15 (2004). As a matter of law, the argument which Garada also made that cooperation alone should be treated as mitigating, even if he fails to prove results, is thus unsupportable. Garada may benefit from the mitigating circumstances only if he proves by a preponderance of the evidence that he has met the elements set out in the regulations. As noted above, the ALJ properly found that his evidence on aspects of Garada's situation other than this mitigating factor was irrelevant and therefore inadmissible at any hearing that may occur on remand. We affirm and adopt without further discussion [Page 9] those portions of the ALJ Decision which were not expressly challenged on appeal.

Hence, the very limited purpose of this remand is to permit the ALJ to determine whether the I.G. in fact disputes that an investigation or other action of the kind required by the regulations resulted from Garada's cooperation with various law enforcement entities. If this question is in dispute, it is clearly material under the regulations. Therefore, the ALJ should then permit Garada an opportunity to subpoena those witnesses alleged to possess the responsive information.

Donald F. Garrett

Sheila Ann Hegy

Judith A. Ballard
Presiding Board Member

1. The current version of the Social Security Act can be found at www.ssa.gov/OP_Home/ssact/comp-ssa.htm. Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section. Also, a cross reference table for the Act and the United States Code can be found at 42 U.S.C.A. Ch. 7, Disp Table.

2. The ALJ assigned exhibit numbers to each of Garada's submissions, since they contained statements in the nature of testimony and documentary attachments.

3. The record indicates that, at the time, he had not received a copy of the applicable regulations.

4. In quoting material submitted by Garada, we have corrected spelling and capitalization throughout without further comment.

5. The I.G.'s reliance on Board cases placing the responsibility on petitioners to present evidence on any mitigating factor is misplaced since they address whether the burden of proof has been met not whether petitioner is entitled to a hearing at which to present his evidence.

6. To the extent that the ALJ's review actually focused on whether Garada proffered evidence relevant to demonstrating the existence of the mitigating factor, his action was in the nature of summary judgment, which would require that the proferred evidence be viewed in the light most favorable to the party against whom judgment is to be issued and that all reasonable favorable inferences be drawn from that evidence. See, e.g., St. Catherine's Care Center of Findlay, Inc., DAB No. 1964 (2005).