Aiman M. Hamdan, M.D., DAB CR5270 (2019)

DECISION

Petitioner, Aiman M. Hamdan, M.D., is a physician, licensed to practice in New Jersey, who accepted bribes from a clinical laboratory in return for referring his patients' blood specimens. The lab then billed the Medicare program and private insurers for testing the specimens that Petitioner referred. Petitioner was caught and pled guilty to one count of using interstate and foreign travel in aid of racketeering enterprises.

Based on his guilty plea, the Inspector General (IG) has excluded him for five 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 appeals the exclusion.

For the reasons discussed below, I find that the IG properly excluded Petitioner Hamdan and that the statute mandates a minimum five-year exclusion.

Background

In a letter dated July 31, 2018, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of

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five years because he had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. The letter explained that section 1128(a)(1) of the Act authorizes the exclusion. IG Ex. 1.

Petitioner timely requested review.

The IG submitted a written argument (IG Br.) and five exhibits (IG Exs. 1-5). Petitioner responded to the IG's brief (P. Br.), and the IG submitted a reply (IG Reply).

In the absence of any objections, I admit into evidence IG Exs. 1-5.

I instructed the parties to indicate in their briefs whether an in-person hearing would be necessary and, if so, to explain why, identify any proposed witnesses, and "submit witness testimony in the form of an affidavit or a written sworn declaration." Order and Schedule at 3-4 (¶ 7). The IG indicates that an in-person hearing is not necessary. IG Br. at 5. Petitioner did not respond. In any event, neither party has listed any witnesses, so an in-person hearing would serve no purpose. This matter can therefore be resolved on the written record.

Petitioner requests oral argument, to which the IG objects. P. Br. at 1; IG Reply at 4. Petitioner does not explain why oral argument would facilitate my resolving this very straightforward case. The regulations governing these proceedings afford me wide discretion to hear or decline to hear oral argument. 42 C.F.R. § 1005.3(a)(7). Because oral argument would add nothing but undue delay to these proceedings, I deny Petitioner's request.

Discussion

Petitioner must be excluded from program participation for a minimum of five years because he was convicted of a criminal offense related to the delivery of an item or service under Medicare. Act § 1128(a)(1).I make this one finding of fact/conclusion of law.

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must exclude an individual who 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. 42 C.F.R. § 1001.101(a).

Petitioner Hamdan is a cardiologist practicing in the State of New Jersey. IG Ex. 2 at 3. He accepted bribes from a clinical lab in return for referring and "causing to be referred"

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to that lab his patients' blood specimens. The lab, in turn, billed and was paid by Medicare and private insurers for testing the specimens. IG Ex. 3 at 4-5.

Petitioner, his wife (who was employed by the lab), and another physician were charged with multiple counts of conspiracy to violate the Federal Anti-Kickback Statute; conspiracy to violate the Travel Act; conspiracy to defraud patients of honest services; use of the mail and facilities in interstate commerce and interstate travel to promote, carry on, and facilitate commercial bribery; and conspiracy to commit money laundering. IG Ex. 2.

Petitioner ultimately pled guilty in the United States District Court for the District of New Jersey to one count of using interstate and foreign travel in aid of racketeering enterprises, in violation of 18 U.S.C. § 1952(a)(3) and 18 U.S.C. § 2. IG Exs. 3, 4. On March 28, 2018, the court entered judgment and sentenced him to three years probation, with 600 hours of community service. IG Ex. 4 at 1-2. The court also ordered Petitioner to pay a $10,000 fine. IG Ex. 4 at 5.

Petitioner concedes that his crime "might arguably be 'related to a health care item or service'" but argues that "it is firmly not 'related to the delivery of an item or service under [Medicare].'" P. Br. at 1. In Petitioner's view, the IG may look only at the elements of the crime, not underlying facts that "are not necessary parts of the offense." P. Br. at 10.

The Departmental Appeals Board has long rejected efforts to limit section 1128 review to the bare elements of the offense on which the individual was convicted. See Narendra M. Patel, M.D., DAB No. 1736 at 10 (2000) ("We thus see nothing in section 1128(a)(2) that requires that the necessary elements of the criminal offense must mirror the elements of the exclusion authority, nor that all statutory elements required for an exclusion must be contained in the findings or record of the state criminal court."), aff'd sub nom. Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003); Timothy Wayne Hensley, DAB No. 2044 (2006); Scott D. Augustine, DAB No. 2043 (2006); Lyle Kai, R. Ph., DAB No. 1979 at 5 (2005) (holding that an offense is "related to" the delivery of a healthcare item or service, if there is a "nexus or common-sense connection" between the conduct giving rise to the offense and the delivery of a healthcare item or service), aff'd sub nom. Kai v. Leavitt, No. 05-00514 BMK (D. Haw. July 17, 2006); Berton Siegel, D.O., DAB No 1467 at 5 (1994); Carolyn Westin, DAB No. 1381 (1993), aff'd sub nom. Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994).

Moreover, Petitioner was convicted of making referrals in return for bribes, a crime that "facilitate[s] or increase[s] the risk of false, fraudulent, or otherwise improper billing of Medicare." Kimbrell Colburn, DAB No. 2683 at 5 (2016). The Board has correctly characterized such crimes as "intimately related to the delivery of a healthcare item or service." Id.

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Indeed, Petitioner's guilty plea, on its face, establishes that his crime is directly related to the delivery of health care items and services under Medicare. With his co-conspirator, the lab owner, Petitioner engaged in a relatively simple scheme with direct lines from Petitioner to the lab to the Medicare program: 1) the lab paid Petitioner a bribe; 2) in return for the bribe, Petitioner referred blood specimens to the lab; 3) the lab billed Medicare and private insurers for testing the specimens; and 4) Medicare paid for those bills. IG. Ex. 3 at 4-5.

The IG also points out that the information to which Petitioner pled guilty incorporated a New Jersey statute: N.J.S.A § 2C:21-10 (Commercial Bribery and Breach of Duty to Act Disinterestedly). IG Ex. 3 at 4. Under that provision, a physician commits a crime if he accepts any benefit as consideration for knowingly violating or agreeing to violate a duty of fidelity to which he is subject. That Petitioner violated his duty of fidelity to his Medicare patients also establishes the necessary relationship under section 1128(a)(1).

Thus, the charges to which Petitioner pled guilty establish that his crime was directly related to the delivery of healthcare items and services under the Medicare program, and he is subject to exclusion under section 1128(a)(1).

Petitioner also argues that his exclusion violates various provisions of the Constitution. P. Br. 21-25. I have no authority to review constitutional challenges. Donna Rogers, DAB No. 2381 at 5 (2011); Susan Malady, DAB No. 1816 (2001); see also 42 C.F.R. § 1005.4(c)(1).

An exclusion brought under section 1128(a)(1) must be for a minimum period of five years. Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs, and I sustain the five-year exclusion.