Asim A. Hameedi, M.D., DAB CR6171 (2022)

DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Petitioner, Asim A. Hameedi, MD, for eleven years from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(3) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(3)).  The IG’s exclusion of Petitioner is the result of Petitioner’s conviction of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1347.  Petitioner’s exclusion for the minimum period of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).  While the IG proved the presence of two aggravating factors and is therefore permitted to extend the minimum exclusion period of five years, an additional exclusion of six years, for a total minimum exclusion of eleven years, is unreasonable based on consideration of the specific facts and circumstances of the two aggravating factors.  For the reasons stated below, I affirm the IG’s exclusion determination and reduce the length of exclusion to 8 years.

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I.    Procedural History

The IG issued a notice to Petitioner on February 28, 2022, informing him that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for 11 years.  IG Ex. 1 at 1.  The IG based the exclusion on Petitioner’s felony conviction in the United States District Court, Southern District of New York (District Court).  Id.  The IG cited section 1128(a)(3) of the Act as the basis, which mandates exclusion, in relevant part, when an individual is convicted of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.  Id.  Petitioner timely requested a hearing, and I was designated to hear and decide this case. 

I conducted a prehearing telephone conference on May 19, 2022, the substance of which I memorialized in my Order of the same date (Summary Order), including a schedule for submission of arguments and evidence by the parties.  The IG submitted a brief (IG Br.), and seven exhibits (IG Exs. 1-7), while Petitioner submitted a brief (P. Br.) with eighteen exhibits (P. Exs. 1-18). 

II.    Jurisdiction

Petitioner timely requested a hearing.  I therefore have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a‑7(f)(1). 

III.    Issues

The Secretary of Health and Human Services (Secretary) has, by regulation, limited my scope of review to two issues:  Whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs and, if so, whether the length of the exclusion imposed by the IG is unreasonable.  See 42 C.F.R. § 1001.2007(a)(1).  Here, the Petitioner concedes the IG has a basis to exclude him from participation in federal health care programs under section 1128(a)(3) of the Act.  P. Br. at 3.  Therefore, the only issue in this case is whether the eleven-year period of exclusion imposed by the IG is reasonable.  42 C.F.R. § 1001.2007.

IV.    Exhibits and Decision on the Record

Neither party objects to the other’s proposed exhibits.  I therefore admit IG Exhibits 1 through 7 and Petitioner Exhibits 1 through 18 into evidence.

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Petitioner did not propose any witnesses for a hearing, and the IG contends that a hearing is not necessary in this matter.  See Standing Prehearing Order at § 6; IG Br. at 10.  I therefore proceed to a decision based on the record before me.  See Civ. Remedies Div. P. § 19(d). 

V.    Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary.  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified at 42 C.F.R. § 1005.3.

The Secretary shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual:

[H]as been convicted for an offense which occurred after August 21, 1996, under Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program . . . operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct. 

42 U.S.C. § 1320a-7(a)(3); Act § 1128(a)(3).  The Secretary has promulgated regulations implementing this provision of the Act.  42 C.F.R. § 1001.101(c).  The Secretary has interpreted this statutory provision to include “the performance of management or administrative services relating to the delivery of such items or services” as sufficient to mandate exclusion.  42 C.F.R. § 1001.101(c)(1). 

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of no fewer than five years.  Pursuant to 42 C.F.R. § 1001.102(b), an individual’s period of exclusion may be extended based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years, however, are mitigating factors considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b), (c).

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VI.    Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis. 

A. The IG established a basis for Petitioner’s exclusion pursuant to section 1128(a)(3) of the Act (42 U.S.C. § 1320a-7(a)(3)) and Petitioner does not otherwise contest this.

On February 9, 2018, Petitioner agreed to plead guilty to one count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1347 as stated in the Superseding Information.  IG Ex. 4 at 1; see IG Ex. 3.  Specifically, during the time period of 2003 through approximately November 2015, Petitioner and employees in his clinic: 

[W]illfully and knowingly would and did execute, and attempt to execute, a scheme and artifice to defraud a health care benefit program, and to obtain, by means of false and fraudulent pretenses, representations, and promises, money and property owned by, and under the custody and control of, a health care benefit program, in connection with the delivery of and payment for health care benefits, items, and services, to wit, [Petitioner] participated in a scheme to defraud insurance providers by making materially false statements in requests for preauthorization for medical tests and procedures and in claims for payment for the provision of medical services and drug items . . . .

IG Ex. 3 at 1-2.  In his own words, Petitioner explained the following in response to the District Court Judge’s inquiry as to Petitioner’s actions in connection with the crime to which he pled guilty: 

I agreed with others to tell insurance providers that one other doctor had requested the pre-authorization for medical tests when I knew that he had not.  And specifically, on July 11, 2013, I falsely represented myself as another physician in seeking pre-authorization for a nucleus [sic] stress test to be performed on my patients.  While I believe based on my

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review of patient charts that these tests were absolutely medically necessary I intentionally represented that another doctor recommended these tests.  I knew at the time that this was wrong and that the pre-authorization would be used to facilitate payment for their procedure.

P. Ex. 1 at 21-22.

On May 20, 2021, the District Court issued a Judgment based on Petitioner’s Plea Agreement.  IG Ex. 5 at 1.  The District Court found Petitioner guilty of one count of conspiracy to commit health care fraud and sentenced him to twenty months of imprisonment.  IG Ex. 5 at 2.  Further, in an Order of Restitution filed on August 9, 2021, Petitioner was ordered to pay restitution totaling the amount of $554,331 to the victims of the offense charged.  IG Ex. 6.

1. Petitioner was convicted of a felony occurring after August 21, 1996.

Petitioner concedes that on May 20, 2021, the District Court issued a Judgment, based on his Plea Agreement, and he was adjudicated guilty of one count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1347.  IG Ex. 5.  The acts underlying Petitioner’s offense occurred between 2003 and November 2015.  See IG Ex. 3.

2. Petitioner was convicted of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility or other financial misconduct that was committed in connection with the delivery of a health care item or service.

Section 1128(a)(3) of the Act requires that Petitioner’s felony offense relate to “fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.”  42 U.S.C. § 1320a-7(a)(3).  Additionally, in order for the IG to exclude Petitioner under section 1320a-7(a)(3), the felony offense that was the basis of Petitioner’s conviction must have been for conduct “in connection with the delivery of a health care item or service.”  Here, Petitioner concedes that the IG had a basis to exclude him pursuant to section 1128(a)(3).  P. Br.at 3.¹

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B. Petitioner must be excluded for a minimum of five years.

Because I have concluded that a basis exists to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(3), he must be excluded for a minimum of five years.  42 U.S.C. § 1320a‑7(c)(3)(B). 

C. The IG has established two aggravating factors which together permit the IG to lengthen the exclusion beyond the five-year statutory minimum.

Petitioner disagrees with the weight assigned to both aggravating factors identified by the IG.  P. Br. at 4-6.  I have reviewed the application of both aggravating factors, as the IG bears the burden of establishing that they are warranted.  42 C.F.R. § 1005.15(c).  Additionally, Petitioner essentially argues that the IG failed to consider several mitigating factors that render the eleven-year exclusionary period unreasonable.  P. Br. at 11-18.  Petitioner has the burden of proving mitigating factors, and I analyze the application of this factor below as well.  42 C.F.R. § 1005.15(c). 

1. The IG established that Petitioner’s sentence imposed incarceration as required by 42 C.F.R. § 1001.102(b)(5).

As a result of the plea agreement Petitioner made with the government, the District Court sentenced Petitioner to 20 months in jail.  IG Ex. 5.  Petitioner concedes this point, but he further argues – without supporting evidence in the record – that he was ultimately only incarcerated for 4 months.  P. Br. at 11.  Regardless, the IG has established Petitioner’s sentence imposed a period of incarceration.

2. The IG established that the acts resulting in Petitioner’s conviction caused a financial loss to a government program of $50,000 or more under 42 C.F.R. § 1001.102(b)(1).

The IG may extend the length of an exclusion if: 

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 other entities of $50,000 or more.  (The entire amount of financial loss to such government agencies or programs or to other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made).

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42 C.F.R. § 1001.102(b)(1).

Here, Petitioner was ordered to pay restitution totaling the amount of $554,331 to the victims of his offense.  IG Ex. 6.  Petitioner contends that the total restitution amount was not all attributed to him but apportioned to him, his previous partner, and an employee of his clinic.  P. Br. at 9.  Petitioner, without the support of any evidence in the record, argues that he ultimately paid $388,031.55, which was the amount he asserts is attributed to himself along with the restitution amount attributed to the clinic employee.  Id.  The IG did not respond to Petitioner’s contention, but Order of Restitution specifies that Petitioner is jointly and severally liable for the entire amount of $554,331.  IG Ex. 6 at 1‑2.  In any event, whether the restitution amount allocated to Petitioner was $554,331 or $388,031.55, all amounts are in excess of $50,000.

The specific amounts to be paid to the victims of financial loss are set forth in Attachment A to the Order of Restitution; to protect the victims’ privacy, Attachment A is filed under seal.  IG Ex. 6 at 4.  In the underlying sentencing hearing, however, Petitioner’s counsel acknowledged that the “the only entities that suffered actual loss” were the “Medicare and Medicaid programs.”  P. Ex. 3 at 9.  Additionally, the Order of Restitution specifies that “[a]ll restitution payments made by [Petitioner] shall be distributed to CMS . . . .”  IG Ex. 6 at 3.

The Departmental Appeals Board (Board) has long recognized that restitution is an appropriate measure to demonstrate loss to a government program.  See Summit S. Shah, M.D., DAB No. 2836 at 8 (2017).  As such, the IG has established by a preponderance of the evidence that Petitioner was responsible for more than $50,000 in loss to a government program; thus, the IG has established the existence of the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(1).   Specifically, I find that $554,331 is the most accurate proxy of the financial loss Petitioner caused to a government program.  I also find that Petitioner’s actions in causing financial loss to a government program directly resulted in his conviction.

3. There are no mitigating factors applicable in this case. 

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) that permit the IG to impose an exclusion of longer than five years apply, as they do in this case, then mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).  The IG did not consider any mitigating factors in deciding to extend Petitioner’s exclusion to eleven years.  In response to Petitioner’s argument that certain mitigating factors should reduce the length of exclusion, the IG argues there is no evidence of any mitigating factors under 42 C.F.R. § 1001.102(c) to support the reduction of Petitioner’s exclusion to the mandatory minimum of five years.  IG Br. at 8-9.

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The only authorized mitigating factors that I may consider are listed in 42 C.F.R. § 1001.102(c): 

(1)  In the case of an exclusion under § 1001.101(a), whether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;

(2)  The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual’s culpability; or

(3)  The individual’s or entity’s cooperation with Federal or State officials resulted in –

(i)  Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

(ii)  Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii)  The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for me to consider.  42 C.F.R. § 1005.15(c); Standing Prehearing Order ¶ 5. 

Petitioner urges me to consider the following to be essentially mitigating factors that justify reducing the period of his exclusion: 

• CMS determined that a revocation with a three-year reenrollment bar was sufficient to protect Medicare beneficiaries and the program.  Furthermore, CMS decided to date the reenrollment bar back to February 9, 2018, the date of the conviction;

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• [The New York State Medical Board] determined that a 15-month suspension followed by an automatic reinstatement, was sufficient under the circumstances;
• The erroneous billings underlying [Petitioner’s] conviction are clearly an aberration to an otherwise exemplary professional life of giving and service to others;
• [I]ncreased staff education, training, and oversight to ensure that the rendering physician listed on all future claims is the physician performing the services billed;
• [T]he IG’s proposed eleven-year exclusion in this case is actually detrimental to the best interests of Medicare beneficiaries. . . . [because] as is the case with most interventional cardiologists, a sizable portion of [Petitioner’s] patient base are Medicare beneficiaries; and
• [T]he need for healthcare providers in underserved areas has been intensified by the COVID-19 pandemic and its ever-emerging variants.

P. Br. at 12-18.

While Petitioner’s aid in combatting the COVID-19 pandemic and his work ethic are certainly laudable, they are not mitigating factors that I am authorized to consider to reduce the period of exclusion imposed by the IG.  42 C.F.R. § 1001.102(c).  Similarly, the actions taken by CMS and state licensing authorities – which operate under separate statutory and regulatory authority – or the remedial actions taken by Petitioner and his clinic to ensure that similar conduct does not occur in the future, are also not mitigating factors that I am authorized to consider to reduce the period of exclusion imposed by the IG.  Therefore, Petitioner has failed to meet his burden to show the existence of any regulatorily permissible mitigating factor(s).

D. Given the specific facts pertaining to the applicable aggravating factors, an eleven-year exclusion period is unreasonable, and I therefore reduce the length of exclusion to eight years. 

The purpose of any exclusion is remedial.  Manocchio v. Kusserow, 961 F.2d 1539 at 1541-42 (11th Cir. 1992); Greene v. Sullivan, 731 F. Supp. 838 at 839-40 (E.D. Tenn. 1990).  The intent is not to punish, but to assure that trust funds and their beneficiaries and recipients are protected from individuals who are untrustworthy.  While the IG is not compelled to extend the length of exclusion for any period of time beyond five years in the presence of aggravating factors, it may choose to exercise its discretion to do so.  I must uphold the IG’s determination as to the length of exclusion unless it is

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unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  As the Secretary stated in the preamble to the final rule establishing the exclusion regulations:  “So long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule.”  57 Fed. Reg. 3298 at 3321 (Jan. 29, 1992).  The Board has also made clear that the role of the ALJ in exclusion cases is to conduct a de novo review of the facts related to the basis for the exclusion and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102, and to determine whether the period of exclusion imposed by the IG falls within a reasonable range.  Craig Richard Wilder, DAB No. 2416 at 8 (2011); Joann Fletcher Cash, DAB No. 1725 at 17 n.6 (2000). 

It is important to note in performing a de novo review that it is the quality of the aggravating (or mitigating) factors that is most important when considering the length of exclusion, and not the sheer number of aggravating factors that are present in a given case.  As the Secretary also stated in the preamble to the final rule establishing the exclusion regulations:

We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case.  For example, in one case many aggravating factors may exist, but the subject’s cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating.  Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating.  The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue. 

57 Fed. Reg. 3298 at 3314-15.  See also Sushil Aniruddh Sheth, M.D., DAB No. 2491 at 5 (2012) (finding that the evaluation of what constitutes an appropriate range does not depend on the number of aggravating or mitigating factors, or any rigid formula for weighing those factors, but rather on a case-specific analysis of the weight merited by each factor “based on a qualitative assessment of the circumstances surrounding the factors” at issue). 

Here, the IG proved by a preponderance of the evidence two aggravating factors, but it appears that the weight assigned to the financial loss aggravating factor was based upon a financial loss amount greater than that determined by the District Court.  The IG argues, in part, that the eleven-year period of exclusion is within a reasonable range, noting that:

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[T]he conspiracy scheme that Petitioner participated in led to fraudulent gains of millions of dollars, and an order of restitution amounting to approximately $554,300, [which] support the imposition of the first aggravating factor.

IG Br. at 10.  The IG does not otherwise specifically state the amount of loss it used when deciding how much weight to apply to this aggravating factor.  However, the IG cites to Petitioner’s Indictment, rather than the Superseding Information (IG Ex. 3), in asserting that Petitioner “defrauded insurance providers of approximately $57,000,000.”  IG Br. at 7 citing IG Ex. 2.  In the underlying District Court proceeding, however, the government did not “dispute the defendants’ representation that services billed under non-rendering physicians’ names were actually performed and were medically necessary, other than the portions of the nuclear stress tests (“NSTs”) that the parties agree were billed but not performed.”  P. Ex. 2 at 1.  The $554,331 restitution amount is the portion of the NSTs that the District Court found were billed but not performed, and the District Court Judge ruled as such in the underlying sentencing hearing: 

The Court will order restitution in the amount of $554,331.  This was the amount of the loss to the insurance companies for payments for services that were not performed.  See 18 U.S.C. Section 3663A(c), 18 U.S.C. Section 3664(f)(1)(A).  The amount of restitution is limited to the victims’ actual loss, and $554,331 is the amount of that loss.  See United States v. Tanner, 942 F.3d 60, 67 (2d Cir. 2019).

P. Ex. 3 at 51.  Therefore, the IG assigned a greater weight – potentially by many multiples – than warranted, to the financial loss aggravating factor.

The IG thus failed to demonstrate that a six-year lengthening of the exclusionary period falls within a reasonable range based upon the period of incarceration imposed and the amount of financial loss determined by the District Court.  The IG did not state how much of the six-year exclusionary period increase was attributed to the financial loss aggravating factor and how much was attributed to the incarceration aggravating factor.  I find that a three-year lengthening of the exclusionary period falls within a reasonable range and is in line with the reasonable range determined by the Board in Jason Hollady, M.D.,which contained a similar restitution amount and incarceration length.  DAB No. 1855 (2002) (finding that an eight-year exclusionary period was reasonable with a nine-month period of incarceration and $347,463 in restitution).²

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E. The effective date of the exclusion.

At present, Petitioner’s exclusion was effective as of March 20, 2022.  IG Ex. 1.  Petitioner requests that the period of exclusion, instead, begin on February 9, 2018, the last date that Petitioner was able to participate in the Federal healthcare program due to the underlying adjudication, and the date from which CMS is using for its reenrollment bar.  P. Br. at 12-13; P. Ex. 6 at 4.  While the IG may alter the effective date of its exclusion to an earlier date in line with CMS, I cannot compel the IG to do so here. 

VII.    Conclusion

I affirm the IG’s determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs.  The eleven-year exclusion imposed by the IG is not within a reasonable range and is reduced to a period of eight years.

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Endnotes

¹ Petitioner’s Brief states “Dr. Hameedi concedes that the IG has a valid basis to exclude him from participation in federal health care programs under section 1128(a)(1) of the Act.”  P. Br.at 3.  I construe the citation to section 1128(a)(1) as a typo and infer that Petitioner intended to cite to section 1128(a)(3).

² When adjusted for inflation, $347,463 in 2002 is approximately equivalent to $580,000 presently.  See https://www.bls.gov/data/inflation_calculator.htm.  With respect to the incarceration aggravating factor, Petitioner here was sentenced to 20 months in prison, and Petitioner contends he only served 4 months.  See P. Br. at 11.