Department
of
Health
and
Human
Services
DEPARTMENTAL APPEALS BOARD
Civil
Remedies
Division
In the Case of:
Young
Moon, M.D.,
Petitioner,
-
v.
-
The
Inspector General.
)
)
)
Date: March
8,
2007
Docket No. C-06-615
Decision No. CR1572
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)
)
)
)
)
)
DECISION
Petitioner, Young Moon, M.D., a Tennessee oncologist, orchestrated a scheme whereby
she gave her patients only partial doses
of
their chemotherapy and side effect
medications, but recorded in their patient charts that she had given the full doses, and
billed Medicare, Medicaid, and Blue Cross for the full doses. She was caught, convicted
on four felony counts, sentenced to more than fifteen years in prison, and ordered
to
pay
more
than $430,000 in restitution. Based on her conviction, the Inspector General (I.G.)
excluded her from participation in Medicare, Medicaid, and all federal health care
programs for a period
of
27 years, and she has filed this appeal.
For
the reasons discussed below, I find that the I.G. is authorized to exclude Petitioner
under sections I 128(a)(1) and 1128(a)(3)
of
the Social Security Act (Act), and that the
27-year exclusion falls within a reasonable range.
I.
Background
By letter dated July
31,2006,
the I.G. notified Petitioner that she was being excluded
from participation in Medicare, Medicaid, and all federal health care programs for a
period
of
27 years. I.G. Ex.
1.
In that letter, the I.G. explained that he
is
authorized
to
exclude Petitioner under sections 1128(a)(1) and 1128(a)(3)
of
the Act based on her
conviction in the United States District Court for the Middle District
of
Tennessee
of:
(1)
2
a criminal offense related
to
the delivery
of
an item or service under the Medicare or a
state health care program (1128(a)(1)); and (2) a criminal offense related to fraud, theft,
embezzlement, breach
of
fiduciary responsibility, or other financial misconduct in
connection with the delivery
ofa
health care item or service (1128(a)(3)).
Petitioner thereafter requested a hearing, and the case has been assigned to me for
decision.
I held a prehearing conference on September
6,
2006. At that time, the parties agreed that
the matter could be decided based on written submissions. Order Scheduling Submission
of
Briefs and Documents (September
8,
2006). In accordance with my order, the
LG.
filed a Brief in Support
of
Exclusion, along with six exhibits (LG. Exs. 1 - 6). Petitioner
filed a brief objecting
to
the LG.'s exclusion. With this submission, she included a set
of
unmarked documents. To conform to Civil Remedies Division procedures, we have
marked these documents Petitioner's Exhibits 1 - 6 (P. Exs. 1-6). Petitioner also filed a
supplemental memorandum, and the LG. filed a reply brief. I receive into evidence
LG.
Exs.I-6
andP.
Exs. 1-6.
II. Issue
The issues before me are whether the LG. has a basis upon which to exclude Petitioner
from participation in the Medicare, Medicaid, and all federal health care programs, and,
if
so, whether a 27-year exclusion
is
reasonable.
III. Discussion
Section 1128(a)(1) requires that the Secretary
of
Health and Human Services (Secretary)
exclude an individual who has been convicted under federal or state law
of
a criminal
offense relating to the delivery
of
an item or service under Medicare or a state health care
program.
l
Section 1128(a)(3) directs the Secretary to exclude an individual convicted
of
a felony "relating to fraud, theft, embezzlement, breach
of
fiduciary responsibility, or
other financial misconduct" in connection with the delivery
of
a health care item or
service. See also 42 C.F .R.
§ 1001.101. Individuals excluded under either section
1128(a)(1) or section 1128(a)(3) must be excluded for a period
of
not less than five years.
Act, section 1128(c)(3)(B).
1 The term "state health care program" includes a state's Medicaid program.
Section 1128(h)(1)
of
the Act; 42 V.S.c. § 1320a-7(h)(I).
3
The
Secretary has delegated to the I.G. the authority to impose exclusions. 42 C.F.R. §
1001.40 1 (a). So long as the period
of
exclusion is within a reasonable range, based on
demonstrated criteria, I have no authority to change it.
Joann Fletcher Cash, DAB No.
1725, at 7 (2000),
citing 57 Fed. Reg. 3298, 3321 (1992).
A. Section 1128(a)(1) provides a basis
for
excluding Petitioner
from
program
participation because
she
was convicted
of
a criminal offense relating to the
delivery
of
an item
or
service
under
Medicare
or
a state health care program;
and
section 1128(a)(3) provides an additional independent basis
for
excluding
Petitioner because
she
was convicted
of
a
felony
relating to
fraud
in connection
with the delivery
of
a health care item
or
service.
2
Petitioner concedes, as she must, that she has been convicted on three felony counts
of
health care fraud (18 U.S.C. § 1347) and one felony count
of
making false statements
regarding health care matters (18 U.S.C. § 1001). I.G. Ex. 4. She argues, nevertheless,
that she was not
"duly
convicted" because her criminal prosecution was riddled with
errors. The regulations, however, explicitly preclude such a collateral attack on the
underlying conviction.
When the exclusion is based on the existence
of
a criminal conviction
...
where the facts were adjudicated and a final decision was made, the basis
for the underlying conviction
...
is not reviewable and the individual
or
entity
may
not
collaterally attack it either on substantive
or
procedural
grounds, in this appeal.
42 C.F.R..§ 1001.2007(d);
Joann Fletcher Cash, DAB No. 1725 (2000); Chander
Kachoria, R.Ph.,
DAB No. 1380, at 8 (1993) ("There is no reason to 'unnecessarily
encumber the exclusion process' with efforts to reexamine the fairness
of
state
convictions.");
Ira Katz, Little Five Points Pharmacy, DAB CR1044 (2003). Petitioner
"[s]iinply cannot challenge the facts relating to his criminal conviction
....
" See Jose
Grau,
DAB
CR930 at
12
(2002V
2 I make findings
of
fact and conclusions
of
law to support
my
decision in this
case. I set forth each finding below, in italics, as a separate numbered
or
lettered heading.
3 During the prehearing conference, I explained the limits
of
my
authority: I
advised Petitioner that I cannot look behind her criminal conviction.
Her
arguments
regarding the effectiveness
of
her criminal attorney and other purported errors in the
criminal trial are, therefore, irrelevant. I reiterated this advice in
my
subsequent order.
(continued ... )
4
Y.·continued)
Order
Scheduling Submission
of
Briefs
and
Documents at 2 (September 8, 2006).
Nevertheless, her appeal consists almost exclusively
of
a collateral attack on her criminal
conviction.
And
the charges upon which she was convicted unquestionably fall within the purview
of
both
1 1 28(a)(1)
and
l128(a)(3). Petitioner was a Tennessee physician who specialized in
oncology
and
hematology.
Her
patients were generally cancer patients. I.G. Ex. 3, at
1.
From
at least 1999 through the beginning
of
2002, she knowingly executed a scheme to
defraud
the Medicare
and
Medicaid programs,
and
private insurers. Pursuant to
her
scheme, she provided
her
patients only partial doses
of
chemotherapy medications and
side
effect medications. She then billed the insurers for the full doses, thus receiving
reimbursement for substantially more medications than she provided to
her
patients.
On
the
patient charts she recorded
(or
instructed her employees to record) that she had
administered the full doses. I.G. Exs.
3,4.
Based
on
these facts, she was convicted on
three felony counts
of
health care fraud
and
one count
of
making false statements
regarding health care matters. Obviously,
her
crimes related to the delivery
of
items and
services under both Medicare
and
state health care programs.
Her
felony fraud
convictions were for actions connected to the delivery
of
a health care item
or
service.
The
I.G. thus has bases for imposing an exclusion.
B.
The 27-year exclusion falls within a reasonable range.
Having
found a basis for the exclusion, I next consider whether the 27-year exclusion
imposed falls within a reasonable range.
1.
Aggravating factors justify lengthening the period
of
exclusion beyond the jive-year minimum.
The
statute mandates a five-year minimum exclusion. Act, section
ll28(c)(3)(B);
42
C.F.R. § 1001.2007(a)(2). Specific aggravating factors that are
not
offset by specified
mitigating factors
may
justify increasing the period
of
exclusion beyond the five-year
minimum. 42 C.F.R. § 1001.102. Here, the I.G. cites four
of
the nine aggravating factors
listed in the regulations as bases for lengthening Petitioner's period
of
exclusion: (1)
Petitioner's crimes resulted in program (and other entities') financial losses in excess
of
$5,000; (2) the acts that resulted in Petitioner's conviction were committed over a period
of
more than one year; (3) the sentence imposed
by
the court included incarceration; and
(4) Petitioner was the subject
of
other adverse actions
by
a state agency. 42 C.F.R.
§§
1001.102(b)(1) (2) (5)
and
(9).
5
Program financial loss. The I.G. correctly determined that Petitioner's actions resulted in
financial losses to government health care programs and to Blue Cross well in excess
of
$5,000. The sentencing court made specific findings as to the dollar amount
of
losses
sustained as a result
of
Petitioner's crimes, and ordered her to pay restitution. The Court
determined total losses
of
$432,238. Losses to the Medicare program specifically were
$328,369. Losses
to
the State
of
Tennessee, which I reasonably infer as losses to the
S tate Medicaid program, were $11,723. The remaining $92,146 loss was
to
Blue
CrosslBlue Shield
of
Tennessee. I.G.
Ex.
4, at
5.
Thus the actual losses were many,
many
times the $5,000 necessary
to
justify extending the period
of
exclusion.
Duration
of
crimes. Petitioner's criminal scheme began in June 1999 and continued until
January 2002, making the duration
of
her criminal activity a second aggravating factor.
I.O. Ex. 3, at 3; I.G. Ex. 4, at
1;
I.G. Ex. 5, at
2.
Incarceration. As a result
of
her crimes, Petitioner was sentenced to a total
of
188 months
- 15 years and eight months - incarceration. I.G. Ex. 4, at
2.
This is significant jail time
and
underscores the seriousness
of
her crimes.
Other adverse actions. Based on Petitioner's convictions and her admission
of
underlying
misconduct, the Tennessee Board
of
Medical Examiners revoked Petitioner's medical
license effective March 16,2006. I.G. Exs. 5,
6.
The I.G. may consider this state adverse
action another aggravating factor.
Unless offset by one or more mitigating factors, these factors justify a significant increase
in the length
of
Petitioner's exclusion.
2.
No
mitigating factors
justify
reducing
the
period
of
exclusion.
The regulations consider mitigating just three factors: (1) a petitioner was convicted
of
three or fewer misdemeanor offenses
and
the resulting financial loss to the program was
less than $1,500; (2) the record demonstrates that a petitioner had a mental, physical, or
emotional condition that reduced his culpability; and (3) a petitioner's cooperation with
federal or state officials resulted in others being convicted or excluded, or additional
cases being investigated, or a civil money penalty being imposed. 42 C.F.R.
§
100 1.102( c). Obviously, because Petitioner's felony conviction involved financial losses
to the program significantly greater than $1,500, the first factor does not apply here. She
does not claim that any medical condition reduced her culpability, nor argue any
cooperation with government officials. Therefore, this case presents no mitigating factors
to
justify reducing the period
of
exclusion.
6
The
Secretary has delegated to the I.G. the authority to impose exclusions for convictions
relating to health care fraud. 42 C.F .R. § 1001.20 1 (a). So long as the period
of
exclusion
is within a reasonable range, based on demonstrated criteria, I have no authority to change
it. Joann Fletcher Cash, DAB No. 1725, at 7 (2000), citing 57 Fed. Reg. 3298,3321
(1992). In this case, Petitioner's crimes, which I find remarkable for their callousness,
demonstrate that she presents a significant risk to the integrity
of
health care programs,
not
to
mention patient health and safety. The financial loss she caused greatly exceeds
the
regulatory threshold for aggravation. Her crimes continued for at least eighteen
months, and were so serious as to merit lengthy incarceration. She justifiably lost her
medical license. These aggravating factors underscore how dangerous she
is
and more
than justify a 27-year exclusion.
IV. Conclusion
For
the reasons set forth above, I conclude that the I.G. was authorized, under sections
1128(a)(1) and 1128(a)(3), to exclude Petitioner from participation in Medicare,
Medicaid, and all other federal health care programs. Considering the totality
of
the
evidence, I find the 27-year exclusion within a reasonable range.
/s/
Carolyn Cozad Hughes
Administrative Law Judge
