SUBJECT:

Alexander Nepomuceno Jamias,

Petitioner,

The Inspector General.

DECISION

This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Affirmance of the I.G.'s determination to exclude the Petitioner herein, Alexander Nepomuceno Jamias, from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years. The I.G.'s motion and determination to exclude Petitioner are based on the terms of section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(a)(1). The facts in this case mandate the imposition of a five-year exclusion, and for that reason I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

On April 15, 2003, Petitioner and a co-defendant, Amable de los Reyes Aguiluz, M.D., were named by California's Attorney General in a six-count felony Complaint based on their practices relating to the referral of patients to a medical laboratory in Los Angeles known as Lab Serv. The investigating agent's declaration was later filed in the case, and that declaration explained the history and details of the crimes charged. Petitioner was named in two of the felony Counts.

Count 1 of the complaint charged both men with conspiring to solicit, make, and receive illegal kickbacks for referring patients of the California Medicare program known as Medi-Cal to Lab Serv, in violation of CAL. PENAL CODE § 182(a)(1) and CAL. WELF. & INST. CODE § 14107.2(a) and (b). The criminal conspiracy charged in that count was based on overt acts alleged to have occurred between January and June 2002.

Count 2 of the complaint charged Petitioner with unlawfully offering and paying kickbacks in return for the referral of Medi-Cal patients to Lab Serv over the period from January to May 2002, in violation of CAL. WELF. & INST. CODE § 14107.2(b).

Petitioner and the co-defendant Aguiluz both appeared in the Superior Court of California, County of Los Angeles, on March 16, 2004, represented by separate counsel. Aguiluz pleaded nolo contendere to Count 6 of the Complaint, which charged him with soliciting and receiving illegal considerations for medical referrals in violation of CAL. BUS. & PROF. CODE § 650. Although the complaint had originally charged this violation as a felony, by prosecution motion the charge in Count 6 was amended to a misdemeanor level, and Aguiluz' conviction was thus based on a misdemeanor violation. Details of Aguiluz' conviction and the I.G.'s subsequent exclusion of him from all federal health care programs may be found in Amable de los Reyes Aguiluz, DAB CR1417 (2006).

Immediately following Aguiluz' plea, Petitioner pleaded nolo contendere to a new charge not set out in the original complaint. The new charge was a misdemeanor, and had been added to the complaint on prosecution motion based on an agreement negotiated by Petitioner. This new misdemeanor charge was added "by interlineation" and took the form of an added Count 7 of the complaint. The new Count 7 charged Petitioner with violation of CAL. PENAL CODE §659, which forbids counseling or aiding another in the commission of a misdemeanor. The court accepted Petitioner's nolo contendere plea, found him guilty of the misdemeanor offense, and proceeded to sentencing immediately. Petitioner was sentenced to a one-year term of summary probation, was ordered to make restitution of $25,000.00 and pay a "restitution fine" of $100.00, and was required to pay other minor costs and fees. The remaining charges outstanding against Petitioner were dismissed. Petitioner sought and was granted early termination of his probation as soon as the ordered payments were made, on or about April 16, 2004.

As required by the terms of section 1128(a) of the Act, 42 U.S.C. § 1320a-7(a), the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. Section 1128(a)(1) of the Act mandates the exclusion of "[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under . . . any State health care program" for a period of not less than five years. On April 29, 2005, the I.G. notified Petitioner that he was to be excluded pursuant to the terms of section 1128(a)(1) of the Act for the mandatory minimum period of five years.

Acting through counsel, Petitioner timely sought review of the I.G.'s action by letter dated June 27, 2005. I convened a prehearing conference by telephone on December 9, 2005, pursuant to 42 C.F.R. § 1005.6. The I.G. expressed the intention to seek summary disposition on written submissions, and I established a schedule for the filing of documents and briefs. A summary of this conference appears in the Order of December 12, 2006.

The completion of briefing in this case has not been without complications. Petitioner has twice been obliged to respond to Orders to Show Cause. My examination of the exhibits submitted in the first round of briefing led me to direct the parties to obtain and submit additional evidentiary material, and to submit additional briefing on the narrow question dispositive of this appeal. In doing so I was guided by the Departmental Appeals Board's (Board) discussion of a very similar issue in Tanya A. Chuoke, R.N., DAB No. 1721 (2000). All briefing is now complete, and the record in this case closed on June 26, 2006.

The evidentiary record on which I decide the issues before me contains 18 exhibits. The parties submitted six Stipulated Exhibits (Stip. Exs. 1-6) on January 11, 2006. The I.G. proffered eight exhibits marked I.G. Exhibits 1-8 (I.G. Exs. 1-8) on January 13, 2006, and two more, marked I.G. Exhibits. 9 and 10 (I.G. Exs. 9, 10) on April 27, 2006. Petitioner proffered two exhibits, Petitioner's Exhibits 1 and 2 (P. Exs. 1, 2) on May 1, 2006. Neither party has objected to any of the proffered exhibits, and they are all admitted as designated.

II. Issues

The legal issues before me are limited to those enumerated at 42 C.F.R. § 1001.2007(a)(1). In the specific context of this record they are:

1. Whether the I.G. has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Act; and

2. Whether the proposed five-year period of exclusion is unreasonable.

The controlling authorities require that both issues be resolved in favor of the I.G.'s position. Section 1128(a)(1) of the Act mandates Petitioner's exclusion, for his predicate conviction has been established. A five-year period of exclusion is reasonable as a matter of law, since it is the minimum period established by section 1128(c)(3)(B) of the Act, 42 U.S.C. § 1320a-7(c)(3)(B).

III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), requires the mandatory exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any "individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII or under any State health care program." The terms of section 1128(a)(1) are restated in regulatory language at 42 C.F.R. § 1001.101(a). This statutory provision makes no distinction between felony convictions and misdemeanor convictions as predicates for mandatory exclusion.

The Act defines "convicted" as including those circumstances:

(1) when a judgment of conviction has been entered against the individual . . . by a . . . State . . . court, regardless of whether . . . the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual . . . by a . . . State . . . court;

(3) when a plea of guilty or nolo contendere by the individual . . . has been accepted by a . . . State . . . court; or

(4) when the individual . . . has entered into participation in a . . . deferred adjudication . . . program where judgment of conviction has been withheld.

Act, section 1128(i)(1)-(4), 42 U.S.C. §§ 1320a-7(i)(1)-(4). These definitions are repeated at 42 C.F.R. § 1001.2.

An exclusion based on section 1128(a)(1) is mandatory and the I.G. must impose it for a minimum period of five years. Section 1128(c)(3)(B) of the Act, 42 U.S.C. § 1320a-7(c)(3)(B). The regulatory language of 42 C.F.R. § 1001.102(a) affirms the statutory provision. The I.G. has not sought to enhance the five-year mandatory minimum period by offering to prove any of the carefully-defined aggravating factors set out at 42 C.F.R. §1001.102(b).

In this case Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. §1005.15(b) and (c).

IV. Findings and Conclusions

I find and conclude as follows:

1. On his plea of nolo contendere on March 16, 2004, in the Superior Court of California, County of Los Angeles, Petitioner Alexander Nepomuceno Jamias was found guilty of the misdemeanor offense of counseling or aiding another in the commission of a misdemeanor, in violation of CAL. PENAL CODE §659. Stip. Exs. 2, 5; I.G. Exs. 5, 7, 9.

2. Judgment of conviction was entered against Petitioner, and sentence was imposed upon him, in the Superior Court on March 16, 2004. Stip. Exs. 2, 5; I.G. Exs. 5, 7, 9.

3. The plea, finding of guilt, and judgment of conviction described above in Findings 1 and 2 constitute a "conviction" within the meaning of sections 1128(a)(1) and 1128(i)(1), (2), and (3) of the Act, and 42 C.F.R. § 1001.2.

4. For purposes of the exclusion remedy established by section 1128(a) of the Act, 42 U.S.C. § 1320a-7(a), a "conviction" established pursuant to any of the definitions set out at sections 1128(i)(1), (2), and (3) of the Act is unaffected by its subsequent expunction pursuant to the terms of CAL. PENAL CODE § 1203.4.

5. As part of his sentence for the conviction described above in Findings 1, 2, and 3, Petitioner was sentenced to pay $10,000.00 to the Centers for Medicare & Medicaid Services (CMS), in restitution and investigative costs related to his conviction. Stip. Exs. 2, 5, 6; I.G. Exs. 5, 7, 8, 9.

6. Petitioner's sentence described above in Finding 5 establishes a nexus and a common-sense connection between the criminal offense to which Petitioner pleaded nolo contendere, of which Petitioner was found guilty, and of which he was convicted, as noted above in Findings 1, 2, and 3, and the delivery of an item or service under a State health care program. Berton Siegel, D.O., DAB No. 1467 (1994); Charles Philip Colosimo, DAB CR1225 (2004); Nina Joanne Gram, a/k/a Nina Regan, DAB CR1168 (2004); Donald J. Purcell, II, M.D., DAB CR572 (1999); Larry W. Dabbs, R.Ph., et al., DAB CR151 (1991).

7. By reason of Petitioner's conviction, a mandatory basis exists for the I.G.'s exercise of authority, pursuant to section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs.

8. By reason of his conviction, Petitioner was subject to, and the I.G. was required to impose, the mandatory minimum five-year period of exclusion from Medicare, Medicaid, and all other federal health care programs. Section 1128(c)(3)(B) of the Act; 42 C.F.R. §1001.102(a).

9. On April 29, 2005 the I.G. notified Petitioner that he was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years, based on the authority set out in section 1128(a)(1) of the Act.

10. On June 27, 2005 Petitioner perfected his appeal from the I.G.'s action by filing a timely hearing request.

11. Because the five-year period of Petitioner's exclusion is the mandatory minimum period provided by law, it is therefore not unreasonable. Section 1128(c)(3)(B) of the Act; 42 C.F.R. §§1001.102(a) and 1001.2007(a)(2).

12. There are no disputed issues of material fact and summary disposition is therefore appropriate in this matter. Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Thelma Walley, DAB No. 1367 (1992).

V. Discussion

The essential elements necessary to support an exclusion based on section 1128(a)(1) of the Act are: (1) the individual to be excluded must have been convicted of a criminal offense; and (2) the criminal offense must have been related to the delivery of an item or service under Title XVIII of the Act (Medicare) or any state health care program. Thelma Walley, DAB No. 1367 (1992); Boris Lipovsky, M.D., DAB No. 1363 (1992); Andrew L. Branch, DAB CR1359 (2005); Lyle Kai, R.Ph., DAB CR1262 (2004) rev'd on other grounds, DAB No. 1979 (2005). The first essential element is no longer contested by Petitioner. P. Br. at 3. It is in any case fully established in the record before me. ⁽¹⁾ It is the second element -- the requirement that Petitioner's conviction be for an offense related to the delivery of an item or service under a protected program -- that Petitioner challenges.

From the outset of this appeal, Petitioner has insisted that "[I]f in fact Alexander Jamias suffered a conviction it was not related to a delivery of an item or service under the Medicare or a state health care program." Pet. Hearing Req., at 1. Petitioner asserts that "There is no evidence to support the conclusion that Petitioner (sic) conviction of violation of Penal Code § 659 was in connection with the delivery of health care items under Medi-Cal." P. Br., at 3. He focuses his argument in these terms:

The Petitioner was not convicted of any of the crimes alleged or referenced to, in any of the cases cited by the Inspector General. In fact, the Petitioner was convicted of aiding in an unknown and unstated misdemeanor. In reality the government accepted payments for their investigative costs and agreed to dismissal of all charges. Each and every one of the charges contained in Stipulated Exhibit 1 (Felony Complaint in case VA073867) were dismissed. If in fact the conspiracy, was to commit any of the health related charges, the government would have required a plea to count 1, as opposed to dismissing count 1 and allowing the Petitioner to plea to aiding an unknown misdemeanor. (Emphasis added).

P. Br., at 4.

On first inspection this argument is not unreasonable. The record of Petitioner's conviction is completely devoid of any text of the "interlineated" Count 7 to which he pleaded nolo contendere and on which he was convicted. The statute itself is general in its terms, a virtually-generic prohibition of "aiding and abetting" applied to the commission of a misdemeanor:

Whenever an act is declared a misdemeanor, and no punishment for counseling or aiding in the commission of such act is expressly prescribed by law, every person who counsels or aids another in the commission of such act is guilty of a misdemeanor.

CAL. PENAL CODE §659.

Perhaps remarkably, there is no record of what specific acts the "interlineated" Count 7 actually charged Petitioner with committing. The documents in the official Superior Court files do not contain the written text of any such "interlineation." Stip. Exs. 1, 2, 5; I.G. Exs. 1, 3, 5, 7. The transcript of the March 16, 2004 proceedings at which Petitioner pleaded nolo contendere, was convicted, and was sentenced reflects no oral recitation of the text of the "interlineated" Count 7. I.G. Ex. 9. Neither the Superior Court judge nor the prosecutor actually read out the charge in open court, and Petitioner waived a "[R]eading and advisement of the additional charge." I.G. Ex. 9, at 2. No presentence report was prepared. And although the Superior Court's minute order of the plea, sentence, and conviction recites "[t]he Court finds that there is a factual basis for Defendant's plea, and Court accepts plea," (Stip. Ex. 2, at 2; I.G. Ex. 5, at 2), there is simply no such colloquy establishing a factual basis recorded in the transcript. I.G. Ex. 9, page 2, lines 9-20; page 4, line 28; page 5, lines 1-27; page 8, lines 13-21.

Thus, at least as far as the objective and explicit terms of the "interlineated" Count 7 are concerned, there is utterly nothing to show what they were. Based on what this record can tell about the specific terms of Count 7, it is impossible to identify which underlying "predicate" misdemeanor it charged Petitioner with having aided and counseled, or to whom that aid and counsel was given. It is impossible to identify when, or even where, the violation of CAL. PENAL CODE §659 occurred, or the time and place of the "predicate" misdemeanor underlying the charged violation. As a result, it is impossible to understand Count 7's contents as being related to any part of the complaint or the investigator's detailed declaration. I.G. Ex. 2. As I wrote to the parties on March 17, 2006, based on what the record reveals about the contents of Count 7, it is entirely possible to understand that count as charging Petitioner with "[A]iding a misdemeanor as far removed from health care as maintaining a public nuisance, c.f. CAL. PENAL CODE §372, or dealing a game of three-card monte, c.f. CAL. PENAL CODE §330."

It is perfectly true that Petitioner's plea to Count 7 was associated with the first six charges of the complaint in many obvious ways, including a common docket number, common docket entries and minute orders, and common disposition through the dismissal of Counts 1 and 2 naming Petitioner after his conviction on Count 7. If there were any doubt of that association, the transcript of the plea-and-sentence hearing would remove that doubt. I.G. Ex. 9. It is also perfectly true that neither the transcript nor the minute order of the proceedings against Aguiluz reflect the actual reading of Count 6, the charge on which Aguiluz was convicted. But in Aguiluz' case, the specific facts of the offense were set out in Count 6 and were on their face enough to show, when read with other court records, that the offense was related to the delivery of an item or service under the Medi-Cal program; the only change in Count 6 was in the reduction of the level of the offense from felony to misdemeanor. Amable de los Reyes Aguiluz, DAB CR1417. (2006)

Those associations, no matter how obvious, are not enough to establish a nexus or connection between the crime of which Petitioner was convicted and a protected program, because Count 7 provides not a single detail as a starting-point for the building of such a nexus or connection. The Board has faced this situation before, in Bruce Lindberg, D.C., DAB No. 1280 (1990), Catherine L. Dodd, R.N., DAB No. 1345 (1992), and Tanya A. Chuoke, R.N., DAB No. 1721 (2000). Its view is not easily misunderstood:

Even evidence of the basis for an indictment for a program-related offense related to health care delivery is irrelevant unless it resulted in the conviction on which the I.G. then relied. Thus, as the Board noted in a prior case dealing with a conviction under section 1128(a)(2), "it is not sufficient to show that Petitioner was charged with a criminal offense "relating to . . . abuse of patients" . . . . Instead, it must be established that Petitioner was convicted of such an offense." Bruce Lindberg, DAB No. 1280, at 7 (1991); see also Bruce Lindberg, DAB No. 1386 (1993) (appeal from remand). The I.G. responded to Petitioner's argument here with a bald assertion that the indictment was the basis for the conviction, citing only to the indictment itself to support this claim. I.G. Br. at 5.(Footnote omitted) The content of the indictment cannot demonstrate by itself that a later conviction resulted from that particular indictment and no other, without more. The I.G. did not offer anything more to show that the conviction in the record was tied to the indictment or the events that led to the indictment.

Tanya A. Chuoke, R.N., DAB No. 1721, at 7.

The Board's decision in Chuoke went beyond simply pointing out the evidentiary insufficiency of the I.G.'s case: it offered suggestions about the application of the summary-disposition process authorized by 42 C.F.R. § 1005.4(b)(12) to the issue of whether a particular conviction is a program-related offense. Part II of my March 17, 2006 letter attempted to apply those suggestions, and it resulted in the addition of the transcript to this record. It also resulted directly in the addition to the record of an item extrinsic to the Superior Court records, and precipitated the addition of two other such extrinsic items.

The first extrinsic item is the declaration given on March 27, 2006, by the California prosecutor in the case. I.G. Ex. 10. Paragraphs 1, 2, and 4 of the declaration recite uncontested procedural facts in the criminal case, but paragraph 3 asserts: "Defendant Alexander Jamias' plea was for an offense related to payment by Medi-Cal, a Federal healthcare program." The second extrinsic item is the declaration given on May 1, 2006, by Petitioner's present counsel, who represented Petitioner in the criminal case. This declaration, which rather obviously constitutes testimony by counsel in this case, denies that the plea and conviction were for a Medi-Cal related offense, and asserts that present counsel negotiated a plea to CAL. PENAL § 659, "[S]pecifically . . . because it did not relate to a Federal healthcare program." P. Ex. 1. The third extrinsic item is Petitioner's own declaration, in which he asserts that he "[W]as informed, advised, and believed at all times that my plea to California Penal Code § 659 was not for an offense related to payment by Medi-Cal, or any other Federal healthcare program." P. Ex. 2.

Now, it is well-established that certain kinds of extrinsic evidence outside immediate court records themselves may be considered in determining the relationship of a conviction to a protected program. But the criteria for assessing extrinsic evidence warn that "[S]uch evidence is probative only if it is reliable and credible." Narendra M. Patel, M.D., DAB No. 1736 (2000). I cannot accept any of the three extrinsic exhibits as reliable, for they purport to describe the mental processes of the declarants, the Superior Court judge, and the opposing parties more than two years earlier, and purport to establish facts far beyond any that could be reasonably inferred from the contemporaneous written and transcribed record of events. P. Ex. 2 is irrelevant: what Petitioner may have been told, and what he may have believed, are not controlling on the issue of Count 7's objective nature. The three declarations are not reliable because each is in its own way transparently self-serving and at the same time beyond the reach of cross-examination. P. Ex. 1 is unreliable because it deliberately obscures this discussion by asserting what Count 7 was not about while coyly omitting to state what facts it did contemplate. The three declarations are not reliable because they are not, and by their nature cannot be, verified or corroborated by any objective evidence in this record. They are not credible because they are directly, mutually, and absolutely contradictory of one another without providing any objective support for their conflicting assertions. Taken together, they are nothing more than unsupported ipse dixit. I give no probative weight whatsoever to I.G. Ex. 10, P. Ex. 1, or P. Ex. 2.

That is not to say, however, that the official records of the proceedings in Superior Court do not establish one material fact beyond the point of dispute. They do establish such a fact, and that fact is sufficient to show the nexus and common-sense connection between Count 7 and the protected programs. The "$25,000.00 total restitution" (Stip. Ex. 2, at 2; I.G. Ex. 5, at 2) Petitioner was sentenced to pay included a payment of $10,000.00 to the Centers for Medicare & Medicaid Services (CMS), an agency organized within the United States Department of Health and Human Services (DHHS), and the federal agency responsible for managing or overseeing and funding virtually all federal and state health care programs, specifically including Medi-Cal.

The Superior Court's minute order of the plea-and-sentence hearing shows that Petitioner was required to pay "$25,000.00 total restitution." Stip. Ex. 2, at 2; I.G. Ex. 5, at 2. The Superior Court form on which the details of Petitioner's plea were recorded shows $10,000.00 of that sum allocated to "USDHHS-CMMS." Stip. Ex. 5, at 2; I.G. Ex. 7, at 2. The transcript of the plea-and-sentence hearing shows an oral colloquy reflecting that allocation. I.G. Ex. 9, at 8. The record before me also contains a copy of Petitioner's March 24, 2004 check in that amount made to "U.S. DHHS - CMMS," Stip. Ex. 6, at 2, and I.G. Ex.8, at 2, as well as an April 9, 2004 transmittal letter from Petitioner's counsel describing the "two checks in restitution" as including the $10,000.00 payment to "U.S. DHHS-DMMS (sic)." Stip. Ex. 6, at 1; I.G. Ex. 8, at 1. These documents establish beyond dispute that Petitioner's conviction resulted in a sentence by which he was required to pay $10,000.00 to the agency responsible for funding and overseeing the Medi-Cal health care program. ⁽²⁾

By the time of the telephone conference of May 18, 2006, the record was clear on that point and as complete as it could be made to be. The Order entered later, on June 14, 2006, summarized that conference, and reflected that the parties' attention had been directed during the conference to the specific question of "[T]he sufficiency of that restitution, in itself, to establish that Petitioner's conviction is 'related to' the delivery of an item or service under a protected program . . ." Thus this case's remaining issue of material fact was resolved on that record in the terms I here repeat: as part of his sentence for violating CAL. PENAL CODE § 659, Petitioner was required to pay $10,000.00 to CMS in restitution of its investigative costs related to his conviction. The legal question remained: did that restitution, without more, establish the "nexus and common-sense connection" described in Berton Siegel, D.O., DAB No. 1467 (1994), and required to satisfy the second essential element? I conclude now that it is sufficient, for reasons which I shall explain below.

But it may first be helpful to set outside the following discussion a fairly large group of decisions, originating both with the Board and with the Administrative Law Judges (ALJs) of this forum, that must be distinguished on their facts from the present case. Those decisions have arisen in cases where petitioners have been convicted on charges displaying no explicit link to a protected program, but where additional evidence -- either intrinsic evidence from court records or reliable and credible extrinsic evidence -- established the link. For example, in Surabhan Ratanasen, M.D., DAB No. 1138 (1990), the records of that petitioner's conviction included a stipulation acknowledging the conviction's link with a prior indictment on charges obviously related to a protected program. In Robert C. Greenwood, DAB No. 1423 (1993), the link appeared in the conviction's recitation of a specific sum of money, a specifically-identified patient, and specific dates. In Andrew Anello, DAB No. 1803 (2001), a case in which the conviction was based on a federal statute at least in some ways comparable to CAL. PENAL CODE § 659, the conviction was tied to the "predicate" crime of another by an explicit factual resumé. In Donald J. Purcell, II, M.D., DAB CR572 (1999), the link to a protected program was found in the text of a civil settlement agreement connected to the admitted misconduct. And in Larry W. Dabbs, R.Ph., et al., DAB CR151 (1991), the petitioners' admitted misdemeanors of mislabeling prescriptions were linked by their dates to an earlier indictment charging explicitly program-related misconduct involving false prescriptions. As I have pointed out above, the present situation reveals absolutely nothing of the details of Petitioner's actual conviction: there is no date, no locus, no co-actor, no named victim, no "predicate" crime, no monetary sum, no identified act or omission, and no hint in CAL. PENAL CODE § 659 itself that could even begin to forge such a link as those just described. To adopt the ALJ's words in Dabbs, the record before me tells nothing of the "circumstances of the offense" of which Petitioner has been convicted.

It is a footnote in Dabbs, however, that provides the first expression of support for the proposition that court-ordered restitution to CMS can be enough, by itself, to establish that a conviction is related to the delivery of an item or service to a protected program. Although the ALJ found other evidence of the nexus, he pointedly observed in that footnote:

One term of Petitioners' sentences was that they pay restitution to Tennessee Medicaid. This condition in and of itself establishes that the victims of Petitioners' crimes included Tennessee Medicaid.

Larry W. Dabbs, R.Ph., et al., DAB CR151, at 6-7, n. 4.

The next clear support for such a proposition can be found in Purcell. The civil settlement agreement in Purcell's conviction forged the link to Medicare and Medicaid, but the ALJ indicated another route to the same conclusion:

In addition, I find that insofar as such Agreement provides for Petitioner's restitution to the Medicare and Medicaid programs, such Agreement serves to demonstrate that his criminal conviction is related to the delivery of items or services under Medicare and Medicaid.

Donald J. Purcell, II, M.D., DAB CR572, at 8.

In Nina Joanne Gram, a/k/a Nina Regan, DAB CR1168 (2004), the petitioner was convicted on the basis of a misdemeanor information that did not on its face reflect a link to a protected program. But the ALJ observed that monetary amounts and dates set out in the information matched those set out in the original indictment that had charged petitioner with a crime obviously program-related, and found the nexus thereby established. The ALJ found other evidence of the nexus, as well:

The fact that Petitioner was sentenced to pay restitution to CMS is evidence that the Medicare program was the victim of the theft of public money which Petitioner was convicted of aiding and abetting. It is well-established that an offense is program-related where a covered program is the victim of the criminal conduct.

Nina Joanne Gram, a/k/a Nina Regan, DAB CR1168, at 6.

It may be strictly accurate to characterize these expressions as dicta, since in each case the ALJ found other evidence to support the existence of the nexus; nevertheless, the three expressions certainly are to be understood as validations of the notion that restitution to a program or to the agency in charge of a program is evidenc

e of a nexus between conviction and a protected program. In Charles Philip Colosimo, DAB CR1225 (2004) the ALJ said precisely that in writing that restitution to Medicaid "is further evidence" of a nexus with the program. Charles Philip Colosimo, DAB CR1225, at 6-7.

None of these four cases presented a record in which restitution was the sole evidence of a nexus between conviction and delivery of an item or service under a protected program. The instant case does. But the four cases, and particularly Dabbs, strongly suggest that when such evidence is present, it is highly probative of the nexus. I believe that the principle to be distilled from the four cases is this: if an individual or entity has been convicted of a criminal offense, then proof that any sentence based on that conviction included the payment of restitution to a protected program or the agency in charge of that program creates a rebuttable presumption of a nexus or common-sense connection between the conviction and the delivery of an item or service under the program.

In this case, the fact that Petitioner was required as part of his sentence to pay restitution to CMS is settled beyond genuine dispute. If I have correctly understood the principle underlying Dabbs, Purcell, Gram, and Colisimo as set out above, then the application of that principle requires that I find that a nexus and common-sense connection exists between Petitioner's conviction of violating CAL. PENAL CODE § 659 and the delivery of an item or service under the Medi-Cal program. The I.G. has proved the second essential element necessary to support Petitioner's exclusion.

The five-year period of exclusion proposed in this case is the irreducible minimum required by section 1128(c)(3)(B) of the Act. Neither the Departmental Appeals Board nor I may reduce it. Mark K. Mileski, DAB No. 1945 (2004); Salvacion Lee, M.D., DAB No. 1850 (2002). As a matter of law it is not unreasonable. 42 C.F.R. § 1001.2007(a)(2).

In an exclusion case such as this one, summary disposition is appropriate when there are no disputed issues of material fact, when the undisputed facts are clear and not subject to conflicting interpretation, and when those undisputed facts demonstrate that one party is entitled to judgment as a matter of law. Summary disposition is explicitly authorized by the terms of 42 C.F.R. § 1005.4(b)(12), and this forum relies on FED. R. CIV. P. 56 for guidance in applying that regulation. Tanya A. Chuoke, R.N., DAB No. 1721; Robert C. Greenwood, DAB No. 1423; Thelma Walley, DAB No. 1367; John W. Foderick, M.D., DAB No. 1125 (1990). When the undisputed material facts of a case support summary disposition, there is neither a right to a full evidentiary hearing nor a need for one. Surabhan Ratanasen, M.D., DAB No. 1138; John W. Foderick, M.D., DAB No. 1125. The material facts in this case are undisputed, clear, and unambiguous. They support summary disposition as a matter of law, and this Decision issues accordingly.

VI. Conclusion

For the reasons set out above, the I.G.'s motion for summary affirmance should be, and it is, GRANTED. The I.G.'s exclusion of Petitioner Alexander Nepomuceno Jamias from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years, pursuant to the terms of section 1128(a)(1) of the Act, 42 U.S.C.§ 1320a-7(a)(1), is thereby sustained.

Richard J. Smith

Administrative Law Judge

1. As one of the bases for contesting the exclusion, Petitioner's hearing request included the assertion that his conviction "[h]as been set aside and dismissed." Petitioner has not raised or referred to that argument at any subsequent point in this appeal. I have been shown no evidence of any such final action in the Superior Court with respect to Petitioner's conviction, but Stip. Ex. 5, at 2, and I.G. Ex. 7, at 2, bear the handwritten notation "People will not oppose motion per P.C. 1203.04 for expungement and dismissal." It may therefore be prudent to simply state here that to whatever degree Petitioner may still assert that position, I have considered it and have rejected it, for the reasons set out more fully in Mark D. Perrault, M.D., DAB CR1471 (2006) and Amable de los Reyes Aguiluz, DAB CR1417 (2006). For purposes of the exclusion remedy established by section 1128(a) of the Act, a "conviction" established pursuant to any of the definitions set out at sections 1128(i)(1), (2), and (3) of the Act is unaffected by its subsequent expunction pursuant to the terms of CAL. PENAL CODE § 1203.4.

2. Petitioner's counsel cavils at the description of the $10,000.00 payment to CMS as "restitution." His June 26, 2006 memorandum points to places in the court records where the word "restitution" does not appear. He makes much of the word's absence, but he does not explain why the payment of investigative costs incurred by CMS in protecting a program is any less demonstrative of a link to such a program than the compelled repayment to it of monies stolen from it. Less craft and more candor might have served counsel better: his own letter of April 9, 2006, written in words presumably of his own choosing, expressly describes the $10,000.00 payment as "restitution." Stip. Ex. 6, at 1.