[Federal Register Volume 63, Number 244 (Monday, December 21, 1998)]
[Notices]
[Pages 70431-70433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33708]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 96-44]
Melvin N. Seglin, M.D. Continuation of Registration
On August 21, 1996, the then-Director, Office of Diversion Control,
Drug Enforcement Administration (DEA), issued an Order to Show Cause to
Melvin N. Seglin, M.D. (Respondent) of Evanston, Illinois, notifying
him of an opportunity to show cause as to why DEA should not revoke his
DEA Certificate of Registration AS4328274, under 21 U.S.C. 824(a)(5),
and deny any pending applications for renewal of such registration as a
practitioner, under 21 U.S.C. 823(f), for reason that he has been
excluded from participation in a program pursuant to 42 U.S.C. 1320a-
7(a).
By letter dated August 29, 1996, Respondent, acting pro se, filed a
timely request for a hearing, and following prehearing procedures, a
hearing was held in Chicago, Illinois on April 9 and 10, 1997, before
Administrative Law Judge Mary Ellen Bittner. At the hearing, both
parties called witnesses to testify and introduced documentary
evidence. After the hearing, both parties submitted proposed findings
of fact,
[[Page 70432]]
conclusions of law and argument. On May 29, 1998, Judge Bittner issued
her Opinion and Recommended Ruling, Findings of Fact, Conclusions of
Law and Decision, recommending that Respondent's DEA Certificate of
Registration be continued. Neither party filed exceptions to the
Administrative Law Judge's Opinion and Recommended Ruling and on July
1, 1998, Judge Bittner transmitted the record of these proceedings to
the then-Acting Deputy Administrator.
The Deputy Administrator has considered the record in its entirety
and pursuant to 21 CFR 131667, hereby issues his final order based upon
findings of fact and conclusions of law as hereinafter set forth. The
Deputy Administrator adopts, in full, the Opinion and Recommended
Ruling, Findings of Fact, Conclusions of Law and Decision of the
Administrative Law Judge. His adoption is in no manner diminished by
any recitation of facts, issues and conclusions herein, or of any
failure to mention a matter of fact or law.
The Deputy Administrator finds that Respondent is a psychiatrist
licensed to practice medicine in Illinois. He has held DEA Certificate
of Registration AS4328274 since 1971. In 1981, he enrolled as a
provider with the Illinois Department of Public Aid (IDPA) Medical
Assistance Program. In submitting claims for reimbursement, providers
must list the appropriate code for each service performed. IDPA does
not reimburse providers for either telephone consultations or for time
spent documenting a patient file.
In 1990, the Illinois State Police initiated an investigation of
Respondent after learning that he was filing an unusually large number
of IDPA claims. Respondent routinely billed IDPA for his care of
patients in long-term care facilities listing code 90844. The
description accompanying code 90844 is ``[i]ndividual medical
psychotherapy, with continuing medical diagnostic evaluation, and drug
management when indicated, including psychoanalysis, insight oriented,
behavior modifying or supportive psychotherapy; 45 minutes minimum.''
Investigators interviewed personnel at four long-term care
facilities where Respondent saw patients. The personnel at these
facilities indicated that Respondent spent on average between 5 and 15
minutes with each patient. The investigators later calculated the
maximum average amount of time that Respondent could have spent with
each patient at each facility by using the total number of patients he
had at a facility and the total time he spent at the facility. These
calculations revealed that on average, Respondent could not have spent
more than 26 minutes with each patient at one facility; 15.4 minutes
per patient at another facility; 19.6 minutes per patient at a third
facility; and 10.6 minutes with each patient at the fourth facility.
On April 11, 1991, investigators interviewed Respondent concerning
his billing practices. Respondent indicated that he spent approximately
15 minutes with each patient at the long-term care facilities.
Respondent advised the investigators that he was familiar with the
various billing codes and the amount of time he must spend with a
patient to use a particular code. He indicated however that when
determining the length of a patient session, he included time spent
documenting the patient chart. He further indicated that although he
knew that telephone consultations were not covered, he billed for them
because he considered them crisis interventions. Respondent
acknowledged that he was accountable for the discrepancies between the
billing codes he used and the actual amount of time spent with each
patient, and that he had had ``many sleepless nights'' over this
matter. Respondent justified the billings by considering the time and
effort he expended and the complexity of the cases. There was no
attempt by Respondent to conceal his over-billing and no evidence that
Respondent charged for visits that did not occur.
A second interview was conducted with a court reporter present on
April 12, 1991, during which Respondent essentially repeated what he
had said during the first interview. Respondent stated that other than
carelessness, he could provide no explanation for the discrepancy
between the billing codes he used and the actual time he spent with his
patients. He stated that he was familiar with the billing codes and
therefore could not plead ignorance. He acknowledged that he was
legally responsible for his billing practices and that he had been
improperly using the 45-minute code for his patient visits.
An auditor with the Illinois State Police Medicaid Fraud Control
Unit conducted an analysis of the value of the services for which
Respondent billed as opposed to the value of those he actually
performed. The analysis revealed that between January 1, 1987 and March
31, 1991, Respondent was overpaid $148.309.23 by Medicare and that
between October 1, 1987 and April 30, 1991, he was overpaid $224,602.08
by Medicaid. Therefore the auditor concluded that Respondent over-
billed approximately $372,911.31 during the period covered by the
investigation.
On February 19, 1992, Respondent was indicted in the Circuit Court
of Cook County, Illinois, on one felony count of vendor fraud and two
felony counts of theft. On April 21, 1993, following a bench trial,
Respondent was convicted of vendor fraud, and on September 8, 1993, he
was sentenced to 30 months probation and ordered to pay restitution
totaling $200,000 to the IDPA and the United States Department of
Health and Human Services (DHHS).
Thereafter, on April 15, 1994, DHHS notified Respondent of his
five-year mandatory exclusion from participation in the Medicare
program pursuant to 42 U.S.C. 1320a-7(a). Then on June 9, 1994, the
IDPA terminated Respondent from its Medical Assistance Program. On
December 23, 1994, Respondent and the United States Attorney for the
Northern District of Illinois entered into a Stipulation for Compromise
pursuant to which the United States Attorney agreed not to bring
Federal criminal charges against Respondent for Medicare fraud in
exchange for Respondent's agreement to pay $80,000 to the United
States.
At the hearing in this matter, two psychiatrists testified who
began seeing Respondent's long-term care patients following his
termination from the Medical Assistance Program. Both stated that the
patients had received excellent care from Respondent. One testified
that seeing patients in a facility is different than seeing them in an
office setting, that it is not uncommon for patients at a facility to
request attention from the doctor even though they are not scheduled
for a session on that day, and that he is frequently called for
emergencies at odd times. The psychiatrist further testified that he
does not use the 90844 code for his long-term care patients because he
generally spends less time with those patients than required for that
code.
Personnel from the various long-term care facilities where
Respondent saw patients testified on Respondent's behalf. They
indicated that Respondent is a capable physician who is honest,
compassionate and attentive to his patients. He frequently had
unscheduled informal and emergency contacts with his patients and he
worked well with the staffs at the various facilities.
Respondent is currently providing medical services to inmates at a
local jail. According to the medical director of the company that hired
Respondent, he fully disclosed his background before he was hired. She
testified that Respondent is a reliable and conscientious employee
[[Page 70433]]
whose performance is excellent. The medical administrator further
testified that Respondent needs to be able to provide controlled
substances to the inmates in order to keep his position with the
company.
Finally, Respondent testified on his own behalf. He stated that the
billing codes did not take into account the nature of the work
performed in long-term care facilities, but instead seemed to be geared
towards office visits. Respondent explained that he did not time his
sessions with patients at the long-term care facilities because he was
often approached informally by patients. Additionally, emergencies and
interruptions made it difficult to accurately time the sessions.
Regarding his over-billing, Respondent testified that he never intended
to conceal his method of billing, that he had thought that it was
acceptable to use the code he did, and that he had never thought such
conduct would lead to a criminal indictment. When asked how he
determined when he would use the 90844 code, Respondent replied, ``it
depended on the * * * complexity, the diagnosis, how much potential was
involved, how many interruptions I would have in my weekly schedule
with phone calls or something having to do with a patient.'' Respondent
further testified, ``I knew that I was billing for 45 minutes services
and I was not providing 45 minutes services.'' Respondent distinguished
his actions from those of doctors who charge for visits that never took
place.
According to Respondent, the state medical board placed his medical
license on probation for one year and imposed a requirement that he
receive ten hours of continuing medical education. He further testified
that he needs to be able to handle controlled substances in his current
position treating inmates at the local jail.
The Deputy Administrator may revoke or suspend a DEA Certificate of
Registration under 21 U.S.C. Sec. 824(a), upon a finding that the
registrant:
(1) Has materially falsified any application filed pursuant to
or required by this subchapter or subchapter II of this chapter;
(2) Has been convicted of a felony under this subchapter or
subchapter II of this chapter or any other law of the United States,
or of any State relating to any substance defined in this subchapter
as a controlled substance;
(3) Has had his State license or registration suspended,
revoked, or denied by competent State authority and is no longer
authorized by State law to engage in the manufacturing,
distribution, or dispensing of controlled substances or has had the
suspension, revocation, or denial of his registration recommended by
competent State authority;
(4) Has committed such acts as would render his registration
under section 823 of this title inconsistent with the public
interest as determined under such section; or
(5) Has been excluded (or directed to be excluded) from
participation in a program pursuant to section 1320a-7(a) of Title
42.
It is undisputed that subsection (5) of 21 U.S.C. Sec. 824(a)
provides the sole basis for the revocation of Respondent's DEA
Certificate of Registration. Pursuant to 42 U.S.C. 1320a-7(a),
Respondent has been excluded from participation in the Medicare,
Medicaid, Maternal and Child Health Services Block Grant and Block
Grants to States for Social Services programs for a five year period
until approximately, mid-April 1999. The issue remaining is whether the
Deputy Administrator, in exercising his discretion, should revoke or
suspend Respondent's DEA Certificate of Registration.
The Government contends that Respondent is unwilling to accept full
responsibility for his unlawful billing practices, that throughout the
hearing Respondent attempted to justify his actions, and that therefore
his DEA registration should be revoked. Respondent on the other hand
does not dispute being excluded from participating in Medicare and the
Illinois Medical Assistance Program, but he argues that his ``lifelong
professional conduct, and current professional responsibilities''
weight against revoking his DEA registration.
In evaluating the circumstances of this case, Judge Bittner notes
that Respondent's exclusion from participation in Medicare and the
Illinois Medical Assistance Program did not result from any misuse of
his authority to handle controlled substances. However as Judge Bittner
correctly points out, misconduct which does not involve controlled
substances may constitute grounds for the revocation of a DEA
registration pursuant to 21 U.S.C. 824(a)(5). See Stanley Dubin,
D.D.S., 61 FR 60,727 (1996); Nelson Ramirez-Gonzalez, M.D., 58 FR
52,787 (1993); George D. Osafo, M.D. 58 FR 37,508 (1993). Therefore,
the Deputy Administrator agrees with Judge Bittner that the Government
has established a prima facie case for the revocation of Respondent's
DEA Certificate of Registration.
Nonetheless, Judge Bittner recommended that Respondent's
registration not be revoked because she was ``persuaded that Respondent
has accepted responsibility for his misconduct and that is not likely
to recur.'' The Deputy Administrator agrees with Judge Bittner, finding
it significant that Respondent did not attempt to conceal his
misconduct and in fact was quite straightforward with the
investigators. The Deputy Administrator disagrees with the Government
that Respondent has not accepted responsibility for his actions.
Respondent has never denied that he over-billed for his services,
however he has attempted to explain why he did so. In addition, the
Deputy Administrator finds it significant that Respondent was honest
and forthcoming regarding his background with his current employer and
that he need to be able to handle controlled substances in order to
continue treating inmates in the local jail. Therefore, the Deputy
Administrator finds that Respondent's registration should not be
revoked.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA
Certificate of Registration AS4328274, issued to Melvin N. Seglin,
M.D., be renewed and continued. This order is effective December 21,
1998.
Dated: December 8, 1998.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 98-33708 Filed 12-18-98; 8:45 am]
BILLING CODE 4410-09-M
