Gross v. U.S. Inspector Gen.

Full title: ROBERT H. GROSS, Plaintiff, v. U.S. INSPECTOR GENERAL, et al., Defendants.

Court: United States District Court, District of Columbia

Date published: Aug 9, 2023

Facts

In October 2014, a federal grand jury in the Northern District of Texas charged Robert Gross, a licensed therapist, with 52 counts of healthcare fraud in violation of 18 U.S.C. § 1347. ECF 26-1 at 235-74. The indictment alleged that Gross used improper billing codes for more than four years to secure greater reimbursement than was appropriate. Id. at 241. For example, Gross inflated the time he spent with patients and even sought reimbursement for services rendered to deceased clients. See, e.g.id. at 242-43, 268. Gross entered into a plea agreement in which he pleaded guilty to one count of violating 18 U.S.C. § 1347Id. at 282. Gross was sentenced to a 71-month term of incarceration and ordered to pay a $100,000 fine. Id. at 276, 279. The sentencing judge also ordered Gross to pay $1,832,869.21 in restitution to compensate for the damage caused by his conduct. Id. at 279. Later, the Texas Medical Board suspended Gross’s medical license indefinitely. Id. at 294-95.

About two years later, on April 29, 2016, the Office of the Inspector General for the Department of Health and Human Services sent Gross a letter informing him that he would be excluded from all federal healthcare programs (including Medicare and Medicaid) because he had been convicted “of a criminal offense related to the delivery of an item or service under the Medicare or a State health care program.” ECF 26-1 at 20 (citing 42 U.S.C. § 1320a-7(a)). Under the Social Security Act, Gross’s period of exclusion could not be less than five years. Id.see also 42 U.S.C. 1320a-7(c)(3)(B). But the Inspector General determined that Gross should be excluded for more than five years because his offense implicated four aggravating factors: (1)  Gross’s offense caused a financial loss to a government agency of $5,000 or more;(2) Gross’s criminal acts were committed over a year or more; (3) Gross’s sentence included incarceration; and (4) Gross was the recipient of an adverse action taken by another governmental agency-the Texas Medical Board had suspended his license. ECF 26-1 at 21. It excluded him for a minimum period of 28 years. Id. at 20.

Gross appealed the decision. Id. at 19. On February 10, 2017, an Administrative Law Judge (ALJ) upheld the Inspector General’s decision, citing the presence of the four aggravating factors and the lack of any mitigating factors. Id. at 1-9. Gross appealed the ALJ’s decision, but a three-judge panel in the Appellate Division of the Department of Health and Human Services’ Departmental Appeals Board affirmed it. Id. at 10-18.

Gross then sued the Inspector General, Attorney General, and an unnamed United States Attorney in this Court. ECF 4. His Amended Complaint includes three claims. First, Gross alleges that the decisions by the ALJ and the Departmental Appeals Board were arbitrary and capricious in violation of the Administrative Procedure Act. Id. at 2-3. Second, Gross alleges that the Defendants violated the Sixth Amendment by “refus[ing] to allow Plaintiff’s constitutional right to counsel” before he entered into his plea agreement. Id. at 1. Finally, Gross’s Amended Complaint alleges that Defendants violated the Fifth and Fourteenth Amendments by using false evidence, applying the wrong sentencing guidelines, and illegally seizing retirement funds. ECF 4 at 2.

While these allegations do not make clear the full basis for his legal argument related to the length of his exclusion, Gross’s Response to Defendants’ Motion for Summary Judgment offers some clarity. There, he argued that the 28-year exclusion period violated the Equal Protection Clause, and supported his argument by identifying doctors who had received shorter periods of exclusion. ECF 14 at 11-16. Reading Gross’s pleadings together, the Court construes his claim to be an Equal Protection violation alleging that he received dissimilar treatment than other convicted doctors, in addition to his APA claim.

Defendants moved for summary judgment on Gross’s claims related to the length of his period of exclusion and moved to dismiss his remaining claims under Rule 12(b)(3) for improper venue. ECF 10. Gross responded, ECF 13, and Defendants replied ECF 20.

Issue

Decision

The Court grants the Defendants’ Motion for Summary Judgment as to Gross’s APA and Equal Protection Claims, as well as their Motion to Dismiss his constitutional claims purporting to challenge his conviction and sentence for improper venue.

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