[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