SUBJECT:

Nicholas C. Atkins,

Petitioner,

The Inspector General

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Nicholas C. Atkins (Petitioner) from participation in Medicare, Medicaid and all federal health care programs for a minimum period of five years. I find that a basis exists for Petitioner's exclusion pursuant to section 1128(a)(1) of the Social Security Act (Act). Further, I find that an exclusion for a minimum period of five years is mandatory under section 1128(c)(3)(B).

I. Background and undisputed material facts

A. Background

On June 28, 2002, the I.G. notified Petitioner that he was being excluded from all federal health care programs for a period of five years pursuant to section 1128(a)(1) based on the I.G.'s determination that Petitioner had been convicted of a criminal offense related to the delivery of an item or service under the Medicare program.

Petitioner requested a hearing and the case was assigned to me for hearing and a decision.

In a prehearing conference call conducted on October 16, 2002, both parties agreed that this case could be resolved on the basis of documentary evidence and that witness testimony was not necessary. I therefore set a schedule for the filing of briefs and the submission of evidence in the case. Order dated October 18, 2002. Pursuant to the scheduled deadlines, the I.G. submitted a brief and four proposed exhibits (I.G. Ex. 1 - I.G. Ex. 4). Petitioner then submitted a response brief which did not include any exhibits. The I.G. submitted a reply brief. Petitioner did not object to my receiving into evidence any of the I.G.'s proposed exhibits. Therefore, I am receiving into evidence I.G. Exhibits 1 - 4.

B. Undisputed material facts

There are no disputed material facts in this case. The basis of the I.G.'s exclusion is an October 10, 2000 judgment entered against Petitioner in the United States District Court for the Eastern District of Missouri for one count of mail fraud under 18 U.S.C. § 1341. I.G. Ex. 4. The judgment was entered pursuant to Petitioner's plea of guilty. Id. In the Stipulation of Facts Relative to Sentencing for this judgment, Petitioner stated:

The defendant fully understands that the elements of the crime which he has been charged and which he admits committing are:

One, the defendant voluntarily and intentionally participated in a scheme to defraud Medicare of money and to obtain Medicare money by means of false pretense and representations;

Two, the defendant did so with the intent to defraud,

Three, it was reasonably foreseeable that the mails would be used; and

Four, the mails were used in furtherance of some essential step in the scheme.

I.G. Ex. 3, at 9. This scheme involved the fraudulent billing of Medicare for incontinence supplies provided to residents of nursing homes. Id. at 6. Petitioner's participation in this scheme occurred between January 1995 and June 1995. Id. at 8; P. Br. at 2.

II. Issues, findings of fact and conclusions of law

A. Issues

The scope of my review under section 1128(a)(1) is limited to two issues: (1) whether the I.G. has authority to exclude Petitioner on the ground that Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(1) of the Act and, (2) whether the length of the exclusion is within a reasonable range. There are no issues of material fact in dispute in this case. The only issue in dispute is whether Petitioner was "convicted" of a criminal offence related to the delivery of a health care item or service under the Medicare program, within the meaning of section 1128(a)(1) of the Act. If he was so convicted, then his exclusion is mandatory under section 1128(a)(1) of the Act and the Act specifies that the minimum period of exclusion is five years. The I.G. did not extend the statutory minimum five-year period in this case. Thus, there is no issue related to the reasonableness of the period of mandatory exclusion.

B. Findings of fact and conclusions of law

I make the following findings of fact and conclusions of law to support my decision in this case.

1. The I.G. has the authority to impose an exclusion because Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(1) of the Act.

Section 1128(a)(1) provides:

The Secretary shall exclude the following individuals . . . from participation in any Federal health care program (as defined in section 1128B(f)):

(1) Conviction of program-related crimes. -Any individual . . . that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII [Medicare] or under any State health care program.

The Board has held that a criminal offense is program-related for purposes of an exclusion under section 1128(a)(1) if there exists a 'nexus' or 'common sense connection' between the offense and the delivery of an item or service under a covered program. Andrew Anello, DAB No. 1803 (2001); Berton Siegel, D.O., DAB No. 1467 (1994). Petitioner stipulated that he "voluntarily and intentionally participated in a scheme to defraud Medicare of money and to obtain Medicare money by means of false pretense and representations." I.G. Ex. 3, at 9. Petitioner does not dispute that he was convicted of a program-related offense as described in section 1128(a)(1).

Petitioner argues that, despite this conviction, an exclusion should not be imposed. Petitioner's arguments are based on sections 1128(a)(3) and 1128B(f) of the Act and the Ex Post Facto Clause of the United States Constitution. Below I explain why I reject these arguments.

Petitioner cites section 1128B(f) as providing -

that for "Mandatory Exclusion" for felony conviction relating to health care fraud, which is relevant to this matter, any individual or entity that has been convicted for an offense which occurred after the date of the enactment of the Health Insurance Portability and Accountability Act of 1996, under Federal or State law in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program operated by or financed in whole or in part by any Federal, State, or Local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

P. Br. at 2 - 3.

From that Petitioner argues that because the criminal acts resulting in his conviction occurred in 1995, he should not be excluded.

Petitioner's argument is based on a misunderstanding of the statutory provisions. Though he refers to section 1128B(f), Petitioner is actually citing language from section 1128(a)(3), not section 1128B(f). Exclusions pursuant to section 1128(a)(3) do require that the criminal conduct occur after the enactment of the Health Insurance Portability and Accountability Act of 1996 (August 5, 1997). However, section 1128(a)(3) applies to exclusions for felony convictions for health care fraud related to programs other than those described in section 1128(a)(1). Petitioner's crime involved a scheme to defraud Medicare, which is a program described in section 1128(a)(1). Therefore, Petitioner is being excluded pursuant to section 1128(a)(1) to which the enactment date does not apply. Thus, section 1128(a)(3) is irrelevant to this exclusion.

Petitioner also argues that this exclusion violates the Ex Post Facto Clause of the United States Constitution, Article I, Section 9. The basis for this argument is not set forth with any particularity. However, even if Petitioner were to have articulated his argument, I do not have the authority to decide the issue. It is clear that administrative law judges are limited in the types of claims that they may adjudicate. See 42 C.F.R. § 1005.4(c)(1) and (5). Administrative law judges have no statutory or regulatory authority to find invalid or refuse to follow federal statutes or regulations. Susan Malady R. N., DAB CR835 (2001), aff'd DAB No. 1816 (2002) (administrative law judges do not have authority to declare federal statutes unconstitutional).

As a result of these explicit jurisdictional prohibitions, Departmental Appeals Board Administrative Law Judges lack authority to review the constitutionality of statutes. Petitioner may not use the administrative appeals process set forth at 42 C.F.R. Part 1005 et seq. to obtain redress for both his alleged constitutional and federal statutory harms. See Serban I. Cocioba, M.D., DAB CR654 (2000) (finding no jurisdiction to rule on constitutional claims); Morton Markoff, D.O., DAB CR538 (1998) (administrative law judges lack authority to decide constitutional claims); Roberta E. Miller, DAB CR367 (1995) (delegation of authority to administrative law judges to decide exclusion cases does not include the authority to rule on the constitutionality of federal statutes or the I.G.'s actions).

2. Under section 1128(c)(3)(B), the I.G. is required to exclude Petitioner for a minimum of five years.

Section 1128(c)(3)(B) provides

. . . in the case of an exclusion under subsection [1128](a), the minimum period of exclusion shall be not less than five years . . . .

The Act clearly specifies a minimum exclusion of five years for an exclusion under section 1128(a). The I.G., the Secretary, and I have no discretion or authority to shorten the five-year minimum exclusion dictated by the Act. Thus, there is no issue of reasonableness as to the period of exclusion in this case.

III. Conclusion

For the reasons set forth above, I sustain the I.G.'s exclusion of Petitioner from participation in Medicare, Medicaid, and all other Federal health care programs for a period of five years pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the Act.

Alfonso Montano
Administrative Law Judge