SUBJECT:

Roger L. Wadley

Petitioner,

The Inspector General

DECISION

Roger L. Wadley (Petitioner) appealed the determination of the Inspector General (I.G.) to exclude him from participation in Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), pursuant to section 1128(a)(1) of the Act for a period of 15 years. As explained below, I uphold the I.G.'s determination.

I. Procedural Background

On May 31, 2003, the I.G. notified Petitioner that he was being excluded from Medicare, Medicaid and all federal health care programs for a period of fifteen 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 and Medicaid programs. Petitioner requested a hearing and the case was assigned to me for hearing and a decision.

In a prehearing conference call conducted on October 24, 2002, both parties agreed that this case could be resolved on the basis of documentary evidence and that witness testimony was not necessary. Thereafter, the I.G. then filed a motion for summary affirmance and submitted a brief (I.G. Br.) and eight proposed exhibits (I.G. Exs. 1 - 8) in support of her motion. Petitioner submitted a response brief (P. Response Br.) but no exhibits. The I.G. submitted a reply brief (I.G. Reply Br.) with two exhibits (I.G. Exs. 9, 10). Because the exhibits submitted with the I.G.'s Reply Brief contained additional relevant evidence, I gave Petitioner an opportunity to file a sur-reply and his own additional evidence. Petitioner filed a brief (P. Sur-reply Br.) but no additional evidence. Petitioner did not object to my receiving into evidence any of the I.G.'s proposed exhibits. I received I.G. Exhibits 1 - 10 into evidence.

On March 10, 2003, I granted the I.G.'s motion for summary affirmance as to her authority under section 1128(a)(1) to exclude Petitioner for the statutory minimum period of five years. However, I denied the I.G.'s motion as to the question of the duration of the exclusion. While I determined that there was no genuine issue of material fact as to the presence of the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(1) (the acts resulting in the conviction, or similar acts, caused a financial loss to a government program or to one or more entities of $5,000 or more), I also determined there was a genuine issue as to the presence of the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(2) (the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more). Since the I.G. had relied on both factors in establishing the exclusion period of 15 years, I did not grant summary judgment as to the duration of the conduct or the reasonableness of the exclusion.

On April 4, 2003, I held a conference call with the parties and set a further briefing schedule. In the call, the parties again indicated the case could be decided on written submissions and they would request an in-person hearing in the briefs if they determined an in-person hearing was needed.

On May 2, 2003, the I.G. filed a brief titled "Inspector General's Second Brief in Support of Motion for Summary Affirmance" (I.G. Second Br.) and I.G. Exs. 11, 12, and 13. Petitioner did not file a response to the I.G.'s brief or objections to the admission of these exhibits. I receive I.G. Exs. 11 - 13 into evidence. After confirming Petitioner's intention not to file a response, I closed the record on June 11, 2003.

From its brief entitled "Second Brief in Support of Motion for Summary Affirmance," I presume that the I.G. is continuing to request that this case be disposed of pursuant to the principles applicable to summary judgment. When issuing the April 7, 2003 order summarizing the April 4, 2003 conference call, I assumed the parties were requesting disposition of the case on the written record and did not expect the I.G. to continue to request summary judgment. Since the I.G. did request summary judgment, I will dispose of the case on the basis of the standards for summary judgment since to do otherwise could be regarded as prejudicial to Petitioner.

II. Applicable Law

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. § 1230a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction. However, the Secretary of Health and Human Services (Secretary) has by regulation limited my scope of review to two issues: (1) whether there is a basis for the imposition of the sanction, and, (2) whether the length of the exclusion is unreasonable. 42 C.F.R.§ 1001.2007(a)(1). 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).

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual convicted of an offense related to the delivery of an item or service under the Medicare and Medicaid programs.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(1) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. § 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c).

Motions for summary affirmance are treated as requests for summary judgment and evaluated pursuant to the standards set forth in Rule 56(c) of the Federal Rules of Civil Procedure and the cases construing that rule. Summary judgment is appropriate if the record establishes that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party, in this case the I.G., "bears the burden of satisfying Rule 56(c) standards." Martin v. Kelley, 803 F.2d 236, 239, n.4 (6th Cir. 1986). This burden is to show "clearly and convincingly" the absence of any genuine issues of material fact. Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir. 1991). "[I]n ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponents are indulgently treated." Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962).

III. Issues

The scope of my review in a section 1128(a)(1) exclusion 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 unreasonable.

In the partial summary judgment order, I determined that the I.G. had the authority to exclude Petitioner for a minimum period of five years from all federal health care programs under section 1128(a)(1). I have also determined that the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(1) (the acts resulting in the conviction caused a financial loss to a government program of $5,000) is present. Therefore, remaining at issue is whether the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(2) exists and whether a 15-year exclusion is unreasonable.

IV. Findings of Facts and Conclusions of Law

I make the following findings of fact and conclusions of law (FFCLs). Some of these FFCLs were adopted in the partial summary judgment order. I repeat them here so that the decision will present all of the facts and findings supporting Petitioner's exclusion.

1. Petitioner was employed by Area Life Care EMS (ALC EMS), an ambulance service provider in Oklahoma. I.G. Ex. 1, at 1; I.G. Ex. 2, at 7.

2. On May 7, 2001, the Attorney General for the State of Oklahoma filed an Information against Petitioner in the District Court of Oklahoma County, State of Oklahoma charging him with seven counts of criminal acts involving the Medicare and Medicaid programs. I.G. Ex. 3.

3. Count 1 of the Information charged Petitioner with felony Medicaid fraud; Count 2 charged Petitioner with misdemeanor Medicaid fraud; and Count 7 charged Petitioner with conspiring to obtain money from Medicare and Medicaid by false pretense. Id.

4. On September 21, 2001, Petitioner submitted to the court a document titled "Plea of Guilty and Summary of Facts" in which he stated that he committed the acts charged in Counts 1, 2 and 7 of the Information. In the section titled "state the factual basis for your plea," Petitioner wrote that "from Sept 98 thru May 99, I knowingly made False Claims to Medicaid and Medicare acting jointly with Tom Harris. These claims were an aggregate amt more than 2500.00 and sometimes less than 2500.00." I.G. Ex. 5, at 4.

5. On September 21, 2001, a judge for the District Court of Oklahoma County entered an order titled "Order Deferring Imposition of Judgment and Sentence of Plea of Guilty" finding Petitioner guilty of the offenses described in Counts 1, 2 and 7. I.G. Ex. 6, at 1. The judge ordered Petitioner to pay restitution of $94,404.73. Id. at 2.

6. By letter dated May 31, 2002, the I.G. notified Petitioner that he was excluded for a period of 15 years from Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Act.

7. Petitioner was convicted, within the meaning of the Act, of a criminal offense related to the delivery of an item or service under Medicare and Medicaid. Act, section 1128(a)(1); 42 U.S.C. § 1320a-7(a)(1).

8. Due to this conviction, section 1128(c)(3)(B) requires that Petitioner be excluded from participation in any federal health care program for a minimum period of five years.

9. The I.G. may increase the term of exclusion based on a finding of the presence of an aggravating factor specified at 42 C.F.R. § 1001.102(b).

10. Petitioner's conviction caused a financial loss to a government program or to one or more entities of $5,000 or more. 42 C.F.R. § 1001.102(b)(1).

11. Acts similar to the acts which resulted in Petitioner's conviction were committed over a period of one year or more. 42 C.F.R. § 1001.102(b)(2).

12. There are no mitigating factors, as defined in 42 C.F.R. § 1001.102(c), present in this case.

13. Extending Petitioner's period of exclusion by 10 years, for a total of 15 years, is not unreasonable given the presence of two aggravating factors and no mitigating factor.

V. Analysis

Below, in sections 1 and 2, I repeat the analysis set forth in my partial summary judgment order of March 10, 2003. In sections 3 and 4, I address the questions of whether the acts resulting in the conviction, or similar acts, were committed over a period of one year or more and whether the duration of the exclusion is unreasonable.

1. Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(1) of the Act and, therefore, the I.G. has the authority to exclude Petitioner from Medicare, Medicaid, and all federal health care programs for a minimum period of five years.

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 Departmental Appeals 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). In pleading guilty to Medicaid fraud and conspiring to obtain money from Medicare and Medicaid by false pretense, Petitioner stipulated that he "knowingly made False Claims to Medicaid and Medicare." I.G. Ex. 5, at 4. Petitioner does not dispute that this was a program-related offense as described in section 1128(a)(1).

Petitioner argues that he was not "convicted" of these crimes because "he entered a plea of guilty and sentencing was deferred. Under Oklahoma law, a deferred sentence is not a conviction." P. Response Br. at 2. Petitioner cites OKLA. STAT. tit. 22, ch. 16, § 991c and Nguyen v. State, 772 P.2d 401 (Okla. Crim. App. 1989).

Section 991c is a deferred judgment statute which provides that upon a plea of guilty, the court may, without entering a judgment of guilt, defer further proceedings upon specific conditions prescribed by the court not to exceed a five-year period. The statute provides further that upon completion of the conditions of the deferred judgment, and upon a finding by the court that the conditions have been met, a defendant shall be discharged without a court judgment of guilt, and the court shall order the plea of guilty to be expunged from the record and the charge dismissed with prejudice to any further action. Finally, the statute provides that if a defendant fails to abide by the conditions of the deferred judgment, the court may enter a judgment of guilt.

I reject Petitioner's argument for the following reasons.

The I.G.'s authority to exclude individuals from participation in federal health care programs is based on federal law, not state law, and whether the Petitioner was convicted of an offense is determined by federal law. Travers v. Shalala, 20 F.3d 993, 996 (9^th Cir. 1994), see also, Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 110 (1983) (the definition of "conviction" under the federal Gun Control Act is an issue of federal law except when Congress indicated otherwise.) Therefore, state statutes or case law do not modify the federal definition of conviction set forth at section 1128(i). ⁽¹⁾

Section 1128(i) defines conviction for purposes of section 1128(a)(1). The I.G. argues that the disposition of Petitioner's criminal case meets subsections (3) and (4) of this definition. Section 1128(i) provides in relevant part:

For purposes of subsections (a) and (b) of this section, an individual or entity is considered to have been "convicted" of a criminal offense--

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

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Section 991c and its relation to section 1128(i) were considered in the case of Lila V. Nevrekar, M.D., DAB No. CR319 (1994). The ALJ in that case determined that pleas of guilty under OKLA. STAT. tit. 22, ch. 16, § 991c were convictions under section 1128(i)(3) and (4). I will limit my discussion in this case to the applicability of section 1128(i)(4).

Under section 1128(i)(4), a person has been convicted for purposes of section 1128(a) if he has "entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld." This is exactly what Petitioner did. He pled guilty under section 991c which is titled "deferred sentence" and the court entered an "Order Deferring Imposition of Judgment and Sentence of Plea of Guilty." I.G. Ex. 6. In other words, Petitioner participated in a deferred adjudication program.

In Travers v. Shalala, 20 F.3d 993, 996 - 999 (9^th Cir. 1994), the court explained that such deferred adjudication statutes were precisely the type of statute encompassed by the plain language of section 1128(i)(4). In Travers, the court distinguished between deferred adjudication procedures and deferred prosecution procedures. In deferred prosecution, an agreement is entered into deferring prosecution and the initiation of charges is withheld. If the defendant fails to abide by the terms of his agreement with the prosecutor, he may enter a plea of not guilty and proceed to trial. In deferred adjudication, if a defendant fails to abide by the terms of the agreement, the court may enter a judgment of conviction based on the defendant's guilty plea. Here, section 991cE provides that "upon violation of any condition of the deferred judgment, the court may enter a judgment of guilt . . . ." Clearly, this was a deferred adjudication procedure which falls within the plain meaning of section 1128(i)(4).

This conclusion is consistent not only with the plain meaning of section 1128(i)(4), but also with congressional intent, as expressed in legislative history. The congressional committee charged with drafting the 1986 amendments to the statute stated:

The principal criminal dispositions to which the exclusion remedy [currently] does not apply are the "first offender" or "deferred adjudication" dispositions.. It is the Committee's understanding that States are increasingly opting to dispose of criminal cases through such programs, where judgment of conviction is withheld. The Committee is informed that State first offender or deferred adjudication programs typically consist of a procedure whereby an individual pleads guilty or nolo contendere to criminal charges, but the court withholds the actual entry of a judgment of conviction against them and instead imposes certain conditions of probation, such as community service or a given number of months of good behavior. If the individual successfully complies with these terms, the case is dismissed entirely without a judgment of conviction ever being entered.

These criminal dispositions may well represent rational criminal justice policy. The Committee is concerned, however, that individuals who have entered guilty or nolo [contendere] pleas to criminal charges of defrauding the Medicaid program are not subject to exclusion from either Medicare or Medicaid. These individuals have admitted that they engaged in criminal abuse against a Federal health program and, in the view of the Committee, they should be subject to exclusion. If the financial integrity of Medicare and Medicaid is to be protected, the programs must have the prerogative not to do business with those who have pleaded to charges of criminal abuse against them.

With respect to convictions that are "expunged," the Committee intends to include all instances of conviction which are removed from the criminal record of an individual for any reasons other than the vacating of the conviction itself, e.g., a conviction which is vacated on appeal.

H.R. Rep. No. 727, 99th Cong., 2d Sess. 75 (1986), reprinted in 1986 U.S.C.C.A.N. 3607, 3665.

Thus Congress clearly intended to exclude from federal health care programs individuals, such as Petitioner, who entered first offender or deferred adjudication programs.

Petitioner also argued that "[s]ince Defendant has not been sentenced, he cannot be found to have been convicted of a crime. It is Petitioner's position that any federal regulation to the contrary violates his rights of due process under the United States Constitution and the Oklahoma Constitution." P. Sur-reply Br. at 1 - 2.

In exclusion cases, administrative law judges are expressly 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). However, if I had such authority, I would reject Petitioner's argument for the following reasons. First, Petitioner does not explain how the statute's defining participation in a deferred adjudication program as a conviction violates his due process rights. Second, as explained above in the legislative history, Congress purposefully sought to reach situations in which people admitted to engaging in criminal abuse against a federal health program even if it was in the context of a first offender or deferred adjudication program. Such individuals pose a risk to the integrity of health care programs and it was plainly reasonable for Congress to adopt a definition of conviction which would include such first offenders. Third, the exclusion authority of the I.G. has been repeatedly upheld against a variety of constitutional attacks. See, Erickson v. United States ex rel. Dep't of Health and Human Serv, 67 F.3d 858, 864, n.2 (9th Cir. 1995); Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Kahn v. Inspector General of the U.S. Dep't of Health and Human Serv, 848 F.Supp. 432, 437 (S.D.N.Y. 1994); Crawford v. Sullivan, 1993 WL 122294, *3 (N.D. Ill. 1993); Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990).

Therefore, I conclude there is no genuine issue as to any material fact as to whether Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(1) of the Act and the I.G. has the authority to exclude Petitioner from all federal health care programs for a minimum period of five years.

2. The acts resulting in the conviction caused a financial loss to a government program of $5,000 or more. 42 C.F.R. § 1001.102(b)(1).

The Order Deferring Imposition of Judgment requires Petitioner to pay $94,404.73 in "restitution." I.G. Ex. 6, at 2. Restitution means "return or restoration of some specific thing to its rightful owner" or "compensation for benefits derived from a wrong done to another." Black's Law Dictionary 1315 (7^th Ed. 1999). The Plea of Guilty Part B states that Petitioner owes $90,126.28 in restitution to the "HCFA/CMS Div. Acc." (the division which administers Medicare and Medicaid) and $4,278.45 in restitution to the Office of Oklahoma Attorney General. I.G. Ex. 9, at 5. The I.G. also submitted an affidavit from the prosecutor in Petitioner's criminal case which stated that the restitution was based on losses caused by Petitioner's submission of false claims to the Medicare and Medicaid programs. I.G. Ex. 10, ¶ 8.

In his Reply Brief, Petitioner argued that the I.G. had not met her burden of proof because the Order Deferring Imposition of Judgment (I.G. Ex. 6, at 2) showed that the restitution was being paid to the Office of the Oklahoma Attorney General. Petitioner argued that the I.G. must show that the restitution was being paid to Medicare and Medicaid. P. Sur-reply Br. at 3.

I reject this argument for the following reasons. First, the regulation does not require a showing of loss to Medicare or Medicaid. It requires a showing of loss to "a government program or to one or more entities." Second, since Petitioner was convicted for Medicaid fraud and conspiracy to obtain money by false pretense from Medicare and Medicaid, it is unreasonable to assume the restitution figure is unrelated to losses suffered by those programs. Third, with her reply, the I.G. submitted a document titled Plea of Guilty Part B which explicitly states that $90,126.28 is due in restitution to the division of the Department of Health and Human Services that administers Medicare (I.G. Ex. 9, at 5) and an affidavit from the prosecutor confirming that the restitution is related to losses suffered by Medicare and Medicaid (I. G. Ex. 10, ¶ 8). Although given an opportunity, Petitioner offered no evidence in rebuttal.

Therefore, I conclude that there is no genuine issue as to any material fact as to the presence of the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(1). The acts resulting in Petitioner's conviction caused a financial loss to a government program of $5,000 or more.

3. Acts similar to the acts resulting in Petitioner's conviction were committed over a period of one year or more. 42 C.F.R. § 1001.102(b)(2).

The IG asserted the acts resulting in the conviction, or similar acts, were committed over a period of one year or more.

Petitioner pled guilty to Counts 1, 2, and 7 of the Information. I.G. Ex. 6, at 1. Counts 1 and 2 alleged Medicaid fraud for false claims based on services rendered to Patient 1, while Count 7 concerned conspiracy to obtain money by false pretense from Medicaid and Medicare by filing false claims for reimbursement.

The claims covered by Counts 1 and 2 were false because Patient 1 did not qualify for ambulance transportation under Medicare or Medicaid. Patient 1 needed transportation to her dialysis treatments. I.G. Ex. 1, at 2. Medicare and Medicaid will pay for transportation by ambulance only if ambulance transportation is medically necessary. 42 C.F.R. § 410.40(d). For non-emergency ambulance transport, medical necessity is defined as services for a person who is unable to (1) get up from bed without assistance, (2) ambulate, or (3) sit in a chair or wheelchair. Id. Patient 1 could walk (I.G. Ex. 1, at 2) and therefore was not eligible for non-emergency transport by ambulance.

After my partial summary judgment order of March 10, 2003, the I.G. submitted the following evidence to support her assertion that the acts resulting in the conviction, or similar acts, were committed over a period of one year or more.

•Susan C. Stallings, Assistant Attorney General, State of Oklahoma, submitted an affidavit dated May 1, 2003. I.G. Ex. 11. She stated that, as a member of the Oklahoma Medicaid Fraud Control Unit, she had prosecuted Petitioner for false claims for ambulance services that were not reimbursable under Medicaid and Medicare. She asserted that the fraudulent conduct to which Petitioner pled guilty occurred from March 2, 1998 to May 3, 1999. She stated that the assertions in the Information that the conduct occurred between January 1998 and September 2000 overstated the actual period of fraudulent conduct and resulted from a clerical error. She asserted that the fraudulent conduct to which Petitioner pled guilty included false claims submitted on behalf of ALC EMS for ambulance services provided to Patient 2 from March 2, 1998 to May 3, 1999.

•Allen Joe Collins submitted an affidavit dated April 28, 2003. I.G. Ex. 12. In the affidavit, he stated he was an investigator with the Oklahoma Medicaid Fraud Control Unit and had investigated Petitioner's submission of false claims to the Oklahoma Medicaid program and to Medicare. He stated that the underlying conduct for the three counts to which Petitioner pled guilty included submission of false claims for Medicare reimbursement for ambulance services provided to Patient 2 from March 2, 1998 to May 3, 1999.

•Mr. Collins stated that in order to be eligible for the ambulance services billed to Medicare for Patient 2, Patient 2 must have been bedfast, i.e., generally not ambulatory; that during the investigation he conducted surveillance on the dialysis center to which Patient 2 was transported by ALC EMS; that he observed that Patient 2 was not bedfast; and that he also interviewed Patient 2 at his residence and determined that Patient 2 was not bedfast.

•The I.G. submitted, as I.G. Ex. 13, two hundred pages of "Medicare Summary Notice[s]" which she represented showed that Medicare had been billed for ambulance transportation services provided by ALC EMS to Patient 2 from March 2, 1998 to May 3, 1999. The notices reflect multiple billings for ambulance services each month, beginning March 1998 and concluding May 1999.

Petitioner did not submit any arguments or evidence related to the affiants' statements or the summary notices of ALC EMS's Medicare claims for services rendered to Patient 2 between March 1998 and May 1999.

For the following reasons, I conclude that the I.G. has shown that there is no genuine issue as to any material fact as to whether acts similar to the acts that resulted in the conviction were committed over a period of one year or more.

•Petitioner, through his employment with ALC EMS, was convicted of falsely billing Medicaid for non-emergency ambulance transportation of Patient 1 who was not bedfast (Counts 1 and 2) and conspiring to obtain money from Medicare and Medicaid by false pretense by submitting false billing claims to Medicare and Medicaid. I.G. Exs. 3, 6.

•The "Medicare Summary Notice[s]" show that ALC EMS also billed Medicare for non-emergency ambulance transportation services provided to Patient 2 from March 2, 1998 to May 3, 1999. I.G. Ex. 13.

•The affidavit of Allen Joe Collins establishes that Patient 2 was not bedfast and therefore not eligible under Medicare for non-emergency ambulance services.

•Petitioner has not submitted any evidence or even factual assertions that would contravene the I.G.'s assertions that Petitioner participated in the false billing for Patient 2 as reflected in I.G. Ex. 13. In the face of the I.G.'s evidence that he engaged in false billing, Petitioner may not simply rely on the denials in his pleadings or briefs, but must furnish evidence of a dispute concerning whether he engaged in such similar acts. Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

Therefore, I conclude that between March 2, 1998 and May 3, 1999, Petitioner submitted false claims to Medicare for ambulance services for Patient 2. This conduct is similar to the conduct which resulted in his conviction and was committed over a period of more than one year.

Having found that conduct similar to the conduct resulting in Petitioner's conviction was committed over one year or more, I do not need to reach the question of whether the I.G. has shown there is no genuine issue as to any material fact as to whether the conduct resulting in Petitioner's conviction was committed over a period of one year or more. I am aware that the Board in Thomas D. Harris, DAB No. 1881 (2003) addressed this question in a related case. Harris involved the owner of ALC EMS who was charged as a co-defendant with Petitioner in the Information and who entered a guilty plea with terms similar to those in Petitioner's plea. In Harris, the Board found that the combination of the facts alleged in the Information (which charged the defendants in Count 1 with criminal acts spanning from January 1998 to January 2000) and the terms of the guilty plea established that the acts resulting in the conviction were committed over a period greater than one year.

As the moving party for summary judgment, the I.G. must show "clearly and convincingly" the absence of any genuine issues of material fact. Sims v. Memphis Processors, Inc., 926 F.2d 526. Further, I must construe the evidence in its most favorable light in favor of Petitioner and against the I.G. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 427.

I find that the Information and the related plea of guilty do not clearly and convincingly show that the acts resulting in the conviction occurred over a period of a year or more. An Information is a statement of what the government intends to prove. Where petitioners have pled guilty to the allegations in an Information, we have relied on those allegations to determine the duration of the acts. Norman C. Barber, D.D.S., DAB No. CR123 (1991). However, in this case the Plea of Guilty and Summary of Facts contained a typed section which instructed the defendant to "STATE THE FACTUAL BASIS FOR YOUR PLEA(S)." While on the preceding line, Petitioner had circled "yes" to the question "DID YOU COMMIT THE ACTS CHARGED IN THE INFORMATION," the space for stating the factual basis for the plea contained a handwritten statement stating that "From Sept 98 through May 99 I knowingly made False Claims to Medicaid and Medicare acting jointly with Tom Harris. These claims were an aggregate amt more than 2500 and sometimes less than 2500." I.G. Ex. 5, at 4. Therefore, while it would be otherwise reasonable to conclude that, by answering "yes," Petitioner had admitted committing the acts as charged in the Information, the handwritten statement indicates that he was pleading guilty to those acts as committed during the shorter time period.

While the I.G. disparages the handwritten portion of the plea as "self-serving" (I.G Second Br. at 6) and presumably without significance, for the following reasons, I conclude that the handwritten portion should be regarded as an integral and significant part of the plea agreement.

•The Plea of Guilty and Summary of Facts which sets forth Petitioner's plea is a mandatory form for entry of a felony plea in Oklahoma. OKLA. STAT. tit. 22, ch. 18, App., Rule 4.1 (Okla. Crim. App.). A review of this form shows that it is designed to facilitate the entry of informed and accurate guilty pleas.

•The form has a specific space for a handwritten or particularized statement of the "factual basis for your plea." It is reasonable to assume that the purpose for this space is to memorialize the acts, and the duration of those acts, underlying the plea so that the defendant is aware of the scope of his plea. This inference is supported by the fact that the other place on this form which allows for handwritten or particularized information also asks for critical information, i.e., "WHAT IS THE UNDERSTANDING FOR THE PLEA AGREEMENT?" Therefore, statements of the defendant's factual basis for the plea and understanding for the plea agreement are two things that the State has identified as important to ensuring that the plea reflects specific and accurate information as to the terms to which a defendant is agreeing.

•The plea must be signed by a prosecutor. It is reasonable to assume that a prosecutor does not agree to the inclusion of "self serving" and meaningless language in the plea agreement.

•On the last page of the plea agreement, the court is required to find that a number of requirements have been met. One of these requirements is that "a factual basis exists for the plea(s)." I.G. Ex. 5, at 6. It is reasonable to conclude that the "factual basis" referred to by this requirement is the "factual basis" completed by a defendant in response to the direction to "STATE THE FACTUAL BASIS FOR YOUR PLEA(S)." Again, this indicates that the handwritten factual basis was an integral part of the plea agreement.

Having concluded that the handwritten portion was an integral part of the plea agreement, for the following reasons I further conclude that the handwritten portion deserves significant weight in construing the plea agreement.

•A plea agreement is a contract between the defendant and the government and ambiguities in plea agreements are resolved pursuant to principles of contract law. U.S. v. Bunner, 134 F.3d 1000 (10^th Cir. 1998); United States v. Veri, 108 F.3d 1311, 1313 (10th Cir. 1997).

•A fundamental principle of contract interpretation is that "specific terms and exact terms are given greater weight than general language." Restatement (Second) of Contracts § 202(c). Here, the handwritten statement as to the shorter duration is more specific than the general answer "yes" to the question of whether he committed the acts charged in the Information.

•A further principle of contract law is that "an interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect." Restatement (Second) Contracts § 203(a). The reasonable way to give meaning to both these statements is to conclude that Petitioner was admitting to filing false claims and engaging in a conspiracy but only for the duration of September 1998 through May 1999.

Finally, this construction of the plea agreement is supported by the prosecutor's second affidavit. In that affidavit, she explained that, in fact, the Information "overstates the actual period of fraudulent conduct" and that this overstatement "resulted from oversight of a clerical error." ⁽²⁾ I.G. Ex. 11, at 1. Thus, it is not reasonable to conclude that, by circling "yes," Petitioner was pleading to a duration that even the prosecutor agrees was overstated.

For the reasons stated above, I conclude that the Information and the plea agreement do not establish that there is no genuine issue of material fact as to whether the acts resulting in Petitioner's conviction were committed over a period of a year.

4. A 15-year exclusion is not unreasonable in this case.

Section 1001.2007(a)(1)(ii) of 42 C.F.R. provides that the ALJ may determine whether the length of exclusion imposed is "unreasonable." In making such a determination, the ALJ is to conduct a "de novo" review as to the facts related to any aggravating and mitigating factors identified at 42 C.F.R. § 1001.102. Joann Fletcher Cash, DAB No. 1725 (2000), n.6, and cases cited therein. As the Board has noted, however, the preamble to the regulations governing exclusions states that "[s]o long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule." Id. at 17, quoting 57 Fed. Reg. 3298, 3321 (1992). A "reasonable range" is "a range of exclusion periods that is more limited than the full range authorized by the statute and that is tied to the circumstances of the individual case." Gary Alan Katz, R.Ph., DAB No. 1842, at 8, n.4 (2002). In determining the reasonable range, it is not the number of aggravating factors that is determinative; rather, it is the quality of the circumstances which is controlling in analyzing these factors. Keith Michael Everman, D.C., DAB No. 1880 (2003); Barry D. Garfinkel, M.D., DAB No. 1572 (1996).

Petitioner offered no arguments as to why a 15-year exclusion was unreasonable.

Illegal conduct occurring over a year or more and financial loss to a government program of $5,000 or more are factors which do not exist in every program-related conviction and factors which the I.G. has reasonably determined to be a "basis for lengthening the mandatory exclusion period." Katz, DAB No. 1842, at 7. In this case, the circumstances show that (1) the illegal conduct was not a temporary, short-lived aberration but rather an extended and lucrative pattern of conduct and (2) that the amount of money stolen from Medicare and Medicaid was enormous, as reflected by the fact that Petitioner was required to pay $94,404.73 in restitution. This amount is 18 times over the aggravating factor threshold of $5,000. Given the presence of these two aggravating factors, the quality of the relevant circumstances surrounding the two aggravating factors, and the absence of mitigating factors, I conclude that an exclusion of 15 years is not unreasonable.

VI. Conclusion

For the reasons set forth above, I uphold the I.G.'s exclusion of Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of 15 years pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the Act.

Anne E. Blair

Administrative Law Judge

1. I also note that the one state case cited by Petitioner, Nyugen v. State, was expressly overruled by Gonseth v. State, 871 P.2d 51 (Okla. Crim. App. 1994).

2. In her affidavit, the prosecutor also says that "[t]he fraudulent conduct to which Mr. Wadley pled guilty occurred, in fact, from March 2, 1998 to May 3, 1999." The prosecutor does not address or even acknowledge the existence of the handwritten portion of the plea. I do not rely on the prosecutor's conclusory representation. As explained above, while I do not doubt Petitioner's false claims spanned that period of time, I conclude that the terms of the guilty plea appear to limit the conviction to acts occurring between September 1998 and May 1999.