SUBJECT:

John Y. Salinas, M.D,

Petitioner,

The Inspector General

DECISION

By letter dated April 30, 2003, the Inspector General (I.G.), United States Department of Health and Human Services, notified John Y. Salinas, M.D. (Petitioner), that he would be excluded from participation in the Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), for a period of five years. The I.G. informed Petitioner that his exclusion was imposed, pursuant to section 1128(a)(1) of the Act, due to his conviction (as defined in section 1128(i) of the Act) in the Superior Court of Dekalb County, State of Georgia, of a criminal offense related to the delivery of an item or service under the Medicaid program. As explained below, I grant the I.G.'s motion for summary affirmance and sustain the I.G.'s determination to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs for a period of five years.

BACKGROUND

Petitioner submitted a timely request for hearing dated May 27, 2003. I conducted a telephone prehearing conference on August 12, 2003. The I.G. indicated during the conference that the I.G. planned to file a motion for summary affirmance. Thereafter, on September 18, 2003, the I.G. submitted the I.G.'s initial brief (I.G. Br.) and three proposed exhibits (I.G. Exs. 1 - 3). On October 28, 2003, Petitioner filed his responsive brief (P. Br.), which Petitioner stated was accompanied by the affidavit of John Salinas. The affidavit, however, was not included with Petitioner's brief. Petitioner provided a copy of the affidavit to me by facsimile on November 21, 2003. I am marking the affidavit as Petitioner's exhibit (P. Ex.) 1. On October 31, 2003, the I.G. requested leave to file a reply brief and attached the brief (I.G. Reply Br.). Petitioner filed no response to the I.G.'s reply and I have now closed the record. ⁽¹⁾ There being no objection to the proposed exhibits, I admit into evidence I.G. Exs. 1 - 3 and P. Ex. 1.

Based on all the evidence in the record, it is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs for a period of five years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that the mandatory exclusion provisions of section 1128(a)(1) do apply in this case because Petitioner was convicted of a program-related criminal offense.

ISSUE

The issue in this case is whether the I.G. had a basis upon which to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs. Since the period of exclusion in this case is five years, the minimum mandatory period, the issue as to whether the length of the exclusion is unreasonable is not before me.

APPLICABLE LAW AND REGULATIONS

Section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)) requires the Secretary to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.

An exclusion under section 1128(a) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B). Aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. § 1001.102(b). If aggravating factors justify an exclusion longer than five years, mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c).

Section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)) defines the term "convicted," as used in section 1128(a), as follows:

an individual or entity is considered to have been "convicted" of a criminal offense-

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whetherthe judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(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.

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (Secretary) is provided by section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)). Pursuant to 42 C.F.R. § 1001.2007, a person excluded under section 1128(a)(1) of the Act may file a request for hearing before an ALJ. Here, Petitioner's request for a hearing was timely filed and I do have jurisdiction to hear the case. However, the Secretary has by regulation limited the scope of my review to two issues: (1) whether there is a basis for the imposition of the exclusion; and, (2) whether the length of the exclusion is unreasonable. 42 C.F.R. § 1001.2007(a)(1). The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. § 1001.2007(c) and (d). 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).

PARTIES' ARGUMENTS

I.G.'s Arguments

The I.G. argues that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. Therefore, Petitioner is subject to the statutory minimum mandatory period of exclusion of five years.

Petitioner's Arguments

Petitioner argues that he has never admitted his guilt. Rather, he agreed to an Alford plea in the State of Georgia and thus has not been convicted of a criminal offense for purposes of exclusion under the Act. He asserts that he accepted responsibility for an employee's act, of which he had no knowledge. He also argues that the subject of his Alford plea was not related to the delivery of an item or service under Medicare or under any state health care program. Finally, Petitioner contends that he provides OB/GYN services to 10,000 patients per year, treating a large Hispanic/Latino patient base of 30,000 patients that is already under-served and under-represented in his community; that he has been practicing for eight years without any malpractice actions or other adverse actions on his license; and that the amount of claimed error is so small that it raises an inference of mistake, accident, or error, rather than an intent to defraud.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. At all times relevant to this case, Petitioner was a licensed physician in the State of Georgia.

2. On March 25, 2002, a two-count Accusation was filed against Petitioner in the Superior Court of DeKalb County, Georgia. Count 1 charged Petitioner with felony tax evasion for "willfully attempt[ing] to evade paying State income tax in excess of $3,000 for the 1999 tax year, by failing to report case income that he had received." I.G. Ex. 3. Count 2 charged Petitioner with theft by taking, a misdemeanor for "unlawfully tak[ing] $45 from the Georgia Department of Community Health (DCH) [the Georgia State Medicaid agency], to which he was not entitled, with no intent to restore it (sic) DCH, by billing DCH for a January 4, 2000 medical service to Medicaid Recipient A.P. and concealing from DCH that Salinas had received $45 from private insurance for the same medical service . . . ." Id.

3. On May 17, 2002, Petitioner entered a guilty plea, characterized as a guilty plea such as that in North Carolina v. Alford, 400 U.S. 25 (1970) (Alford plea). I.G. Ex. 2. The presiding judge accepted Petitioner's guilty plea. Id. at 3.

4. Petitioner was sentenced to three years of probation for Count 1, and 12 months of probation for Count 2, to run concurrently. In addition, Petitioner was required to pay a fine of $11,000, a jail fee of $1,100, restitution of $80,000, and various probation fees. I.G. Ex. 2, at 1. His sentence was referred to as a "First Offender Sentence." Id.

5. On April 30, 2003, the I.G. notified Petitioner of his five-year exclusion pursuant to section 1128(a)(1) of the Act. I.G. Ex. 1.

6. Summary judgment is appropriate in this case.

7. A guilty plea described as an Alford plea constitutes a conviction under section 1128(i) of the Act.

8. Count 2 of the Accusation to which Petitioner submitted an Alford plea of guilty related to the delivery of an item or service under Medicare or a state health care program.

9. Section 1128(a)(1) of the Act requires the exclusion of any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Medicare or any state health care program. Section 1128(a)(1) of the Act.

10. Petitioner was properly excluded for the mandatory minimum period of five years.

ANALYSIS

I discuss the rationale behind my Findings, in detail, below.

1. Summary Judgment is appropriate in this case.

Petitioner posits that "[c]ontrary to the Inspector General's assertions, this case involves genuine issues of material facts that cannot be resolved based on the Inspector General's Motion for Summary Affirmance." P. Br. at 3. He requested that a hearing be scheduled for the taking of testimony. The facts which Petitioner wishes to present are as follows:

•The targeted offense was a single, inadvertent $45.00 overcharge of a Medicaid patient, who later presented private insurance. Petitioner was without knowledge, either actual or constructive, that payment had been received from private insurance for the same medical service.

•Petitioner serves over 10,000 patients per year. His billing was done by a certified coder and biller, with a good reputation and sound job history. Petitioner believes the billing error was an unintentional mistake committed by the biller or by another member of his staff.

•Petitioner had no knowledge of the billing error at the time it occurred and only learned of it 30 days before his plea hearing court date.

•Petitioner entered an Alford plea because the error occurred from his office, for which he has ultimate responsibility, although he had no personal knowledge of the incident.

•Petitioner made voluntary restitution and paid a fine in excess of $100,000 for the billing error.

For purposes of this decision, I will accept the facts alleged by the Petitioner and summarized above as true. Summary judgment is appropriate when, viewing the evidence and the inferences arising therefrom in the light most favorable to the non-moving party, there exists no genuine issue of material fact, and judgment can be entered as a matter of law. Fed. R. Civ. P. 56(c). The truth or falsity of Petitioner's assertions has no bearing on the outcome of this decision. I am not required to convene a full evidentiary hearing in order to consider all the issues an excluded individual may have raised under 42 C.F.R. § 1001.2007(a)(1), as long as the material facts are clear from the parties' pleadings. Maria Thachenkery, M.D., DAB CR731 (2001).

2. Petitioner's conviction of a criminal offense related to the delivery of an item or service under the Georgia Medicaid program justified his exclusion by the I.G. from participation in Medicare, Medicaid, and all federal health care programs.

A. Petitioner was convicted of a criminal offense within the meaning of section 1128 of the Act.

On May 17, 2002, Petitioner entered a plea clearly described as an Alford plea to the misdemeanor offense of theft by taking in violation of O.G.C.A. § 16-8-2 for unlawfully taking $45 from DCH to which he was not entitled, with no intent to restore it to DCH, which he accomplished by billing for a medical service to DCH and concealing from DCH that he had received $45 from private insurance for the same medical service. I.G. Ex. 3. Under an Alford plea, a defendant does not admit guilt but concedes that a state has sufficient evidence for conviction. See North Carolina v. Alford, 400 U.S. 25, 35-38 (1970). Prior Departmental Appeals Board (DAB) ALJ decisions have unequivocally held that an Alford plea to a criminal charge satisfies the requirement that a petitioner has been convicted within the meaning of section 1128(i) of the Act. Ethel Ann Arita, DAB CR1052 (2003); Fee Ong, R.Ph., DAB CR573 (1999); Daniel J. Vossman, R.Ph., DAB CR570 (1999); Russell E. Baisley, DAB CR128 (1991); Raymond R. Veloso, M.D., DAB CR124 (1991); Magdi Z. Fahmy, M.D., DAB CR176 (1992). Section 1128(i)(3) of the Act specifically defines conviction as "when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court." An Alford plea is deemed to be a guilty plea and the judge who accepted Petitioner's plea accepted it as a guilty plea. I.G. Ex. 2, at 3. Thus, Petitioner's entry of an Alford plea equates to a guilty plea and its acceptance by the Dekalb County Superior Court constitutes a conviction under section 1128(i)(3) of the Act.

B. Petitioner's offense was a criminal offense related to the delivery of an item or service under the Medicaid program.

Section 1128(a)(1) of the Act requires the Secretary to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), "[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under [Medicare] or under any State health care program." DCH, Georgia's Medicaid agency, is a state health care program within the meaning of the Act.

I must first determine if Petitioner's offense is "related" to the delivery of an item or service under the Georgia Medicaid program. The language in Tanya A. Chuoke, R.N., DAB CR633 (1999) states:

[t]o determine if an offense is program-related, the ALJ must analyze the facts and circumstances underlying the conviction to determine whether a nexus or common sense connection links the offense for which the petitioner has been convicted with the delivery of an item or service under a covered program. Berton Siegel, D.O., DAB No. 1467 (1994); Krishna Kumar Batra, M.D., DAB CR537 (1998). Petitioner need not be convicted of Medicaid fraud to be subject to exclusion under section 1128(a)(1) of the Act, instead it is sufficient if the delivery of a Medicaid item or service is an element in the chain of events giving rise to the offense.

Chuoke, DAB CR633, at 4.

It is well settled that an ALJ must examine the entire record, reviewing all facts and circumstances that illuminate the chain of events giving rise to the offense, and then determine whether a common-sense connection exists 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; Salvacion Lee, M.D., DAB CR920 (2002).

Petitioner's conviction of theft by taking involved billing DCH for a medical service that was also paid for by private insurance, with no intent to restore the payment to DCH. I.G. Ex. 3. In Petitioner's case, a necessary nexus links the facts underlying his crime with the delivery of items or services under Medicaid because the claim leading to Petitioner's conviction resulted in his receipt of a Medicaid reimbursement overpayment which he had no intent to restore. Id.; see Rosaly Saba Khalil, M.D., DAB CR353 (1995) (in which a nexus was found to exist despite the fact that the petitioner may not have personally made the reimbursement claim to Medicaid). In the present case, the nexus between Petitioner's offense and the delivery of items or services under a covered program is firmly established by his conviction for billing DCH for a payment he was not entitled to receive. Mark Zweig, M.D., DAB CR563 (1999).

C. Petitioner may not use this forum to collaterally attack his conviction for theft by taking.

For this decision, I have assumed as true Petitioner's allegations that: the targeted offense was for a single, inadvertent overcharge of a Medicaid patient, who later presented private insurance; Petitioner was without knowledge that payment had been received from private insurance for the billed amount; and Petitioner had no knowledge of the billing error at the time it occurred and was subsequently made aware of the billing error only 30 days before his plea hearing court date.

Since Petitioner claims he has never admitted to the underlying facts alleged against him, Petitioner now argues that an evidentiary hearing should be held before me so that he may confront witnesses and present evidence of his own. However, because of the Act and implementing regulations, which I must follow, Petitioner's assertions (which I have accepted as true) are unavailing to him in this case. Nor would an in-person hearing help him. His conviction stands on its own. Under the regulations, I am not permitted to review the underlying determination that is the basis of the exclusion. 42 C.F.R. § 1001.2007(d). An individual may not collaterally attack the conviction that is the basis for his or her exclusion. Id. In numerous decisions, the DAB has held such arguments to be ineffectual in the context of an exclusion appeal, as the I.G. and the ALJ are not permitted to look behind the fact of conviction. Mark Zweig, M.D., DAB CR563; Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter J. Edmondson, DAB No. 1330 (1992).

D. Petitioners' exclusion for a period of five years is the mandatory minimum period as a matter of law.

Petitioner contends that an adverse action on his license will severely affect his greater than 30,000 Hispanic/Latino patient base, which is already under-served and under-represented, and depends on him as one of the few Hispanic OB/GYN physicians in the Atlanta metropolitan area. His contention, which I have accepted as true, has no bearing on this case, because the I.G. has imposed the minimum mandatory exclusion and asserted no aggravating factors. Thus, I cannot consider mitigating factors in this case. 42 C.F.R. § 1001.102(c). Even if I could consider mitigating factors here, however, a physician's importance to the community he or she serves is not a mitigating factor I can consider under the regulations. Id. Moreover, even though an excluded individual can ask a state to request a waiver of the individual's exclusion from the I.G. (and the I.G. will consider a state's waiver request if the excluded individual is a sole community physician or the sole source of essential specialized services in a community), the I.G.'s disposition of a waiver request cannot be reviewed by an ALJ. 42 C.F.R. § 1001.1801. Thus, I could not review such a request even if one had been made in this case.

CONCLUSION

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all federal health care programs for a period of at least five years because of his conviction of a criminal offense related to the delivery of an item or service under a federal or state health care program. The five-year exclusion is therefore sustained.

Anne E. Blair

Administrative Law Judge

1. In his responsive brief, Petitioner requested an in-person hearing. As I explain in the Analysis Section, at 1, below, I find an in-person hearing is not required in this case.