SUBJECT:

Tenisha Taylor, a/k/a Tenisha Carter,

Petitioner,

The Inspector General

I. Procedural History

By letter dated May 30, 2003, the I.G. notified Petitioner that she was being excluded for a period of five years from participating in Medicare, Medicaid, and other federally funded health care programs. The I.G. informed Petitioner specifically that she was being excluded pursuant to section 1128(a)(1) of the Act based on her conviction of a criminal offense related to the delivery of an item or service under the Medi-Cal program. Petitioner appealed the I.G.'s action by letter dated July 9, 2003, arguing that she was not convicted of a program-related crime.

This case was assigned to me for hearing and decision. I held a prehearing conference on August 13, 2003. During the prehearing conference, the parties agreed that the case could be decided based on written submissions. I therefore set a briefing schedule for the parties to file their written submissions. The I.G. filed her brief (I.G. Brief) with attached exhibits 1 through 6 (I.G. Exs. 1 - 6). Petitioner filed her brief in response (P. Brief) with attached exhibits 1 through 4 (P. Exs. 1 - 4). The I.G. filed a reply brief which did not include any exhibits.

The I.G. made no objection to any of Petitioner's exhibits. Thus, I am admitting P. Exs. 1 - 4. Petitioner objected to I.G. Exs. 1, 4, and 6, on the grounds that they contain hearsay and are in violation of the Federal Rules of Evidence, and that they are not relevant and are prejudicial to Petitioner. An administrative law judge (ALJ) has the authority to determine the admissibility of evidence, including the relevancy and authenticity of that evidence, and is not bound by the Federal Rules of Evidence. 45 C.F.R. § 1005.17(b). Because I am not bound by the Federal Rules of Evidence in this case and I find no prejudice to Petitioner by admitting the I.G. exhibits, Petitioner's objection is overruled. Thus, I.G. Exs. 1 - 6 are admitted.

II. Undisputed Material Facts

Petitioner was a Medi-Cal billing clerk employed by Tenet Healthcare Corporation (Tenet). I.G. Ex. 1, at 17. Petitioner worked at three Tenet Facilities: Mission Hospital, Community Hospital, and Suburban Medical Center. During the course of Petitioner's employment at these three facilities, she unlawfully obtained "face sheets" from Medi-Cal patient medical files. Id. The "face sheets" contained personal identification information. Petitioner then sold the face sheets to an individual identified as Benjamin Provo for $5 per sheet, and provided Mr. Provo with instructions regarding how to submit false or fraudulent claims to Medi-Cal. P. Brief at 8.

On July 5, 2000, the Attorney General for the State of California (Attorney General) filed a 24 count complaint (Complaint) against Petitioner and nine other co-defendants in the Superior Court of California for the County of Los Angeles. I.G. Ex. 2. In Count 19 of the Complaint, the Attorney General alleged that from approximately September 1998 through approximately March 1999, Petitioner "did willfully and unlawfully obtain personal identifying information of Medi-Cal Patients from Mission Hospital, Community Hospital, and Suburban Hospital, without authorization, and used that information for an unlawful purpose . . . in violation of California Penal Code § 530.5(a), a felony." Id. at 10.

Petitioner subsequently entered into a plea agreement with the Attorney General, in which she agreed to plead guilty to Count 19 of the Complaint. I.G. Ex. 3. On September 5, 2000, the Superior Court of California accepted Petitioner's plea of guilty to Count 19 of the Complaint. Petitioner was sentenced to 180 days in the Los Angeles County Jail. The Court suspended imposition of the sentence and Petitioner was placed on three years probation. Petitioner was also ordered to pay a $200 "restitution fine." I.G. Ex. 5.

III. 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 imposed by the I.G. is unreasonable. 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 offense related to the delivery of a health care item or service under the Medi-Cal program within the meaning of section 1128(a)(1) of the Act. If I find Petitioner to have been convicted of a criminal offense related to the delivery of an item or service under Medi-Cal, then her exclusion is mandatory under section 1128(a)(1) for a minimum period of five years. Act, section 1128(c)(3)(B). The I.G. imposed the statutory minimum five-year period of exclusion in this case. As the I.G. is required by law to impose the minimum statutory exclusion, there is no issue related to the reasonableness of the period of exclusion in this case.

I note Petitioner's argument that the exclusion statute (Act, section 1128(a)(1)) is vague and therefore unconstitutional. I do not have the authority to decide the constitutional issues raised in Petitioner's brief. 42 C.F.R. § 1004.4(c)(1). However, the constitutional issues raised by Petitioner are preserved for appeal.

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 [of Health and Human Services] 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.

Section 1128(i)(3) of the Act provides that an individual is "convicted" for purposes of section 1128(a) "when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court." Petitioner's guilty plea, and the Superior Court of California's acceptance of the guilty plea, constitutes a conviction of a criminal offense under section 1128(i)(3) of the Act. I.G. Exs. 3, 5. Accordingly, I conclude that Petitioner was "convicted" of a criminal offense within the meaning of section 1128(a)(1).

I also find that Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medi-Cal program. Petitioner's principal defense in this case is that her conviction of a criminal offense is not related to the delivery of an item or service under the Medi-Cal program. Petitioner argues that "the I.G. exclusion of Petitioner is not legally supportable because it is not supported by substantial evidence that Petitioner's conviction P.C. [§] 530.5(a) was a program-related crime or relates to delivery of an item or service." P. Brief at 10. Petitioner's argument specifically focuses on the fact that Petitioner only plead guilty to one count of identity theft. Id. According to Petitioner, the California State Legislature never included the term program-related crime when it enacted California P.C. § 530.5(a), the statute under which Petitioner was convicted. Id. Petitioner also states that none of the other counts of the Complaint that relate to the broader scheme to file false Medi-Cal claims should be taken into account when considering whether Petitioner was convicted of a program-related crime. Id. at 12, 13.

The I.G. convincingly argues that the theft of the face sheets taken alone constitutes a program-related crime. The Departmental Appeals Board (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 Siegal, D.O., DAB No. 1467 (1994). The Board has also held that offenses other than the actual delivery of an item or service "are also 'related' because they concern acts that directly and necessarily follow under the health care programs from the delivery of the item or service." Niranjana B. Parikh, DAB No. 1334 (1992).

Petitioner was employed as a Medi-Cal billing clerk whose function was to bill the Medi-Cal system for services that were rendered to Medi-Cal patients at three hospitals. Petitioner had ready access to personal identifying information regarding Medi-Cal beneficiaries because of her sensitive position of trust as a Medi-Cal billing clerk.

Petitioner's abuse of her position to steal the identifying information of Medi-Cal beneficiaries is sufficient in itself to create the nexus between the offense and the delivery of an item or service under a covered program.

The I.G. cites the case of Kim Anita Fifer, DAB CR1016 (2003), in further arguing that all that is needed is an indirect connection between the criminal act and the delivery of a health care item or services. In Fifer, a nurse aide unlawfully obtained personal information from residents at the nursing facilities where she worked. She then used the stolen personal information to secure financing for automobile purchases. She plead guilty in federal district court to one felony count of conspiracy to commit identification fraud. Fifer at 3. She argued, among other things, that her offense was not related to Medicare or Medicaid and that she should not have been excluded under section 1128(a)(3). Fifer's exclusion under section 1128(a)(3) was upheld, in part, because "her offense was connected to the delivery of a health care item or service." Id. The ALJ who decided the case reasoned that "[Fifer's] actions are no different than those of any nursing facility employee using his/her position to rob or otherwise exploit vulnerable facility residents." Id. Therefore, Fifer's theft of federal health care program beneficiaries' identities alone was considered a program-related crime. The I.G. argues that Petitioner here also used her position to exploit Medi-Cal beneficiaries and therefore her crime should be found to be program-related.

Petitioner's argument that Fifer cannot be relied upon because the Petitioner's exclusion was based on section 1128(a)(3) of the Act, whereas the Petitioner in this case was excluded under section 1128(a)(1) of the Act, must fail. It is clear that the same reasoning can be used under section 1128(a)(1) of the Act due to the similarity between sections 1128(a)(3) and 1128(a)(1).

The I.G.'s arguments in this case are sound and convincing. Based on my review of all of the evidence in this case, I conclude that Petitioner was convicted of a crime that was related to the delivery of an item or service under the Medi-Cal program. I further find that the preponderance of the evidence establishes that Petitioner was properly excluded under section 1128(a)(1) of the Act.

2. Section 1128(c)(3)(B) of the Act requires the I.G. to exclude Petitioner for a minimum period of five years.

Section 1128(c)(3)(B) of the Act 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 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.

IV. Conclusion

For the reasons set forth above, I sustain the I.G.'s exclusion of Petitioner from participation in Medicare, Medicaid, and all 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 J. Montano

Administrative Law Judge