CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Mary Jo Izzo,


Petitioner,

DATE: Janurary 29, 2004
                                          
             - v -

 

The Inspector General

 

Docket No.C-03-472
Decision No. CR1136
DECISION
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DECISION

This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Affirmance of the I.G.'s determination to exclude the Petitioner herein, Mary Jo Izzo (Petitioner), from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years. The I.G.'s motion and determination to exclude Petitioner are based on the terms of section 1128(a)(1) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(a)(1). As I shall explain below, the undisputed facts in this case require the imposition of a mandatory five-year exclusion, and my authority in the case does not extend to the amelioration of that mandatory exclusion. For these reasons, I grant the I.G.'s Motion for Summary Affirmance.

PROCEDURAL BACKGROUND

In the late 1990s and part of 2000, Petitioner was a Licensed Practical Nurse employed by a home health agency providing Medicaid services to patients in the state of New York. On October 17, 2002 Petitioner was convicted in the Town Justice Court for Pittsford, County of Monroe, State of New York on a misdemeanor charge of petit larceny, in violation of N.Y. Penal Law Section 155.25. The specific allegations of the complaint to which Petitioner pleaded guilty charged that Petitioner had submitted false time records to the home health agency in which she falsely stated that she had provided 63 hours of professional services to one of its Medicaid patients.

As she was required to do by the terms of section 1128(a)(1) of the Act, the I.G. began the process of excluding Petitioner from participation in Medicare, Medicaid, and all other federal health care programs. Section 1128(a)(1) of the Act dictates the mandatory exclusion, for a term of not less than five years, of "(a)ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII (Medicare) or a State health program." The I.G. notified Petitioner of her exclusion for the mandatory minimum period of five years by letter on March 31, 2003.

Petitioner timely sought review of the I.G.'s action by letter dated May 29, 2003. On July 28, 2003, I convened a prehearing conference with the parties by telephone to discuss the issues presented by this case and the procedures best suited for addressing them. The parties agreed that the case likely could be decided on written submissions, and I therefore established a schedule for the submission of documents and briefs. All briefing is now complete.

The I.G. has filed six proposed exhibits (I.G. Exs. 1-6), and they are admitted. Petitioner has filed two proposed exhibits (Pet. Exs. A and B); they, too, are admitted. On September 12, 2003, the I.G. also filed an Inspector General's Statement of Proposed Facts. Petitioner endorsed that statement of proposed facts in her October 27, 2003 Response, at ¶ 1. The material facts in this case are thus uncontested, and I shall discuss them in detail below. I also will discuss at modest length certain additional facts immaterial to the issues over which I enjoy jurisdiction, and which I will treat as established arguendo for the purposes of that modest discussion.

Because the I.G.'s Motion for Summary Affirmance is supported by the undisputed material facts and by well-established law, I am obliged to grant the motion, and thereby to sustain the I.G.'s determination to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a period of five years.

ISSUES

The legal issues before me in this case are those enumerated at 42 C.F.R. § 1001.2007(a)(1). In the specific context of this record they are:

1. Whether Petitioner's 2002 conviction is a basis for excluding for Petitioner from Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Act; and

2. Whether a five-year exclusion is unreasonable.

The applicable authorities compel the resolution of both issues in favor of the I.G.'s position. Section 1128(a)(1) of the Act mandates Petitioner's exclusion since her predicate conviction has been established. The five-year term of exclusion is the irreducible minimum established by section 1128(c)(3)(B) of the Act, 42 U.S.C. § 1320a-7(c)(3)(B), and is therefore ipso jure reasonable.

CONTROLLING STATUTES AND REGULATIONS

Section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), requires the exclusion from participation in Medicare, Medicaid, and all other federal health care programs of any individual or entity convicted of a criminal offense related to the delivery of an item or service under Title XVIII of the Act (the Medicare program) or under any State health care program. The terms of section 1128(a)(1) are restated in somewhat-broader language at 42 C.F.R. § 1001.101(a). Petitioner does not contest that her conviction is related to the delivery of a service under a State health program.

An exclusion based on section 1128(a)(1) is mandatory and must be imposed for a minimum term of five years. Section 1128(c)(3)(B) of the Act; 42 U.S.C. § 1320a-7(c)(3)(B). The language of 42 C.F.R. § 1001.102(a) affirms this statutory provision.

The Act defines "conviction" as including those circumstances "when a judgment of conviction has been entered against the individual . . . by a . . . local court," section 1128(i)(1) of the Act; "when there has been a finding of guilt against the individual . . . by a . . . local court," section 1128(i)(2) of the Act; or "when a plea of guilty . . . by the individual . . . has been accepted by a . . . local court," section 1128(i)(3) of the Act. See 42 U.S.C. §§ 1320a-7(i)(1)-(3). These definitions are repeated at 42 C.F.R. § 1001.2. Petitioner does not contest that her conviction falls within the statutory and regulatory definition.

The minimum mandatory exclusion is subject to enlargement in some limited and carefully defined circumstances: 42 C.F.R. § 1001.102 allows the I.G. to extend the five-year period if certain aggravating factors are demonstrated. If the I.G. proposes to seek an enlargement of the exclusionary period, then the subject of the proposed exclusion is permitted to assert the existence of certain mitigating factors and to seek thereby to limit the exclusion to the five-year mandatory minimum. Those aggravating and mitigating factors are set out in detail at 42 C.F.R. §§ 1001.102(b)1-(9) and (c)(1)-(3). In this case the I.G. has not sought to enhance the five-year mandatory minimum exclusion, and for that reason the existence vel non of any specified aggravating or mitigating factor has no material effect in the record before me.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find and conclude as follows:

1. On her plea of guilty on October 17, 2002, in the Town Justice Court for Pittsford, County of Monroe, State of New York, Petitioner was convicted of the misdemeanor offense of petit larceny, in violation of N.Y. Penal Law Section 155.25. I.G. Exs. 2, 3, and 6.

2. Final disposition and sentence were imposed on Petitioner in the Town Justice Court on December 26, 2002. I.G. Exs. 4, 5, and 6.

3. The plea, conviction, and sentence described above constitute a "conviction" within the meaning of sections 1128(a)(1) and 1128(i) of the Act, and 42 C.F.R. § 1001.2.

4. A nexus and a common-sense connection exist between the criminal offense to which Petitioner pleaded guilty and was convicted, as noted above in Finding 1, and on which plea and conviction she was sentenced, as noted in Finding 2, and the delivery of an item or service under a State health care program, i.e., Medicaid. Berton Siegel, D.O., DAB No. 1467 (1994).

5. By reason of her conviction, Petitioner was subject to, and the I.G. was required to impose, a term of exclusion from participation in Medicare, Medicaid, and all other federal health care programs of not less than five years. Sections 1128(a)(1) and 1128(c)(3)(B) of the Act.

6. The I.G. properly imposed on Petitioner a term of exclusion from participation in Medicare, Medicaid, and all other federal health care programs. Section 1128(a)(1)of the Act.

7. The I.G. properly set the term of Petitioner's exclusion at five years, the minimum mandatory term provided by law. Section 1128(c)(3)(B) of the Act; 42 C.F.R. §§ 1001.102(a) and 1001.2007(a)(2).

8. There are no disputed issues of material fact and summary disposition is therefore appropriate in this matter.

DISCUSSION

The I.G.'s exhibits (I.G. Exs. 2-6) demonstrate conclusively that Petitioner, acting with the advice and assistance of counsel, has pleaded guilty to and has been convicted of the misdemeanor offense of petit larceny, in violation of N.Y. Penal Law Section 155.25. On October 17, 2002 a complaint in the Town Justice Court for Pittsford, County of Monroe, State of New York, charged Petitioner with having committed that misdemeanor by submitting false time sheets to her employer, a home health agency that provided home health nursing services to a Medicaid recipient identified by number. The complaint alleged that over the course of 23 months Petitioner submitted claims for 63 hours of services she had not actually performed, and had been paid for them by the home health agency (I.G. Ex. 2). Petitioner appeared that day with counsel in the Town Justice Court. She admitted that the value of the falsely-reported 63 hours of nursing services was $724.50 (I.G. Ex. 3, at 4) and pleaded guilty to the charge set out in the complaint (I.G. Ex. 3, at 5-6). The guilty plea was accepted by the Town Justice (I.G. Ex. 3, at 6) and a judgment of conviction was entered on that date (I.G. Ex. 5). On December 26, 2002 Petitioner was sentenced: after having made restitution to the home health agency in the amount of $724.00 (I.G. Ex. 4), she was placed on a year's conditional discharge, fined $100.00, ordered to submit to a mental health evaluation, and required to pay a court surcharge of $125.00.

Virtually all of these facts are admitted by Petitioner (I.G. Statement of Proposed Facts; Petitioner's Response, at 1, ¶ 1). The nexus between Petitioner's misconduct and the Medicaid program is obvious and uncontested, but I note that its existence has been established to the degree required by Berton Siegel, D.O., supra. Only one element of that nexus remains unclear: the record is silent as to whether once the home health agency had recovered its $724.00, it then passed its recovery of Medicaid funds on to the Medicaid program.

It is a firmly established rule of this forum that once an individual's conviction is found to have been "related to the delivery of an item or service under title XVIII or a State health care program," and thus to lie within the terms of section 1128(a)(1), the imposition of the five-year minimum exclusion established by section 1128(c)(3)(B) of the Act is mandatory and beyond the authority of the I.G. or an Administrative Law Judge (ALJ) to reduce, modify, or suspend. The Departmental Appeals Board has used the clearest possible language to make this point: "Petitioner's exclusion was mandatory under the Act once the nexus was established between her offense and the delivery of an item or service under the Medicare program. The ALJ had no discretion to impose a lesser remedy." Salvacion Lee, M.D., DAB No. 1850, at 4 (2002). This link between conviction and exclusion is adamantine: "We therefore affirm the ALJ conclusion . . . that once an individual has been found to have been convicted of a program-related criminal offense under section 1128(a)(1) of the Act, exclusion is mandatory." Lorna Fay Gardner, DAB No. 1733, at 6 (2000); Douglas Schram, R.Ph., DAB No. 1372 (1992); Napoleon S. Maminta, M.D., DAB No. 1135 (1990). Even in situations where the underlying conviction plausibly could be argued to fall within both section 1128(a)(1) and one or more of the permissive-exclusion provisions of section 1128(b)(1)-(14), the rule in this forum is clear: the mandatory exclusion for a minimum of five years is dictated by force of statute and must be imposed. Lorna Fay Gardner, supra; Jack W. Greene, DAB No. 1078 (1989), aff'd sub nom. Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990); Douglas Schram, R.Ph., supra; Brenda J. Motley, DAB CR414 (1996).

There are two approaches in this forum to the reasonableness of the duration of the five-year term, but both reach the same practical result. The more frequently-applied approach analyzes 42 C.F.R. § 1001.2007(a)(1) and (a)(2) and concludes that the issue of reasonableness simply cannot arise when nothing more than the minimum mandatory period is imposed. The critical regulatory language begins at 42 C.F.R. § 1001.2007(a)(1), which provides that an individual or entity seeking review of an exclusion may raise only two issues: first, whether there is a basis for the sanction, 42 C.F.R. § 1001.2007(a)(1)(i); and second, whether the length of exclusion is reasonable, 42 C.F.R. § 1001.2007(a)(1)(ii). But 42 C.F.R. §1001.2007(a)(2) specifies that when the I.G. imposes the minimum five-year term, "paragraph (a)(1)(ii) of this section will not apply." This "no-issue" approach is exemplified by Rose Mary Maye, DAB CR1028 (2003); Norman Imperial, DAB CR833 (2001); Kathleen E. Talbot, M.D., DAB CR772 (2001); Dr. David Vainio, DAB CR762 (2001); and Rosemary Oteri, DAB CR755 (2001). The second approach allows the question of reasonableness to be asked and answers it empirically: "In this case, the I.G. imposed the minimum exclusion period. Therefore, as a matter of law, the five-year exclusion that the I.G. imposed against Petitioner is reasonable." John L. Grant, M.D., DAB CR737 (2001). I adopt the first approach here, not because it may be less or more lucid, satisfying, or elegant as a matter of reasoning than the second, but simply because it emphasizes the ineluctable chain of consequences present in this case. Given the inflexibility of the statute and the rigidity of the regulation, there is simply no challenge available in this forum to the reasonableness of Petitioner's five-year exclusion.

That ineluctable chain of consequences leads to the flinty heart of this matter, however, and it is there that this discussion must briefly indulge in obiter dictum. The undisputed material facts demand summary disposition in the I.G.'s favor. This decision applies settled law and accomplishes that purpose. But precisely because the material facts and settled law leave so little room for discretion or doubt about the result I must announce, a brief look at Petitioner's additional factual assertions should not be understood to derogate from that result. Those other facts are enlightening, but they are utterly immaterial to the debate before me. Thus, though I accept them arguendo as true, they in no way compromise or impeach the certitude of today's ruling, even as those facts rub uncomfortably against the purpose of the exclusion remedy. With that caveat stated, those immaterial facts point to a situation in which understanding, and perhaps sympathy, might not be misplaced.

Petitioner began her career as a nurse and caregiver almost 35 years before her crime, almost two decades of which included full-time work as an LPN in a community hospital. At the time of her offense she had also been employed part-time since 1990 by the home health agency Norrell Health Care. There came a time when the home health agency assigned Petitioner to provide home nursing services to a young girl disabled by spina bifida. What happened then is best described in Petitioner's Response at 2:

The child's mother, Diane Siemenski, befriended Ms. Izzo, often complaining of the great financial burdens she suffered with because her daughter was so profoundly disabled. After playing on Ms. Izzo's sympathies for years, Ms. Siemenski persuaded Ms. Izzo not to work on some weekends, and that Ms. Izzo pay Ms. Siemenski the wages Norrell Health Care paid her for this work. Ms. Izzo in essence agreed to turn over to Ms. Siemenski the money she was paid on the days she was scheduled to work but permitted the child's mother to work in her place. On the weekend days Ms. Izzo did not care for the child, she delivered to Diane Siemenski the money paid to her by Norrell Health Care.

Petitioner herself had this to say at her December 26, 2002 sentencing (I.G. Ex. 4, at 4):

THE DEFENDANT: Sir, I felt sorry for the woman. I don't mean to speak out of turn. I did feel sorry for her. After I had done this I felt I had been manipulated by the woman because of the way one of her victims-she used other nurses as well as myself to get money. I didn't know, I loved the child. I was caring for her daughter and had I realized what I was doing at the time, I never would have done anything like that.

Petitioner represents that she was not the only caregiver who fell under Ms. Siemenski's importunities, and that she was not the only caregiver convicted of criminal behavior as a result. Petitioner's Response at 2-3. Ms. Siemenski, on the other hand, apparently escaped prosecution entirely and retains to this day the monies she exacted from Petitioner and the other caregivers. Id. at 3. Finally, the officials who investigated and prosecuted the case appear convinced that the child for whom Petitioner cared was never neglected, endangered, or adversely affected by Petitioner, nor by the specific acts of petit larceny which she confessed. Id.

This conduct was criminal. I have no intention of suggesting that it or any other criminal conduct should pass unnoticed or go unsanctioned. But the rigor of the statutes seem ill-fitted to these facts, particularly when it is remembered that the goal of the exclusion process is remedial and not punitive. Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003); Mannochio v. Kusserow, 961 F.2d 1539, 1543 (11th Cir. 1992).

If Petitioner's version of the events surrounding her crime is accepted arguendo as true-and the I.G. has forborne to contradict that version directly-then it is difficult to imagine how this particular exclusion process could not have been improved by the exercise of some discretion by some official at some point, had any discretion been available for exercise. But the statutes and the regulations as they are now written provide none to the I.G. and confer none on me. The statutes and the regulations are framed in the most categorical of language. They compel a procrustean result in this case. I can find but meager satisfaction in reaching it.

CONCLUSION

For the reasons set out above the I.G.'s Motion for Summary Affirmance must be, and it is, granted. The I.G.'s exclusion of Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a term of five years, pursuant to the terms of section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), is thereby sustained.

JUDGE
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Richard J. Smith

Administrative Law Judge

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