Rosetta Sawyer, CR No. 164 (1991)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Rosetta Sawyer,

Petitioner,
- v. -
The Inspector General.

DATE: November 12, 1991

Docket No. C-419

Decision No. CR164

DECISION

By letter dated March 22, 1991, the Inspector General
(I.G.), U.S. Department of Health & Human Services
(HHS), notified Petitioner that, because of her convic-
tion of a criminal offense related to the delivery of an
item or service under Medicare, within the meaning of
section 1128(a)(1) of the Social Security Act (the Act),
she was subject to a five-year exclusion from
participation in the Medicare and Medicaid programs. 1/

Petitioner requested a hearing before an administrative
law judge, contending (a) that she was not involved in
Medicare billing for the ambulance company that employed
her -- she only supervised the billing of commercial
insurance carriers and private payors; (b) that her
guilty plea was coerced by the F.B.I. and prosecutors,
who harassed her and promised to go easier on her
husband; (c) that she did not "truly commit" the crime
she pled to; and (d) that barring her from working for
Medicare providers would make it impossible for her to
earn a living. P. Reply.

The I.G. moved for summary disposition.

I have carefully considered the parties' arguments. I
conclude that summary disposition is appropriate. There
is no need for an in-person hearing, inasmuch as there
are no material and relevant matters in dispute. I
further determine that a five-year exclusion is mandated
by law and, accordingly, enter summary disposition in
favor of the I.G.


ISSUE

Was Petitioner convicted of a criminal offense related to
the delivery of an item or service under Medicare, within
the meaning of section 1128(a)(1) of the Act, thus
requiring her exclusion from the Medicare and Medicaid
programs?


APPLICABLE LAW

Sections 1128(a)(1) and (c) of the Act (42 U.S.C. 1320a-
7(a)(1) and (c) (1988)) make it mandatory for HHS to
exclude from participation in the Medicare and Medicaid
programs, for a minimum period of five years, "any
individual or entity that has been convicted of a
criminal offense related to the delivery of an item or
service under title XVIII or under any State health care
program."


FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. At all times relevant to the instant case, Petitioner
was the office manager of Michigan Ambulance, Inc.
I.G. Ex. 5/10 and 6; P. Reply. 2/

2. During 1986 and 1987, Michigan Ambulance billed
Medicare for ambulance services in excess of those
actually rendered. As a result of these fraudulent
claims, Michigan Ambulance received excessive payments
from the government, which personally benefitted
Petitioner and her husband.
I.G. Ex. 1 and 5/10-15.

3. In November of 1989, in the U.S. District Court for
the Eastern District of Michigan, Petitioner pled guilty
to theft of government funds. She was given a suspended
sentence, placed on probation for two years, ordered to
reside at a women's residence for 120 days, and fined
$1,000.00. I.G. Ex. 5 and 3.


4. Petitioner was represented by counsel at her
sentencing and told the magistrate that she expressly
declined to have a trial, that she understood the nature
of her plea and acknowledged that her conduct had been
wrongful, and that the plea was uncoerced and voluntary.
I.G. Ex. 5/5-13.

5. Petitioner's plea herein satisfies the statutory
requirement that there has been a conviction of a
criminal offense related to the delivery of an item or
service under Medicare or under a State health care
program.

6. The Secretary of HHS delegated to the I.G. the
authority to impose exclusions pursuant to section 1128
of the Act. 48 Fed. Reg. 21662 (May 13, 1983).

7. Petitioner's conviction of a criminal offense related
to the delivery of an item or service under Medicare
mandates her five-year exclusion from participation in
the Medicare and Medicaid programs.


DISCUSSION

Pursuant to section 1128(i)(3) of the Act, a guilty plea
such as that entered by Petitioner herein satisfies the
statutory requirement that there has been a conviction of
a criminal offense.

There is also explicit precedent holding that a criminal
conviction for making fraudulent claims upon Medicaid or
Medicare constitutes conviction ". . . of a criminal
offense related to the delivery of an item or service
under title XVIII or under any State health care program"
as required by the statute. Kenneth Krulevitz, M.D., DAB
CR24 (1989) (Docketed as C-75).

Petitioner's present contentions that she was not
involved in Medicare billing, that her guilty plea was
coerced, that she did not commit the crime she pled to,
and that excluding her would make it impossible for her
to earn a living are, essentially, legally immaterial.
It is well established that the HHS appeal process may
not be utilized to collaterally attack a prior criminal
conviction or to now deny what was previously admitted.
Richard G. Philips, D.P.M., DAB CR133 (1991) (docketed as
C-347). I would note, though, that Petitioner's
assertions herein are wholly inconsistent with her prior
admissions to the U.S. magistrate, and that preponderant
evidence shows that she acknowledged her guilt and did so
freely, intentionally, and with the assistance of
counsel.

Lastly, there is no legal basis for considering
mitigation or hardship inasmuch as an administrative law
judge has no authority to waive or reduce the statutory
five-year minimum exclusionary period which must follow
an appropriate conviction. See Durrell A. Chappell, DAB
CR108 (1990) (docketed as C-241) and district court cases
cited therein.


CONCLUSION

The I.G. properly excluded Petitioner from the Medicare
and Medicaid programs pursuant to section 1128(a)(1) of
the Act. The five-year minimum period of exclusion is
mandated by statute. Summary disposition in favor of the
I.G. is appropriate.

____________________________
Joseph K. Riotto
Administrative Law Judge

1. In this decision, "Medicaid" means those health
care programs enumerated in section 1128(h) of the Act.

2. The I.G. introduced eight exhibits, which were all
admitted. They are cited here as "I.G. Ex. 1/(page)"
through "I.G. Ex. 8/(page)." The I.G.'s brief in support
of the motion for summary disposition is cited as "I.G.
Brief." Petitioner's memorandum responding to the I.G.
is cited as "P. Reply."