Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Jeanne Hebert,
Petitioner,
- v. -
The Inspector General.
DATE: May 11, 1992
Docket No. C-92-012
DECISION
By letter dated August 20, 1991, Jeanne Hebert, the Petitioner herein, was
notified by the Inspector
General (I.G.), U.S. Department of Health & Human Services (HHS), that,
pursuant to section 1128(a)(1)
of the Social Security Act (the Act), she would be excluded for a period of
five years from participation in
the Medicare program and from participation in the State health care programs
which are defined in section
1128(h) of the Act (referred to in this Decision as Medicaid), based upon her
conviction of a criminal
offense related to the delivery of an item or service under Medicaid.
Petitioner filed a timely request for review of the I.G.'s action by an administrative
law judge. The I.G.
moved for summary disposition of the case. Inasmuch as there are no material
facts in dispute, I conclude
that there is no need for oral testimony or the confrontation of witnesses and
that summary disposition is
appropri-ate. I further conclude that, under the facts of this case, a five-year
exclusion is mandatory, and,
accordingly, summary disposition is entered in favor of the I.G.
Applicable Law
Sections 1128(a)(1) and (c) of the Act (codified at 42 U.S.C. 1320a-7 (a)(1)
and (c) (1988)) make it
mandatory for any individual who has been convicted of a criminal offense related
to the delivery of an
item or service under Medicare or Medicaid to be excluded from partici-pation
in such programs for a
period of at least five years.
Section 1128(i)(1) of the Act provides that an individual is deemed to have
been convicted of a criminal
offense "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 whether
the judgment of
conviction or other record relating to criminal conduct has been expunged."
Findings of Fact and Conclusions of Law 1/
1. During the period relevant to this case, Petitioner was director of nursing
at the Evangeline Home
Health Agency. I.G. Br. 10.
2. On March 28, 1991, Petitioner pled guilty in the Nineteenth Judicial District
Court, East Baton Rouge,
Louisiana, to the misdemeanor charge of criminal conspiracy to commit theft
valued at less than $100.00
(altering records to support fraudulent Medicaid claims). I.G. Ex. 1 & 2.
3. Petitioner was given a twelve-month suspended sentence of unsupervised probation.
She was also
obliged to pay $1,000 of the state's costs. I.G. Ex. 1 & 2.
4. Following satisfaction of the terms of her probation, the court set aside
Petitioner's conviction pursuant
to Article 894(B) of the Louisiana Code of Criminal Procedure. I.G. Ex. 5.
5. Article 894(B) of the Louisiana Code of Criminal Procedure provides that
a conviction set aside
pursuant to such article has ". . . the same effect as an acquittal. .
. ."
6. The Secretary of HHS delegated to the I.G. the authority to determine and
impose exclusions pursuant
to section 1128 of the Act. 48 Fed. Reg. 21662 (May 13, 1983).
7. By letter dated August 20, 1991, Petitioner was notified by the I.G. that
she would be excluded for five
years from participation in the Medicare and Medicaid programs, based upon her
conviction of a criminal
offense related to the delivery of an item or service under Medicaid, pursuant
to section 1128(a)(1) of the
Act. I.G. Ex. 6.
8. For purposes of the Act, an individual will be regarded to have been convicted
where a judgment of
conviction has been entered by a competent court, regardless of whether such
judgment of conviction or
criminal record has been expunged.
9. A criminal conviction based upon billing Medicaid for services not rendered
is sufficiently related to the
delivery of an item or service under Medicare or Medicaid to justify application
of the mandatory
exclusion provisions of section 1128(a)(1).
Argument
Petitioner admits that she pled guilty to the misdemeanor charge of criminal
conspiracy to commit theft
valued at less than $100.00. P. Br. Petitioner also admits that the criminal
offense relates to the delivery of
a health care item or service, within the meaning of section 1128(a)(1) of the
Act. P. Br. However,
Petitioner contends that her conviction was set aside and, therefore, cannot
be used as the basis of this
action against her. She asserts that Article 894(B) of the Louisiana Code of
Criminal Procedure provides
that if the term of a suspended sentence is completed, any special conditions
of probation are satisfied, and
a defendant has had no further criminal convictions or charges, the court which
imposed the original
sentence may set aside such conviction. According to Petitioner, when a court
sets aside a conviction in
this manner, it has the same effect as an acquittal. Petitioner submitted a
copy of a court record showing
that her conviction was set aside under Article 894(B).
Discussion
Section 1128(a)(1) of the Act, under which the I.G. seeks Petitioner's exclusion,
contains two requirements.
It requires that an individual (1) be convicted of a criminal offense, and (2)
that such conviction be related
to the delivery of an item or service under Medicare or Medicaid.
In the present case, although Petitioner's conviction may have been nullified
for purposes of Louisiana law,
that conviction remains a basis for an exclusion under section 1128(a)(1) of
the Act. Section 1128(i)(1) of
the Act, quoted supra, expressly provides that an individual will be regarded
as having been convicted, for
purposes of the Act, where a judgment of conviction has been entered by a competent
court, regardless of
whether such conviction or criminal record has been expunged (as distinguished
from being reversed on
appeal). Here, Petitioner pled guilty to a criminal offense and the court entered
judgment against her. That
the judgment was subsequently expunged because she complied with the terms of
her probation does not
nullify the original conviction for purposes of determining whether she should
be excluded from the
Medicare and Medicaid programs. As a prior decision of this office has stated,
"post-pleading erasures of
convictions [are] included within the statutory definition of conviction."
James F. Allen, M.D.F.P., DAB
CR71 (1990).
It is clear, furthermore, that this interpretation effectuates the intent of
Congress with regard to section
1128. The committee that drafted this section expressly stated that persons
who defraud Medicare or
Medicaid should not escape exclusion simply because their criminal cases are
handled under "first
offender" or "deferred adjudication" programs. As noted by the
committee, typically in these programs a
defendant pleads guilty but no actual judgment of conviction is entered against
him, provided he maintains
good behavior and satisfies any other conditions during a period of probation.
H.R. Rep. No. 727, 99th
Cong., 2d Sess. 75, reprinted in 1986 U.S. Code Cong. & Admin. News, 3607.
As to the requirement that the conviction be related to the delivery of an
item or service under Medicare or
Medicaid, it has already been held that submitting fraudulent Medicaid claims
constitutes a program-
related offense which justifies mandatory exclusion. Russell E. Baisley, DAB
CR128 (1991) and Marie
Chappell, DAB CR109 (1990). These holdings also comport fully with the often-expressed
intent of
Congress to protect the programs by barring those who seek to defraud them,
particularly by false billing.
See, H.R. Rep. No. 393, Part II, 95th Cong., 1st Sess. 47; reprinted in 1977
U.S. Code Cong. & Admin.
News 3039, 3050. Also see S. Rep. No. 109, 100th Cong., 1st Sess. 2; reprinted
in 1987 U.S. Code Cong.
& Admin. News 682.
Thus, I find that Petitioner was validly convicted of an offense related to
the delivery of health care items
or services under Medicaid, and that, as a consequence, the mandatory provisions
of section 1128(a)(1)
require her exclusion for a minimum of five years. An administrative law judge
has no discretion to alter
this minimum period. Jack W. Greene, DAB 1078 (1989), aff'd. sub nom., Greene
v. Sullivan, 731 F.
Supp. 835, 838 (E.D. Tenn 1990).
Conclusion
Petitioner's conviction mandates a five-year exclusion, pursuant to section 1128(a)(1) of the Act.
____________________________
Joseph K. Riotto
Administrative Law Judge
1. The exhibits and briefs submitted by the I.G. and Petitioner are referred
to herein as "I.G. Ex.
(number)," "P. Ex. (number)," "I.G. Br. (page)," P.
Br. (page), and I.G. Reply (page). They are all
admitted into evidence.