Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Thelma Walley, Petitioner,
- v. -
The Inspector General.
DATE: March 18, 1993
Docket No. C-93-012
Decision No. CR255
DECISION ON REMAND
I issue this decision on remand pursuant to a decision by an appellate panel
of the Departmental Appeals
Board which affirmed in part my original decision in this case, and which reversed
and remanded to me the
balance of my original decision for new findings of fact and conclusions of
law. I held in my original
decision that Petitioner had been convicted of a criminal offense within the
meaning of section 1128(i) of
the Social Security Act (Act). Thelma Walley, DAB CR207 (1992). I held further
that she had been
convicted of an offense related to the delivery of items or services under the
Texas Medicaid program
within the meaning of section 1128(a)(1) of the Act. Id. I concluded, therefore,
that the five-year
exclusion which the Inspector General (I.G.) imposed and directed against Petitioner
from participating in
the Medicare and Medicaid programs was mandated by law.
The appellate panel affirmed my finding that Petitioner had been convicted
of a criminal offense.
However, it reversed my finding that Petitioner had been convicted of a program-related
offense within the
meaning of section 1128(a)(1) of the Act. Thelma Walley, DAB 1367 (1992). It
held that this finding was
not supported by substantial evidence. It vacated my conclusion that Petitioner's
exclusion was mandated
by law and it remanded the case to me for additional findings as to the issue
of whether Petitioner was
convicted of a program-related offense. Id. at 1 - 2, 10 - 13.
On January 19, 1993, I conducted an in-person hearing in Dallas, Texas. Both
parties filed post-hearing
briefs. I have carefully considered the evidence in this case, including the
testimony and the exhibit which
I admitted at the January 19, 1993 hearing. Also, I have considered applicable
law. Finally, I have
considered the parties' arguments. I conclude that Petitioner was convicted
of a criminal offense related to
the delivery of an item or service under the Texas Medicaid program, and I sustain
the five-year exclusion
which the I.G. imposed and directed against Petitioner pursuant to section 1128(a)(1)
of the Act.
ISSUE
The issue in this case is whether Petitioner was convicted of a criminal offense
related to the delivery of an
item or service under the Texas Medicaid program, within the meaning of section
1128(a)(1) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Findings that were not excepted to by Petitioner or which were affirmed by the appellate panel
In my original decision, I made 14 Findings of Fact and Conclusions of Law
(Findings). Petitioner did not
file exceptions to my Findings 1 - 7, 11, and 13. She filed exceptions to my
Findings 8 - 10, 12, and 14.
The appellate panel affirmed my Finding 9, and vacated my Findings 8, 10, 12,
and 14. For purposes of
clarity and as a convenience to the parties, I set out here my original Findings
1 -7, 9, 11, and 13:
1. Petitioner is a licensed vocational nurse who was working at the Stanford
Convalescent Center in Fort
Worth, Texas, in August 1990. I.G. Ex. 1, Att. 2. 1/
2. On September 11, 1990, Petitioner was charged in a Texas court with two
counts of the criminal offense
of unlawfully destroying tangible property belonging to other individuals. I.G.
Ex. 1, Att. 3, 4.
3. In each count, Petitioner was charged with having unlawfully destroyed one
tablet of the drug Klonopin,
on August 22, 1990. I.G. Ex. 1, Att. 3, 4.
4. The individuals whose medications Petitioner was charged with having destroyed
were named Nancy
Dayton and Frances Moore. I.G. Ex. 1, Att. 3, 4.
5. On September 21, 1990, Petitioner pled nolo contendere to both of the criminal
charges which had been
filed against her. I.G. Ex. 1, Att. 5, 6.
6. On September 21, 1990, a Texas court found Petitioner guilty of both of
the criminal charges which had
been filed against her, based on her nolo contendere pleas to those charges.
I.G. Ex. 1, Att. 5, 6.
7. Nancy Dayton and Frances Moore were patients at the Stanford Convalescent
Center on August 22,
1990. I.G. Ex. 3, Att. 8, 9; I.G. Ex. 4.
9. Petitioner was convicted of a criminal offense. Findings 5, 6; Social Security Act, section 1128(i).
11. The Secretary of the Department of Health and Human Services (Secretary)
delegated to the I.G. the
authority to determine, impose, and direct exclusions pursuant to section 1128
of the Act. 48 Fed. Reg.
21662 (May 13, 1983).
13. The exclusion imposed and directed against Petitioner by the I.G. is for
five years, the minimum
period required under the Act. Social Security Act, sections 1128(a)(1) and
1128(c)(3)(B).
B. Findings vacated by the appellate panel which are not relied on in this decision
The Findings which I made in my original decision which were vacated by the
appellate panel are as
follows:
8. On August 22, 1990, Nancy Dayton and Frances Moore were receiving items
or services which were
reimbursed by the Texas Medicaid program. I.G. Ex. 3, Att. 8, 9; I.G. Ex. 4.
10. Petitioner was convicted of a criminal offense related to the delivery
of an item or service under
Medicaid, within the meaning of section 1128(a)(1) of the Act. Findings 1 -
8; Social Security Act, section
1128(a)(1).
12. There are no disputed issues of material fact in this case and summary disposition is appropriate.
14. The exclusion imposed and directed against Petitioner by the I.G. is mandated
by law. Findings 1 - 10;
Social Security Act, sections 1128(a)(1) and 1128(c)(3)(B).
C. New Findings made on remand
I make the following Findings on remand which substitute for Findings vacated by the appellate panel: 2/
15. On August 22, 1990, Nancy Dayton and Frances Moore were recipients of items
or services that were
reimbursed by the Texas Medicaid program. I.G. Ex. 3, Att. 8; Tr. at 30 - 36.
3/
16. Items or services which the Texas Medicaid program reimbursed for Nancy
Dayton and Frances
Moore included stays in the Stanford Convalescent Center. I.G. Ex. 3, Att. 8;
I.G. Ex. 3, Att. 9; Tr. at 30 -
36.
17. The Texas Medicaid program reimbursed the Stanford Convalescent Center
for stays by Nancy Dayton
and Frances Moore which included stays on August 22, 1990. I.G. Ex. 3, Att.
8; I.G. Ex. 3, Att. 9; Tr. at
32 - 36, 38 - 40.
18. The tablets of Klonopin that Petitioner destroyed that belonged to Nancy
Dayton and Frances Moore
were intended to be dispensed to Ms. Dayton and Ms. Moore during their Medicaid-reimbursed
stays at the
Stanford Convalescent Center. Findings 1 -7, 15 - 17.
19. The tablets of Klonopin that Petitioner destroyed that belonged to Nancy
Dayton and Frances Moore
were intended to be dispensed pursuant to prescriptions that were reimbursed
by the Texas Medicaid
program. I.G. Ex. 5, pp. 1 - 2; Tr. at 42 - 52.
20. Petitioner was convicted of a criminal offense related to the delivery
of an item or service under
Medicaid within the meaning of section 1128(a)(1) of the Act. Findings 1 - 7,
9, 15 - 19; Social Security
Act, section 1128(a)(1).
21. The exclusion imposed and directed against Petitioner by the I.G. is mandated
by law. Findings 1 - 7,
9, 11, 13, 15 - 20; Social Security Act, sections 1128(a)(1) and 1128(c)(3)(B).
ANALYSIS
This case has its genesis in Petitioner's conviction of the crime of destroying
tablets of the drug Klonopin,
belonging to two individuals, Ms. Nancy Dayton and Ms. Frances Moore. The facts
of this case, which I
found previously and which were not disputed, are that Petitioner was working
as a licensed vocational
nurse at the Stanford Convalescent Center, a facility in Fort Worth, Texas.
Ms. Dayton and Ms. Moore
were patients at the facility. On August 22, 1990, Petitioner committed the
criminal offense of destroying
Klonopin tablets belonging to Ms. Dayton and Ms. Moore.
The sole issue now before me is whether Petitioner was convicted of a criminal
offense related to the
delivery of an item or service under the Texas Medicaid program. 4/ I must sustain
the five-year exclusion
which the I.G. imposed against Petitioner if I find that the preponderance of
the evidence shows that
Petitioner was convicted of such an offense. Social Security Act, sections 1128(a)(1),
(c)(3)(B). In its
decision, the appellate panel identified two suggested ways in which the I.G.
could satisfy his burden of
proving that Petitioner was convicted of an offense within the meaning of section
1128(a)(1) of the Act.
The appellate panel found that the requisite nexus would exist if the I.G. proved
that the individual drugs
destroyed by Petitioner were items reimbursed by Medicaid. DAB 1367 at 9. The
appellate panel found
also that the requisite nexus would exist if the I.G. proved that the nursing
facility services received by Ms.
Dayton or Ms. Moore on August 22, 1990, which would necessarily include the
responsibility for the
administration and safekeeping of the drugs, were covered services reimbursed
by Medicaid. Id.
At the January 19, 1993 hearing, the I.G. offered evidence to establish both
theories of proof identified by
the appellate panel in its decision. The I.G. proved, as a necessary element
of both of these theories, that
Ms. Dayton and Ms. Moore were recipients of items or services that were reimbursed
by the Texas
Medicaid Program. Finding 15. The I.G. proved that the Klonopin tablets belonging
to Ms. Dayton and
Ms. Moore which Petitioner destroyed were items reimbursed by Medicaid. Finding
19. The I.G. proved
also that stays by Ms. Dayton and Ms. Moore at the Stanford Convalescent Center,
including stays on the
date of August 22, 1990, were reimbursed by Medicaid. Findings 16 - 17.
At the January 19, 1993 hearing, I received into evidence a document which
I identified as I.G. Ex. 5,
which proves that both Ms. Dayton and Ms. Moore had received Medicaid-reimbursed
prescriptions for
Klonopin. Ms. Dayton's Medicaid-reimbursed prescription for Klonopin was filled
on August 15, 1990,
seven days before Petitioner committed the criminal offense of destroying a
Klonopin tablet belonging to
Ms. Dayton. I.G. Ex. 5, p. 1; Tr. at 49 - 50. Ms. Moore's Medicaid-reimbursed
prescription for Klonopin
was filled on August 14, 1990, eight days before Petitioner committed the criminal
offense of destroying a
Klonopin tablet belonging to Ms. Moore. I.G. Ex. 5, p. 2; Tr. at 51. Both the
prescriptions of Klonopin to
Ms. Dayton and to Ms. Moore were for quantities of Klonopin sufficient to include
the pills that were
intended to be dispensed to Ms. Dayton and to Ms. Moore on August 22, 1990.
I.G. Ex. 5, pp. 1 - 2; Tr. at
49 - 51.
The inference which I draw from this evidence is that the Klonopin prescriptions
issued to Ms. Dayton on
August 15, 1990, and to Ms. Moore on August 14, 1990, included the pills that
Petitioner destroyed. Thus,
Petitioner was convicted of a criminal offense related to the delivery of an
item or service under Medicaid,
in that she was convicted of destroying pills that were purchased by the Texas
Medicaid program.
Petitioner argues that I should not have received into evidence I.G. Ex. 5,
contending that the document is
inadmissible hearsay. She argues that the witness whom the I.G. called to explain
the exhibit, Sharon
Thompson, is not qualified to explain it. Therefore, according to Petitioner,
her explanation is not credible.
Finally, Petitioner asserts that I cannot infer reasonably from the evidence
of record that the Klonopin pills
destroyed by Petitioner were pills that were paid for by the Texas Medicaid
program.
The document, I.G. Ex. 5, contains hearsay. It consists of a record of data
maintained by the Texas
Department of Human Services. As I ruled at the January 19, 1993 hearing, I
routinely admit into evidence
documents or statements which contain hearsay. The fact that evidence consists
of or contains hearsay will
not serve as an automatic basis to exclude that evidence from admission in hearings
which I conduct
pursuant to sections 205(b) and 1128 of the Act. See Richardson v. Perales,
402 U.S. 389, 410 (1971).
Furthermore, regulations which apply to the conduct of administrative hearings
under section 1128 of the
Act do not direct that evidence be excluded automatically because it consists
of or contains hearsay. 42
C.F.R. 1005.17(b) (1992).
On the other hand, I may exclude -- or, at the least, not draw inferences from
-- evidence which is of
questionable probative value. The critical question concerning I.G. Ex 5 is
not whether it is hearsay, but
whether it constitutes reliable proof of the necessary elements of the I.G.'s
theory. Put simply, the issue is
whether I.G. Ex. 5 proves that Ms. Dayton and Ms. Moore received prescriptions
of Klonopin on August
14 and 15, 1990, in amounts sufficient to include the pills which were to be
dispensed on August 22, 1990,
which were paid for, at least in part, by the Texas Medicaid program.
I.G. Ex. 5 does not contain a legend which explains the data entries in the
exhibit. I cannot conclude solely
from the exhibit itself that it proves that which the I.G. contends it proves.
Nor can I conclude from the
face of the exhibit that the data contained in the exhibit is accurate. The
exhibit and its contents were
explained at the January 19, 1993 hearing by a witness, Ms. Sharon Thompson.
I can conclude only that
I.G. Ex. 5 is what the I.G. purports it to be, and is reliable, by accepting
as credible Ms. Thompson's
testimony.
Ms. Thompson testified that for ten years she has been supervisor of the sanctions
unit of the Texas
Department of Human Services. Tr. at 21. She testified that her unit conducts
investigations and makes
determinations as to whether providers should be sanctioned by the Texas Department
of Human Services.
Id. Ms. Thompson testified that she had approximately 22 years of experience
in matters involving the
Medicaid program. Tr. at 22. Ms. Thompson testified that I.G. Ex. 5 was a routine
business record of the
Texas Department of Human Services and is representative of a type of document
that she and her staff
have had access to for years in the performance of their duties. Tr. at 44.
She was able to identify and
explain each relevant category of data in I.G. Ex. 5, based on her experience
with the Texas Medicaid
program and on her familiarity with the type of document that I.G. Ex. 5 represents.
Tr. at 45 - 52.
I am satisfied from Ms. Thompson's testimony that she has the experience and
knowledge to interpret and
explain I.G. Ex. 5, and to attest that it is a reliable record of that which
she purported it to be. In reaching
this conclusion, I recognize that Ms. Thompson did not make the data entries
which comprise the exhibit,
nor is she the employee of the Texas Department of Health who is the custodian
of the data which
comprises I.G. Ex. 5. She cannot testify with absolute certainty that the data
was accurately transcribed
into the Texas Department of Health's records system. But Ms. Thompson's testimony
assures me that I.G.
Ex. 5 is an excerpt of the Texas Department of Health's ordinary business records,
maintained as a matter
of routine. I am satisfied from Ms. Thompson's testimony that it is more probable
than not that I.G. Ex. 5
contains what she attested to and that it is an accurate record of data collected
by the Texas Department of
Health. 5/ Thus the preponderance of the evidence supports the I.G.'s contention.
The I.G. had previously offered an affidavit executed by Ms. Thompson, along
with other exhibits, to
support his motions for summary disposition in this case. I.G. Ex. 2. In reversing
and remanding my
original decision, the appellate panel held that Ms. Thompson's affidavit (and
the affidavit of another
individual, William Hughes) did not suffice to explain entries in another exhibit
relied on by the I.G., I.G.
Ex. 3, Att. 8. 6/ The appellate panel observed that the affidavit of Ms. Thompson
did not explain the
entries in I.G. Ex. 3, Att. 8, but instead made "conclusory statements
that Dayton's and Moore's stays at the
facility were 'Medicaid stays.'" DAB 1367 at 11. The difference between
Ms. Thompson's testimony and
her affidavit is that, in her testimony, she explained why, based on her experience
with the Texas Medicaid
program, she would be in a position to know what the entries in I.G. Ex. 3,
Att. 8, and I.G. Ex. 5 meant.
Also, she gave explanations of the entries in I.G. Ex. 3, Att. 8 and I.G. Ex.
5.
I infer that the pills Petitioner destroyed, belonging to Ms. Dayton and Ms.
Moore, were dispensed from
Klonopin prescriptions paid for by the Texas Medicaid program. It is possible
that the pills which
Petitioner destroyed were from some source other than Medicaid-reimbursed prescriptions.
There is no
way to exclude definitively that possibility from the evidence in this case.
But it is more likely than not
that Medicaid paid for the pills which Petitioner destroyed. Medicaid paid for
prescriptions for Klonopin
to Ms. Dayton and Ms. Moore only days prior to Petitioner destroying Klonopin
pills belonging to these
two individuals. Medicaid paid for sufficient quantities of Klonopin in prescriptions
issued to Ms. Dayton
and Ms. Moore to include that which was to be administered to Ms. Dayton and
Ms. Moore on August 22,
1990. Given that, it would not be logical for Ms. Dayton or Ms. Moore to obtain
Klonopin from some
other source not compensated for by the Texas Medicaid program. That greatly
reduces the possibility, if it
does not eliminate it altogether, that the Klonopin destroyed by Petitioner
came from some source other
than Medicaid-reimbursed prescriptions. Therefore, I conclude that the preponderance
of the evidence in
this case establishes that the Klonopin destroyed by Petitioner had been paid
for by the Texas Medicaid
program.
The I.G.'s proof that Petitioner destroyed Klonopin pills that were purchased
by the Texas Medicaid
program is sufficient to establish that Petitioner was convicted of a criminal
offense related to the delivery
of an item or service under Medicaid. At the January 19, 1993 hearing, the I.G.
proved also that the
nursing home stays of Ms. Dayton and Ms. Moore, including stays on August 22,
1990, were reimbursed
by Medicaid. This constitutes an independent basis for establishing that Petitioner
was convicted of a
criminal offense related to the delivery of an item or service under Medicaid.
I had previously admitted into evidence a document, I.G. Ex. 3, Att. 8, which
is a printout of information
generated by the Texas Medicaid program. Petitioner objected to my receiving
that exhibit on the ground
that it contained hearsay. I overruled that objection in my original decision.
In reversing and remanding
my original decision, the appellate panel did not find error in my admitting
into evidence I.G. Ex. 3, Att. 8.
Rather, it concluded that the exhibit did not on its face, or as explained by
Ms. Thompson's and Mr.
Hughes' affidavits, establish that Ms. Dayton's and Ms. Moore's stays at the
Stanford Convalescent Center,
including stays on August 22, 1990, were reimbursed by Medicaid. DAB 1367 at
10 - 11.
Ms. Thompson testified about I.G. Ex. 3, Att. 8, at the January 19, 1993 hearing.
I am satisfied, based on
her testimony, that the exhibit proves that Ms. Dayton's and Ms. Moore's stays
at the Stanford
Convalescent Center on August 22, 1990 were reimbursed by the Texas Medicaid
program. Ms.
Thompson testified that I.G. Ex. 3, Att. 8, proves that the Texas Medicaid program
made payments to the
Stanford Convalescent Center for stays by both Ms. Dayton and Ms. Moore. I.G.
Ex. 3, Att. 8, pp. 1 - 2;
Tr. at 31 - 36. The stay reimbursed on behalf of Ms. Dayton covered the 153-day
period from May 1, 1990
through September 30, 1990. I.G. Ex. 3, Att. 8, p. 1; Tr. at 32 - 33. The stay
reimbursed on behalf of Ms.
Moore covered the 90-day period from July 3, 1990 through September 30, 1990.
I.G. Ex. 3, Att. 8, p. 2;
Tr. at 35 - 36. Ms. Thompson testified persuasively that I.G. Ex. 3, Att. 8,
proves that the stays at the
Stanford Convalescent Center by Ms. Dayton and Ms. Moore which were reimbursed
by the Texas
Medicaid program included August 22, 1990. That is established by the column
headed "TPD" (total days
paid for by Medicaid) on each page of the exhibit. I.G. Ex. 3, Att. 8, pp. 1
- 2; Tr. at 32, 35. It shows that
the days paid for by Medicaid for Ms. Dayton and Ms. Moore equalled the total
number of days including
the beginning and ending dates of Ms. Dayton's and Ms. Moore's stays and all
dates in between. Id.
Therefore, Ms. Dayton's and Ms. Moore's stays would have included August 22,
1990, because that date
falls within the period covered by the beginning and end date of these recipients'
stays.
Petitioner's objections to the sufficiency of evidence relating to the question
of whether Ms. Dayton's and
Ms. Moore's stays at the Stanford Convalescent Center on August 22, 1990 were
reimbursed by Medicaid
are of the same character as are her objections concerning proof that Petitioner
destroyed drugs paid for by
Medicaid. She objected to my receiving I.G. Ex. 3, Att. 8, into evidence, and
I overruled that objection for
the same reason that I overruled Petitioner's objection to my receiving I.G.
Ex. 5. Petitioner also
questioned Ms. Thompson's qualifications to attest to the meaning and accuracy
of I.G. Ex. 3, Att. 8. I find
Ms. Thompson qualified to explain this exhibit and to vouch for its accuracy
based on her experience with
the Texas Medicaid program and her testimony that, by virtue of her experience,
she is extremely familiar
with the kinds of information utilized by Medicaid and the systems utilized
by the Texas Department of
Health to collect and analyze data. Tr. at 32 - 33.
Petitioner argues that neither I.G. Ex. 8, Att. 3, nor Ms. Thompson's testimony
provide proof that either
Ms. Dayton or Ms. Moore were actually on the premises of the Stanford Convalescent
Center on August
22, 1990. She reasons that it is possible that either or both of these individuals
could have been excused on
a pass on the date in question. While it is certainly possible that Ms. Dayton
or Ms. Moore might not have
been physically present at the Stanford Convalescent Center on August 22, 1990,
there is no evidence to
suggest that either of these individuals were absent. The evidence proves, to
the contrary, that Medicaid
reimbursed the facility for these individuals' stays there on August 22, 1990.
I find that the preponderance
of the evidence is that the two individuals were present at the facility on
August 22, 1990.
Moreover, a finding that either of these individuals was present is not an
essential element of my decision.
What is important is that Petitioner destroyed Klonopin that was to be issued
to Ms. Dayton and Ms. Moore
on August 22, 1990. That medication was to have been issued ancillary to Medicaid-reimbursed
stays
which included August 22, 1990. Petitioner would not have been in a position
to destroy the medication
belonging to Ms. Dayton and Ms. Moore except for the fact that these individuals
were receiving
Medicaid-reimbursed stays at the Stanford Convalescent Center on August 22,
1990. Therefore, the
physical presence of Ms. Dayton or Ms. Moore at the moment that Petitioner committed
her crime is not a
necessary element of my conclusion that Petitioner committed a criminal offense
related to the delivery of
an item or service under Medicaid.
CONCLUSION
Based on the evidence and the law, I conclude that Petitioner was convicted
of a criminal offense related to
the delivery of an item or service under Medicaid, within the meaning of section
1128(a)(1) of the Act.
The five-year exclusion which the I.G. imposed and directed against Petitioner
was mandated by law.
Therefore, I sustain the exclusion.
___________________________
Steven T. Kessel
Administrative Law Judge
1. In my original decision, I noted that I had admitted into evidence four
I.G. exhibits which I had
designated I.G. Ex. 1 through 4. I noted that some of these exhibits had attachments
which I referred to by
attachment number. I noted also that I had admitted into evidence three Petitioner
exhibits which I had
designated P. Ex. 1 through 3. DAB CR207 at 3, n.2. All of these exhibits remain
in evidence. At the
January 19, 1993 hearing, I admitted into evidence an additional I.G. exhibit
which I marked as I.G. Ex. 5.
2. I have elected to number these new Findings beginning with Finding 15. That
is for the convenience
of the parties and to avoid any confusion with Findings that I previously made.
Two of my new Findings
(Findings 20 and 21) have the identical text to two Findings which were vacated
by the appellate panel
(Findings 10 and 14). These Findings are, however, supported by evidence which
was not before me at the
time I issued my original decision in the case, and that evidence is cited in
these Findings, either directly,
or by reference to other Findings which cite the new evidence.
3. During the hearing which I held on January 19, 1993, counsel for the I.G.
referred to certain exhibits
in evidence as "I.G. Exhibit 3, Attachment 1," and "I.G. Exhibit
3, Attachment 2." See Tr. at 27 - 28, 30.
In fact, the exhibit which counsel for the I.G. referred to as "I.G. Exhibit
3, Attachment 1" is in evidence as
I.G. Ex. 3, Att. 8. The exhibit which counsel for the I.G. referred to as "I.G.
Exhibit 3, Attachment 2" is in
evidence as I.G. Ex. 3, Att. 9. My reference to these exhibits in my Findings
is therefore to the exhibits as
they appear in the record of this case and not to the manner in which they were
cited by counsel for the I.G.
at the January 19, 1993 hearing.
4. Section 1128(a)(1) requires that a party be convicted of a criminal offense
related to the delivery of an
item or service under Medicare or under a State health care program. The I.G.
does not contend that
Petitioner was convicted of a criminal offense related to the delivery of an
item or service under Medicare.
5. The I.G. did not offer testimony by an employee of the Texas Department
of Health responsible for
creating or maintaining records such as I.G. Ex. 5. Arguably, such an employee
might be in a better
position than Ms. Thompson to vouch for the contents of I.G. Ex. 5. On the other
hand, Ms. Thompson's
experience is such that she is very familiar with documents such as I.G. Ex.
5. Furthermore, it is unlikely
that another employee could state with any assurance that the specific data
entries in I.G. Ex. 5 are
accurate, inasmuch as these entries are based on records obtained by the Texas
Medicaid program from
external sources. See Tr. at 42.
6. Three paragraphs later in this Decision, I discuss I.G. Ex. 3, Att. 8 and
my rationale for accepting it as
proof that Ms. Dayton's and Ms. Moore's stays at the Stanford Convalescent Center,
including stays on
August 22, 1990, were reimbursed by the Texas Medicaid program.