Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Prabha Prakash, M.D., Petitioner,
- v. -
The Inspector General.
DATE: May 24, 1993
Docket No. C-93-032
Decision No. CR265
DECISION
By letter dated November 16, 1992, Prabha Prakash, M.D., the Petitioner herein,
was notified by the
Inspector General (I.G.), U.S. Department of Health & Human Services (HHS),
that it had been decided to
exclude her for a period of five years from participation in the Medicare, Medicaid,
Maternal and Child
Health Services Block Grant and Block Grants to States for Social Services programs.
(I use the term
"Medicaid" in this Decision when referring to the programs other than
Medicare.) The I.G. explained that
the five-year exclusion was mandatory under sections 1128(a)(1) and 1128(c)(3)(B)
of the Social Security
Act (Act) because Petitioner had been convicted 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, and the
I.G. moved for summary
disposition.
Because I have determined that there are no material and relevant factual issues
in dispute (i.e., the only
matter to be decided is the legal significance of the undisputed facts), and
because Petitioner has agreed
that I should hear this case via an exchange of briefs in lieu of an in-person
hearing, I am deciding this case
on the basis of the parties' written submissions. 1/
Based on the parties' submissions, I am granting the I.G.'s motion for summary
disposition and affirming
the I.G.'s determination to exclude Petitioner from participation in Medicare
and Medicaid for a period of
five years.
APPLICABLE LAW
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act 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 participation in such programs for a period of at least five
years.
Section 1128(b) permits, but does not mandate, the exclusion of any person
whom the Secretary of HHS
concludes is guilty, or has been convicted, of health care related fraud, kickbacks,
false claims, or similar
activities. It incorporates, as bases for exclusion, offenses described in sections
1128A and 1128B of the
Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. During the relevant period herein, Petitioner was a duly-licensed physician,
specializing in psychiatry,
and a Medicaid provider in Yonkers, New York. I.G. Ex. 2 at 2.
2. Petitioner was accused, in a Superior Court Information filed in the Westchester
County Court, of one
count of Grand Larceny (third degree) and one count of Offering A False Instrument
For Filing (second
degree). I.G. Ex. 2 at 1 - 3.
3. Specifically, the State alleged with regard to the charge of Grand
Larceny that, during the period from January 1, 1989 to on or about September
30, 1991, Petitioner had
intentionally submitted to New York authorities numerous Medicaid claims which
contained false
statements and false information and by which she claimed (and subsequently
received) $8,238 in
reimbursement for having provided a service described as "procedure code
90844," even though she had,
in fact, not done so. With regard to the charge of Offering A False Instrument
For Filing, the State alleged
that Petitioner submitted to New York authorities a Medicaid claim which she
knew contained false
statements and false information. This claim reflected that on June 6, 1991,
Petitioner provided a service
described as "procedure code 90844" to a patient who was a Medicaid
recipient, even though she had, in
fact, not done so. I.G. Ex. 2 at 1 - 3.
4. Procedure code 90844 is "a psychiatric therapy procedure code for a
session of approximately 45 to 50
minutes (37 minutes to 1 hour)." I.G. Ex. 2 at 2 - 3.
5. On February 6, 1992, Petitioner pled guilty in the Westchester County Court
to one count of Offering a
False Instrument for Filing (second degree). I.G. Ex. 1.
6. Petitioner admitted to the judge presiding over her criminal case that she
had, knowingly and with the
intention of defrauding the State, presented to the New York Department of Social
Services a written
instrument which contained false statements and false information. Petitioner
also admitted that the false
filing was one of a series of such filings resulting in the State paying her
$8,238 to which she was not
entitled. In addition, Petitioner returned to the State a $450 check which she
had not yet cashed. I.G. Ex. 1
at 8 - 9; I.G. Ex. 2 at 2 - 3.
7. The Westchester County Court accepted Petitioner's guilty plea and sentenced
her to a one year
conditional discharge (revocable if another offense is committed), in addition
to requiring her to make
restitution of $8,238. I.G. Ex. 1 at 10, 13 - 14; I.G. Ex. 3.
8. 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 (1983).
9. Petitioner's guilty plea, and its acceptance by the Westchester County Court,
constitutes a conviction of
a criminal offense within the meaning of section 1128(i)(3) of the Act. Findings
1 - 7.
10. Petitioner's offense -- filing false Medicaid claims -- constitutes program-related
misconduct. Findings
1 - 7, 9.
11. Where a criminal conviction meets the criteria of section 1128(a)(1), then
section 1128(a)(1) is
controlling and the I.G. must impose a mandatory five-year exclusion pursuant
to section 1128(c)(3)(B) of
the Act. The permissive provisions of section 1128(b) apply only to convictions
for offenses other than
those related to the delivery of an item or service under Medicare or Medicaid.
12. Petitioner was convicted of a criminal offense related to the delivery
of a service under Medicaid,
within the meaning of section 1128(a)(1) of the Act. Findings 1 - 11.
13. The new regulations at 42 C.F.R. 1001.101(a) and 1001.102(a) do not affect
the basis for or the
length of Petitioner's exclusion from what was required by the Act prior to
the promulgation of the new
regulations.
14. The exclusion of individuals or entities from Medicare and Medicaid is
unalterably required once a
relevant criminal conviction has occurred, and neither the I.G. nor the administrative
law judge (ALJ) may
reduce the five-year minimum exclusion, regardless of the presence of factors
which might otherwise be
regarded as mitigating.
15. The I.G. properly imposed and directed an exclusion against Petitioner
from participation in Medicare
and Medicaid for the minimum mandatory period of five years. Findings 1 - 14.
PETITIONER'S ARGUMENT
Petitioner states that she "... is not disputing the fact that she had
been convicted as per the I.G.'s statement
of facts. She is, however, disputing the reasonableness of the exclusion in
light of the mitigating factors
involved." P. Br. at 2. Among the factors Petitioner cited are her age
(64), her previously good
professional record, her restitution of the monies involved, her having been
found not to have billed
patients when she did not provide professional services to them, and the fact
that the judge who sentenced
her believed that she was "truly sorry" and issued a conditional discharge,
as well as the fact that the State
Board For Professional Medical Conduct had determined that a reprimand and censure
constituted
sufficient corrective action. Petitioner stresses that, due to her advanced
age, excluding her for five years is
tantamount to excluding her for the remainder of her professional career. P.
Br. at 2 - 3; P. Ex. 1.
As to substantive law, Petitioner argues that "this conviction should
be considered under the permissive
section 1128(b)(1) of the Act," and that "... the I.G.'s action was
essentially punitive in nature and not
remedial." P. Br. at 2 - 3. Further, Petitioner argues that her five year
exclusion, "will not provide the
Secretary with adequate opportunity to determine whether there is reasonable
assurance that the types of
offenses for which [she] was excluded will not re-occur." P. Br. at 3.
Petitioner argues that her
participation in the programs with a monitor would be the best method by which
to make such an
evaluation. Lastly, Petitioner objects to the I.G.'s citation of current federal
regulations (new regulations)
at 42 C.F.R. 1001.101(a) and 1001.102(a) (published at 57 Fed. Reg. 3331 (January
29, 1992)) on the
theory that such regulations had not been promulgated at the time she committed
her offense. P. Br. at 3.
DISCUSSION
The first statutory requirement for mandatory exclusion pursuant to section
1128(a)(1) of the Act is that the
individual in question had to have been convicted of a criminal offense under
federal or State law. In the
case at hand, Petitioner pled guilty and the New York court, after careful inquiry,
accepted the plea.
Section 1128(i)(3) of the Act provides that when an individual enters a plea
of guilty, and the court accepts
that plea, such person is considered to have been convicted of a criminal offense.
Next, it is required by section 1128(a)(1) that Petitioner's criminal offense
be related to the delivery of an
item or service under Medicare or Medicaid. It is well-established in decisions
of the Departmental
Appeals Board (DAB) that filing false Medicare or Medicaid claims constitutes
program-related
misconduct, sufficient to mandate exclusion. Jack W. Greene, DAB CR19 (1989),
aff'd, DAB 1078
(1989), aff'd, Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990).
Also, see Francis Shaenboen,
DAB 1249 (1991), in which an appellate panel of the DAB found that false Medicaid
billing is inextricably
intertwined with, and, therefore, related to, the delivery of items or services,
as specified by the Act.
Consequently, I conclude that Petitioner's action in the present case -- billing
Medicaid for services that
were not provided as alleged -- constitutes criminal activity related to the
delivery of Medicaid services.
Thus, I find that as Petitioner was convicted of a criminal offense related
to the delivery of Medicaid
services, the I.G. had a basis upon which to exclude her.
Petitioner contends, however, that her five-year exclusion is unreasonable
in light of mitigating factors
which exist in her case. I find, however, that whether or not mitigating factors
exist is irrelevant. Under
sections 1128(a)(1) and 1128(c)(3)(B) of the Act, the exclusion of providers
from Medicare and Medicaid
is unalterably required once a program-related criminal conviction has occurred.
Neither the I.G. nor this
judge may reduce a five-year minimum exclusion, regardless of the presence of
factors which might
otherwise be regarded as mitigating. Greene.
Petitioner contends also that her criminal conviction should be assessed pursuant
to the permissive
exclusion provision at section 1128(b)(1) of the Act, rather than under the
mandatory exclusion provision
at section 1128(a)(1) of the Act. However, where a criminal conviction meets
the criteria of section
1128(a)(1), then section 1128(a)(1) is controlling and the I.G. must impose
the mandatory exclusion which
the statute calls for. The fact that the criminal conviction may appear also
to fall within the criteria for
permissive exclusion found in section 1128(b)(1) is irrelevant. Travers v. Sullivan,
791 F. Supp. 1471
(E.D. Wash. 1992); Douglas Schram, R.Ph., DAB CR215 (1992), aff'd, DAB 1372
(1992); Boris
Lipovsky, M.D., DAB CR208 (1992), aff'd, DAB 1363 (1992); Greene.
Petitioner contends further that the proposed exclusion is punitive in nature
and not remedial. Petitioner
did not cite any basis for this contention. Petitioner apparently is referring
to the constitutional ban against
double jeopardy, as discussed in United States v. Halper, 490 U.S. 435 (1989).
See, Schram, DAB 1372 at
14-18. However, both Halper and Schram involved a federal conviction. Double
jeopardy is not
applicable in Petitioner's case, as Petitioner was convicted by a State court.
Petitioner contends moreover that the only way for the Secretary to evaluate
whether or not the conduct for
which she was excluded will occur again is not to exclude her but to allow her
to participate in Medicare
and Medicaid with "a monitor." P. Br. at 3. However, I do not have
the discretion to order such a remedy.
As I stated above, once I have determined that a petitioner's conviction is
for an offense related to the
delivery of an item or service under section 1128(a)(1), it is the mandate of
Congress that the petitioner be
excluded for five years. Social Security Act, sections 1128(a)(1), 1128(c)(3)(B).
Finally, Petitioner objects to the I.G.'s citation of the new regulations, noted
supra. With reference to
exclusions imposed pursuant to section 1128(a)(1) of the Act, the new regulations
do not affect the basis
for exclusion from what is required by the Act, nor do they alter the five-year
exclusion mandated by the
Act. Thus, the new regulations in no way substantively alter Petitioner's position
from what it was prior to
the new regulations' promulgation. Petitioner pled guilty to the criminal charges
against her on February 6,
1992. Consequently, the August 18, 1987 amendments to Section 1128 of the Act,
which instituted the
mandatory five-year minimum exclusion for program-related convictions, are applicable
to her case (Betsy
Chua, M.D., DAB CR76, aff'd, DAB 1204 (1990)), and the 1992 regulations have
no effect on this
statutory scheme.
CONCLUSION
Section 1128(a)(1) of the Act requires that Petitioner be excluded from Medicare
and Medicaid for a period
of at least five years, because of her conviction of a program-related criminal
offense. The I.G.'s five-year
exclusion is, therefore, sustained.
_________________________________
Joseph K. Riotto
Administrative Law Judge
1. The I.G. submitted a motion for summary disposition on February 8, 1993,
with attached exhibits. I
refer to the I.G.'s brief as I.G. Br. (at page). I refer to the I.G.'s exhibits
as I.G. Ex. (at page). On February
26, 1993, the I.G. submitted a signed copy of the Superior Court Information,
which he originally
submitted as I.G. Ex. 2. Attached to this exhibit were signed copies of Petitioner's
Waiver of Indictment
and the Felony Complaint in Petitioner's criminal case. In the absence of objection,
I am substituting the
I.G.'s February 26, 1993 submission in place of the original I.G. Ex. 2. As
the I.G. did not mark or
paginate his February 26, 1993 submission, I am marking the new I.G. Ex. 2 and
consecutively numbering
it as pages 1 - 7. Petitioner submitted her response, with one attached exhibit,
on March 2, 1993. I refer to
her brief as P. Br. (at page). I refer to her exhibit as P. Ex. 1 (at page).
Petitioner did not paginate her brief
or her exhibit. I have consecutively numbered Petitioner's brief as pages 1
- 4 and her exhibit as pages 1 -
13. The I.G. also submitted a reply to Petitioner's brief. I refer to it as
I.G. R. Br. (at page).