Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Zenaida P. Doiranlis, M.D., Petitioner,
- v. -
The Inspector General
DATE: May 27, 1993
Docket No. C-93-039
Decision No. CR267
DECISION
All proceedings in this exclusion case are governed by section 1128 of the
Social Security Act (Act), its
implementing regulations, and certain delegations of authority issued by the
Secretary of the United States
Department of Health and Human Services (DHHS). 1/
Background
Zenaida P. Doiranlis (Petitioner) requested a hearing before an Administrative
Law Judge to contest the
November 16, 1992 letter (Notice) sent to her by the Inspector General (I.G.)
of DHHS, which notified
Petitioner that she was excluded from participation in Medicare and federally
funded State health care
programs for a period of five years. 2/
After I conducted a prehearing conference in this case on January 26, 1993,
the I.G. filed a motion for
summary disposition, along with a supporting brief and eight exhibits. Petitioner
filed a response, along
with 32 exhibits. There were no objections to the exhibits submitted, and I
hereby admit these exhibits into
the record as evidence.
Arguments of the parties
The I.G. argues that Petitioner is subject to a five-year exclusion on the
grounds that Petitioner was
convicted in the Bronx County Supreme Court (State Court) of four counts of
offering a false instrument
for filing in the second degree and alleges that the conviction related to the
Medicaid program. The I.G.
argues further that the exclusion of Petitioner from the Medicare and Medicaid
programs for a minimum
period of five years is mandated by sections 1128(a)(1) and 1128(c)(3)(B) of
the Act.
Petitioner alleges that she was unjustly charged by the State of New York with
crimes she did not commit
and that she had no intent to defraud the State of New York. She argues that
her conviction is unjust, her
conviction should be overturned, and that her five-year exclusion by the I.G.
should be lifted. In effect,
Petitioner argues also that the many affidavits and letters attesting to the
quality of her character require a
lifting of or a reduction in this federal exclusion.
Summary of this Decision
I have considered the evidence of record, the parties' arguments, and the applicable
law. I conclude that
there are no material questions of fact in dispute, that this case can be decided
on the basis of the
documentary evidence already submitted by the parties (in lieu of an in-person
hearing), and that the five-
year exclusion imposed and directed by the I.G. against Petitioner is mandated
by federal law. I do not
have authority to overturn Petitioner's State Court conviction and this section
1128(a) exclusion cannot be
waived or reduced by the I.G. or me in this case. Accordingly, I enter summary
disposition in favor of the
I.G.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Having considered the entire record, the arguments, and the submissions of
the parties, and being advised
fully, I make the following Findings of Fact and Conclusions of Law (FFCL):
1. Petitioner is a physician, who, at the times relevant to this case, was
enrolled as a provider in the New
York State Medicaid program. I.G. Ex. 1, at 4.
2. On March 23, 1990, the New York State Office of the Deputy Assistant Attorney
General for Medicaid
Fraud Control filed in the Supreme Court, Bronx County, New York (State Court),
an indictment charging
Petitioner with one count of grand larceny in the third degree and 52 counts
of offering a false instrument
for filing in the first degree. I.G. Ex. 1.
3. On November 26, 1991, Petitioner pled guilty to counts 2, 3, 9, and 42 of
the indictment, which were to
the lesser included offenses of offering a false instrument for filing in the
second degree. I.G. Ex. 3, at 6.
4. At her plea allocution on November 26, 1991, Petitioner admitted to Judge
Steven Lloyd Barrett of the
State Court -- as to counts 2, 3, 9, and 42 -- that she had caused claims for
Medicaid reimbursement which
contained false information to be filed with Computer Science Corporation, a
fiscal agent for the New
York State Medicaid program. I.G. Ex. 3.
5. The State Court "accepted" Petitioner's guilty plea, within the
meaning of section 1128(i) of the Act.
I.G. Ex. 3.
6. Petitioner was "convicted" of a criminal offense, within the meaning
of sections 1128(i) and 1128(a)(1)
of the Act. FFCL 3, 5.
7. The criminal offense of which Petitioner was convicted "related to
the delivery of an item or service"
under the Medicaid program, within the meaning of section 1128 (a)(1) of the
Act. FFCL 1 - 6.
8. The Secretary of DHHS (Secretary) delegated to the I.G. the authority to
determine, impose, and direct
federal exclusions pursuant to section 1128 of the Act. 48 Fed. Reg. 21,662
(1983).
9. Sections 1128(a)(1) and 1128(c)(3)(B) of the Act require the I.G. to impose
and direct an exclusion for
a minimum period of five years against any petitioner who has been "convicted"
of a criminal offense
"related to the delivery of an item or service" under the Medicare
or Medicaid program, within the meaning
of those sections of the Act.
10. The I.G. was required to impose and direct this federal exclusion against
Petitioner for at least the
minimum period of five years because she was "convicted" of a criminal
offense "related to the delivery of
an item or service" under the Medicaid program, within the meaning of sections
1128(a)(1) and
1128(c)(3)(B) of the Act.
11. If the I.G. had imposed and directed an exclusion for a period greater
than five years in this case, I
would have authority to determine whether the period beyond the five year minimum
was reasonable or
excessive under the facts of the case.
12. I have no authority to overturn Petitioner's State Court conviction; this
is not the proper forum for
attacking her conviction.
13. This five-year exclusion imposed and directed by the I.G. against Petitioner
is appropriate and federal
law and regulations provide that the exclusion cannot be waived or reduced by
the I.G. or by me, under the
established facts. FFCL 1 - 12; Act, sections 1128(a)(1) and 1128(c)(3)(B).
DISCUSSION
I. Summary disposition is appropriate in this case.
Summary disposition is appropriate where there are no material facts in issue.
See Fed. R. Civ. P. 56.
Section 1128 requires the I.G. to prove by a preponderance of the evidence the
material facts needed to
establish a federal exclusion. In order to impose and direct an exclusion under
section 1128(a)(1) of the
Act, the I.G. must prove that there was (1) a "conviction" and (2)
that the conviction was "related to the
delivery of an item or service" under Medicare or Medicaid.
Here, the I.G. proved the material facts required by section 1128(a)(1) of
the Act through the documentary
evidence submitted in support of his motion for summary disposition. Moreover,
while Petitioner alleges
that she was not guilty as charged, she did not dispute the documentary evidence
which establishes the
material facts in this case.
Accordingly, an in-person hearing is not required and summary disposition is appropriate.
II. By reason of federal law and regulations, Petitioner must be excluded for
a minimum period of five
years.
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that a petitioner
be excluded from the Medicare
and Medicaid programs for a minimum period of five years if the I.G. proves
that such petitioner was (1)
"convicted" of a criminal offense which was (2) "related to the
delivery of an item or service" under
Medicare or Medicaid.
A. Petitioner was "convicted."
In this case, Petitioner, a medical doctor, was charged by New York State with
filing false Medicaid
claims. FFCL 1 - 4. Petitioner pled guilty to "offering a false instrument
for filing" in the second degree in
the Bronx Supreme Court. FFCL 3. Judge Steven Lloyd Barrett of the State Court
accepted her guilty plea
and she was sentenced to restitution and conditionally discharged. FFCL 5; I.G.
Exs. 2 - 5; P. Exs. 11, 17,
18, 26 - 32.
Section 1128(i)(3) of the Act defines "convicted" to include a plea
of guilty to a criminal charge which has
been accepted by a court. When the State Court accepted her guilty plea, Petitioner
became "convicted,"
within the meaning of sections 1128(i) and 1128(a)(1) of the Act.
B. Petitioner was convicted of a criminal offense "related to the delivery
of an item or service" under the
Medicaid program.
Petitioner asserts that she did not commit a crime related to the delivery
of an item or service under
Medicaid because "there was no crime." P. Brief, at 2. However, Petitioner's
assertions are contrary to the
evidence in the record in this case. The I.G. has proven that Petitioner pled
guilty to submitting claims to
Medicaid for services which she did not perform. FFCL 1 - 7. She acknowledged
at her plea allocution
that she had billed for either a muscle or range of motion test, or a comprehensive
examination, when she
knew that she had not provided such services. I.G. Ex. 3, at 22 - 35. In sum,
Petitioner admitted in the
State court that she knowingly filed Medicaid claims for services not performed
as claimed. Id.
The criminal offense of filing false Medicaid claims is directly related to
the delivery of an item or service
under Medicaid. Jack W. Greene, DAB 1078, at 7 (1989), aff'd sub nom., Greene
v. Sullivan, 731 F. Supp.
835 (E.D. Tenn. 1990). Thus, Petitioner's conviction was "related to the
delivery of an item or service"
under Medicaid, within the meaning of section 1128(a)(1) of the Act. Charles
W. Wheeler, DAB 1123
(1990); David S. Muransky, D.C., DAB 1227 (1991). See, also, Thelma Walley,
DAB 1367, at 9 (1992).
C. Under the established facts in this case, federal law will not allow a waiver
or reduction of the five-year
exclusion imposed by the I.G.
Many people, including Petitioner's fellow medical doctors, have attested to
her character, ability, and
compassion. They ask that Petitioner be given a second chance and her exclusion
be terminated by me
because she is innocent of the charges made against her. Petitioner argues that
she was not guilty and that
her good character requires a lifting, waiver, or reduction in the federal exclusion
imposed by the I.G.
Section 1128 does not allow me or the I.G. to reduce or waive a five-year exclusion
imposed by the I.G.
under section 1128(a)(1) of the Act. DeWayne Franzen, DAB 1165 (1990). 3/ 4/
Petitioner argues also that her conviction should be overturned because she
was pressured into pleading
guilty when, in fact, she was not guilty. P. Brief, at 6. The transcript of
her plea allocution indicates that
she confessed her guilt to Judge Barrett freely and knowingly. I.G. Ex. 3. Even
if she did not, this is not
the forum for resolving her guilt or innocence to criminal charges. I am not
authorized to consider whether
she should have been convicted.
The evidence of record in this case establishes Petitioner's guilt. There is
no persuasive evidence that
Petitioner was not guilty. Even if there was persuasive evidence that Petitioner
was not guilty, this is not
the proper forum for attacking the State Court conviction. I have no authority
to overturn Petitioner's
conviction. Douglas Schram, R.Ph., DAB CR215 (1992), aff'd, DAB 1372 (1992);
Thelma Walley, DAB
1367, at 8, n.7 (1992); Peter J. Edmonson, DAB 1330 (1992).
CONCLUSION
Based on the law and the evidence, I conclude that the five-year exclusion imposed
and directed against
Petitioner by the I.G. was required by federal law and regulations and cannot
be lifted, waived, or reduced.
Charles E. Stratton
Administrative Law Judge
1. Section 1128 of the Act is codified at 42 U.S.C. 1320a-7. The implementing
regulations are codified
at 42 C.F.R. 1001.1 to 1001.3005 and 1005.1 to 1005.23. Pertinent delegations
of authority are cited
later in this decision.
2. "State health care program" is defined by section 1128(h) of the
Act to include three types of
federally assisted health care programs, including Medicaid. I use the term
"Medicaid" in this decision to
represent all State health care programs from which Petitioner is excluded.
42 U.S.C. 1320a-7(h).
3. Section 1128(c)(3)(B) of the Act provides for a waiver upon the request
of a State where a petitioner
is the "sole community physician" or "sole source of specialized
services in a community." There has been
no request for a waiver by a State in this case.
4. It should be noted that the I.G. has taken the position in other cases that
while a federal exclusion
prevents a Petitioner from submitting claims for reimbursement to Medicare and
Medicaid, a Petitioner
may continue to treat Medicare and Medicaid patients free of charge (so long
as the federal exclusion is
disclosed to the patients, the Petitioner is duly licensed in that State, and
the conviction did not relate to
patient abuse or neglect).