Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Edna Copp, Petitioner,
- v. -
The Inspector General.
DATE: June 11, 1993Docket No. C-93-044Decision No. CR271
DECISION
On January 12, 1993, the Inspector General (I.G.) notified Petitioner that
she was being excluded from
participation in the Medicare, Medicaid, Maternal and Child Health Services
Block Grant and Block Grants
to States for Social Services programs. 1/ The I.G. told Petitioner that she
was being excluded under
section 1128(a)(1) of the Social Security Act (Act), based on her conviction
of a criminal offense related
to the delivery of an item or service under the Texas Medicaid program. The
I.G. told Petitioner that she
was being excluded for the minimum period required by section 1128(a)(1) of
the Act.
The case was assigned originally to Administrative Law Judge Joseph K. Riotto
for a hearing and a
decision. He held a prehearing conference at which Petitioner did not dispute
that she had been convicted
of a criminal offense within the meaning of section 1128(i) of the Act. However,
she did not agree that the
I.G. had authority to exclude her pursuant to section 1128(a)(1) of the Act.
The I.G. requested the
opportunity to file a motion for summary disposition, and Judge Riotto established
a schedule for the I.G.'s
motion, for a response by Petitioner, and for a reply by the I.G. Subsequently,
the case was assigned to me.
The I.G. filed a motion for summary disposition which Petitioner opposed. Petitioner
did not dispute any
of the facts asserted by the I.G. but argued that the I.G. nonetheless lacked
authority to exclude her. I have
carefully considered the undisputed material facts of this case, the parties'
arguments, and applicable law. I
conclude that Petitioner was convicted of a criminal offense within the meaning
of section 1128(a)(1) of
the Act, and the I.G. was required to exclude her for at least five years. Therefore,
I sustain the exclusion
which the I.G. imposed and directed against Petitioner.
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
1. Petitioner is a licensed vocational nurse. I.G. Ex. 2 at 1. 2/
2. At all relevant times, Petitioner was employed as Assistant Director of
Nursing at Coastal Health Care
Center in Port Lavaca, Texas, a nursing home. I.G. Ex. 2, 6, 9, 10 at 1 - 2.
3. On September 6, 1991, Petitioner was indicted under Texas law for the criminal
offense of unlawfully,
intentionally, and knowingly possessing a controlled substance (pentazocine,
also known by the brand
name "Talwin") by fraud, misrepresentation, forgery, deception and
subterfuge. I.G. Ex. 1 at 1 - 2.
4. Petitioner was specifically charged with making a false telephonic request,
on or about January 3, 1991,
to refill a prescription for Talwin on behalf of another individual (whom I
shall refer to as MH) with the
intent to unlawfully possess Talwin. I.G. Ex. 1 at 2.
5. On January 3, 1991, MH was a resident at Coastal Health Care Center. I.G. Ex. 2 at 2.
6. On January 3, 1991, MH was a recipient of benefits under the Texas Medicaid
program. I.G. Ex. 5, 10
at 1 - 2.
7. MH's stay at Coastal Health Care Center on January 3, 1991 was an item or
service which was
reimbursed by the Texas Medicaid program. I.G. Ex. 5, 6, 10 at 1 - 2.
8. On January 2, 1992, Petitioner pleaded guilty to the criminal charges against
her under an arrangement
wherein an adjudication of guilt would be deferred, subject to her satisfactory
completion of a term of
probation, payment of restitution, a fine, court costs, and completion of 180
hours of community service.
I.G. Ex. 3 at 1 - 5.
9. Petitioner was convicted of a criminal offense, within the meaning of section
1128(i)(4) of the Act.
Finding 8; Social Security Act, section 1128(i)(4).
10. 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 1 - 9; Social
Security Act, section 1128(a)(1).
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 (1983).
12. 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).
13. The exclusion imposed and directed against Petitioner by the I.G. is mandated
by law. Findings 1 - 12;
Social Security Act, sections 1128(a)(1) and 1128(c)(3)(B).
ANALYSIS
There are no disputed material facts in this case. Petitioner does not deny
that she was convicted, under
Texas law, of the crime of unlawful possession of a controlled substance, Talwin.
Petitioner does not deny
that she was convicted of unlawfully obtaining Talwin by falsely representing
to a pharmacy that she was
refilling a prescription for Talwin on behalf of a resident at the nursing home
at which she was employed.
Petitioner does not dispute that the resident in question, MH, was a Medicaid
recipient and that her stay at
the nursing home was reimbursed by the Texas Medicaid program. Petitioner admits
that her crime was
related to MH's Medicaid-reimbursed stay at the nursing home, and hence, was
related to the delivery of an
item or service under Medicaid within the meaning of section 1128(a)(1) of the
Act. P. Br. 1. 3/
Petitioner's only argument is that the I.G. has not proven that the I.G. was
aware of the underlying facts of
the case when the I.G. excluded Petitioner. 4/ Therefore, according to Petitioner,
the I.G. has not
demonstrated in the motion for summary disposition that the I.G. had authority
to exclude Petitioner under
section 1128(a)(1). P. Br. 2 - 3.
The undisputed material facts of this case establish a basis for excluding
Petitioner pursuant to section
1128(a)(1) of the Act. The misrepresentations of fact made by Petitioner in
order to obtain Talwin
unlawfully were dependent on the facts that MH, a Medicaid recipient, was a
patient at the nursing home at
which Petitioner was employed, and that MH had in the past been prescribed Talwin
as an ancillary aspect
of her stay in that nursing home. Petitioner's crime was thus made possible
by MH's status as a Medicaid
recipient who was receiving a Medicaid-reimbursed stay at the nursing home at
the time the crime was
committed. Thelma Walley, DAB 1367 (1992); Thelma Walley, DAB CR255 (1993).
Petitioner's
conviction therefore was related to the delivery of an item or service under
the Texas Medicaid program.
I do not agree with Petitioner's contention that the I.G. must prove that all
facts material to this case were
known to the I.G. at the time of the exclusion. The hearing in this case is
not an appellate review of the
I.G.'s exclusion determination. It is a de novo hearing, at which the I.G. must
prove that facts exist which
provide a basis for the exclusion. The date on which those facts became known
to the I.G. is not material,
so long as the I.G. can prove at the hearing that the exclusion is authorized
by law.
Furthermore, section 1128(a)(1) of the Act establishes that in any exclusion
case brought under that section
th
issue is whether a party has been convicted of a criminal offense related to
the delivery of an item or
service under Medicare or Medicaid, and not whether the I.G. can prove that
the I.G. knew, at a particular
date, whether the party had been convicted of such an offense. The Act mandates
exclusion of individuals
convicted of program-related offenses. Thus, the ultimate issue in any case
under section 1128(a)(1) is
whether the facts which mandate an exclusion are present. Whether the I.G knew
of those facts as of a
particular date is irrelevant. 5/
However, it is apparent from the undisputed material facts of this case and
the exhibits offered by the I.G.
that the facts which the I.G. now adduces, and which Petitioner does not now
dispute, were known to the
I.G. as of the date that the I.G. excluded Petitioner. The notice of exclusion
which the I.G. sent to
Petitioner refers to Petitioner's conviction. The documents on which that conviction
was predicated
specifically recite that Petitioner had obtained Talwin by making a false telephone
request for the
medication on behalf of MH. Finding 4. Petitioner has not asserted that the
notice of exclusion is untrue,
or that it is not based on facts which were in the possession of the I.G. at
the time Petitioner was excluded.
CONCLUSION
Based on the undisputed material facts 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. Unless the context indicates otherwise, I use the term "Medicaid"
hereafter to represent all programs
other than Medicare from which Petitioner was excluded.
2. With the motion for summary disposition the I.G. submitted nine exhibits
and the affidavit of Sharon
Thompson. I refer to the I.G.'s exhibits as I.G. Ex. (number) at (page). In
the absence of objection I am
admitting the I.G.'s nine exhibits into evidence. Also, I am admitting the affidavit
of Sharon Thompson,
which I am marking as I.G. Ex. 10. Petitioner submitted six exhibits with her
response. I refer to
Petitioner's exhibits as P. Ex. (number) at (page). In the absence of objection
I am admitting Petitioner's
six exhibits into evidence. I refer to the I.G.'s motion for summary disposition
as I.G. Br. (page). I refer to
Petitioner's response as P. Br. (page). I refer to the I.G.'s reply as I.G.
R. Br. (page).
3. The I.G. asserts also that the prescription for the controlled substance
that Petitioner obtained
unlawfully, Talwin, was reimbursed by the Texas Medicaid program, and Petitioner
does not dispute this
assertion. The I.G. contends that the Talwin which Petitioner obtained unlawfully,
therefore, was a
Medicaid item or service. Petitioner does not dispute this assertion either.
It is unnecessary for me to find
that the Talwin which Petitioner obtained unlawfully was a Medicaid item or
service in order to find that
Petitioner was convicted of a program-related crime within the meaning of section
1128(a)(1). The
requisite nexus is established by virtue of MH's Medicaid-reimbursed stay at
the nursing home. Therefore,
I do not make findings on the issue of whether the Talwin which Petitioner obtained
unlawfully is a
Medicaid item or service. I note, however, that if I had made findings, it is
likely that I would have found
that the Talwin was not a Medicaid item or service. The evidence submitted by
the I.G. shows that the
prescription for Talwin may not have been renewed by the physician prescribing
it. See, I.G. Ex. 2.
Petitioner made a false representation that Talwin had been prescribed, in order
to obtain it for her own
use. Furthermore, the pharmacy may have already known that a false representation
had been made when
it submitted a reimbursement claim to Medicaid for the Talwin, and also the
Texas Medicaid Fraud Control
Unit may have been aware that the representation was false at the time the pharmacy
submitted the claim.
My point is not that there was complicity or wrongdoing by the pharmacy, but
that the Talwin which
Petitioner obtained under false pretenses might not be a "Medicaid item
or service."
4. Petitioner has characterized her exclusion as a license suspension. P. Br.
2 - 3. In fact, the I.G. has
not suspended or otherwise taken away from Petitioner any license to practice
health care. Rather, the I.G.
has excluded Petitioner from participating in the Medicare and Medicaid programs.
The effect of this
exclusion is that Petitioner may not claim reimbursement for any items or services
she furnishes to the
Medicare or Medicaid programs or their beneficiaries and recipients during the
period of her exclusion.
See I.G.'s January 12, 1993 notice of exclusion at 1 - 2.
5. The I.G. would not exclude a party under section 1128(a)(1) unless the I.G.
thought that facts existed
which justified such an exclusion. The I.G. is not excluding parties randomly.