Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Larry E. Edwards, M.D., Petitioner,
- v. -
The Inspector General.
DATE: July 28, 1993
Docket No. C-93-024
Decision No. CR278
DECISION
By letter dated October 21, 1992, Larry E. Edwards, 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 him for a period of five years from participation in the Medicare program
and from participation in
the State health care programs mentioned in section 1128(h) of the Social Security
Act (Act). (Unless the
context indicates otherwise, I use the term "Medicaid" in this Decision
when referring to the State
programs.) The I.G. asserted that an exclusion of at least five years is mandatory
under sections 1128(a)(1)
and 1128(c)(3)(B) of the Act because Petitioner had been convicted of a criminal
offense related to the
delivery of an item or service under the Medicare and Medicaid programs.
Petitioner filed a timely request for review of the I.G.'s action. On November
30, 1992, I issued an Order
and Notice of Prehearing Conference. I instructed the parties that the prehearing
conference would be
conducted by telephone.
By letter dated December 4, 1992, Petitioner stated that he was unable to participate
in a telephone
prehearing conference without an attorney because he is hearing impaired. Petitioner
averred that he could
not afford the services of an attorney, and thus he had no choice but to withdraw
his hearing request.
This office subsequently provided Petitioner with the name and telephone number
of an organization in his
community which could make arrangements for Petitioner to have the use of a
special device which
permits hearing impaired individuals to participate in telephone conferences.
Petitioner declined this offer,
but said that he would like his case to be decided on written arguments and
documentary evidence, without
an in-person hearing. Petitioner indicated that, because of his hearing problem,
he did not want to be
subjected to the pressures of even a prehearing conference.
The I.G. did not object to waiving the prehearing conference and going forward
with a hearing based on
written arguments and documentary evidence. The I.G. subsequently filed a motion
for summary
disposition, accompanied by a supporting brief with one attachment and seven
exhibits. I have marked and
identified these exhibits as I.G. Ex. 1 through 7. 1/
Petitioner subsequently submitted a letter in which he set forth his position
in this case. He did not submit
any exhibit evidence with this document. Several weeks later, this office received
a document which
appeared to be a copy of a transcript of proceedings in the Connecticut Superior
Court captioned State of
Connecticut vs. Larry Edwards, M.D. This document was not accompanied by a cover
letter or other
identifying information. Petitioner subsequently indicated by telephone that
he wished to offer this
document as exhibit evidence. I have marked and identified this exhibit as P.
Ex. 1. In addition, Petitioner
requested additional time to submit supplemental arguments pertaining to this
document.
The I.G. did not object to Petitioner's request to file supplemental arguments,
and Petitioner subsequently
submitted a letter in which he set forth his arguments pertaining to P. Ex.
1. The I.G. declined to file a
reply brief.
Petitioner has not contested the authenticity of the seven exhibits submitted
by the I.G. I admit into
evidence I.G. Ex. 1, and 4 through 7. I reject I.G. Ex. 2 and 3 because they
are the I.G.'s Notice letter and
Petitioner's request for a hearing and are already in the record. In my prehearing
order, I directed the
parties not to file such duplicative material as exhibits. The I.G. has not
contested the authenticity of the
one exhibit submitted by Petitioner, and I am admitting this exhibit into evidence.
I have considered the parties' written arguments and supporting exhibits, and
the applicable laws and
regulations. I conclude 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). I conclude
also that Petitioner is subject to
the federal minimum mandatory provisions of sections 1128(a)(1) and 1128(c)(3)(B)
of the Act, and I
affirm the I.G.'s determination to exclude Petitioner from participation in
the Medicare and Medicaid
programs 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.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At all times relevant to this case, Petitioner was a licensed medical doctor
in the State of Connecticut.
I.G. Ex. 5 at page 4.
2. On September 27, 1990, a Connecticut State prosecutor filed with the Connecticut
Superior Court an
application for a warrant for the arrest of Petitioner. The arrest warrant application
was based on an
affidavit which was signed and attested to by an inspector with the Connecticut
Medicaid Fraud Control
Unit. I.G. Ex. 5.
3. The affidavit accompanying the arrest warrant application alleged that an
investigation of Petitioner
revealed that during the period from June 12, 1984 through November 10, 1988,
Petitioner submitted or
caused to be submitted 337 false claims on behalf of seven Medicaid recipients
for which Petitioner
received an overpayment in the amount of $3071.50. I.G. Ex. 5 at page 25.
4. The affidavit accompanying the arrest warrant application alleged also that
during the period October
10, 1984 through February 27, 1989, Petitioner submitted or caused to be submitted
569 false claims on
behalf of 10 Medicare beneficiaries for which Petitioner received an overpayment
of $6838.78. I.G. Ex. 5
at page 37.
5. The affidavit accompanying the arrest warrant asserted that, based on Petitioner's
alleged offenses, there
was probable cause to charge Petitioner with two counts of larceny in the first
degree by defrauding a
public community. I.G. Ex. 5 at pages 37 - 38.
6. On September 27, 1990, the Connecticut State Attorney filed an Information
in the Connecticut
Superior Court charging Petitioner with two counts of larceny in the first degree
by defrauding a public
community. I.G. Ex. 4 at page 1.
7. Pursuant to plea negotiations between Petitioner and the Connecticut State
Attorney, the Connecticut
State Attorney subsequently filed a substituted Information charging Petitioner
with two counts of larceny
in the fourth degree. The first count involved false claims submitted to the
Medicare program and the
second count involved false claims submitted to the Medicaid program. I.G. Ex.
4 at page 2, I.G. Ex. 5; P.
Ex. 1.
8. As part of the plea agreement, Petitioner filed an application for accelerated
rehabilitation in relation to
count one of the substituted Information and he pled nolo contendere to count
two of the substituted
Information. P. Ex. 1.
9. On July 1, 1992, the Connecticut Superior Court granted Petitioner's application
for accelerated
rehabilitation on count one of larceny in the fourth degree. The court placed
Petitioner on probation,
pending notification that Petitioner had fully paid restitution to the Medicare
program in the amount of
$6838.78. I.G. Ex. 7; P. Ex. 1.
10. On July 1, 1992, the Connecticut Superior Court entered a judgment of guilty
on count two of larceny
in the fourth degree, based on its acceptance of Petitioner's nolo contendere
plea. The court imposed an
unconditional discharge based on the representation that Petitioner paid restitution
to the Medicaid program
in the amount of $3071.50. I.G. Ex. 7; P. Ex. 1.
11. The Secretary of HHS has delegated to the I.G. the authority to determine
and impose exclusions
pursuant to section 1128 of the Act. 48 Fed. Reg. 21662 (1983).
12. Petitioner's nolo contendere plea, and the court's acceptance of that plea,
constitutes a "conviction"
within the meaning of the mandatory exclusion provisions of the Act.
13. Petitioner was convicted of a criminal offense "related to the delivery
of an item or service" under the
Medicaid program, within the meaning of section 1128(a) (1) of the Act.
14. A defendant in a criminal proceeding does not have to be advised of all
the possible consequences,
such as temporarily being barred from government reimbursement for his professional
services, which may
flow from his nolo contendere plea.
15. Sections 1128(a)(1) and 1128(i) of the Act, read together, provide adequate
notice of the consequences
which could result from conviction of an offense related to the delivery of
an item or service under the
Medicaid program.
16. Petitioner may not utilize this administrative proceeding to collaterally
attack his criminal conviction
by seeking to show that he did not do the act charged, or that there was no
criminal intent.
17. Pursuant to section 1128(a)(1) of the Act, the I.G. is required to exclude
Petitioner from participating
in the Medicare and Medicaid programs.
18. The minimum mandatory period for exclusions pursuant to section 1128(a)(1) of the Act is five years.
19. The I.G. properly excluded Petitioner from participation in the Medicare
and Medicaid programs for a
period of five years pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the
Act.
20. Neither the I.G. nor the administrative law judge has the authority to
reduce the five-year minimum
exclusion mandated by sections 1128(a)(1) and 1128(c)(3)(B) of the Act.
PETITIONER'S ARGUMENT
Petitioner does not dispute that he was convicted of a criminal offense; nor
does he dispute that the offense
underlying his conviction was related to the delivery of an item or service
within the meaning of section
1128(a)(1) of the Act. Petitioner's central argument is that he should not be
subject to an exclusion under
section 1128(a)(1) because his civil rights were violated at the time he entered
into his plea agreement.
Petitioner argues that his civil rights were violated because "the Judge
who presided over the case
encouraged me, as did my Attorney, to make a plea of nol[o] contendere for the
Medicaid charge not
knowing that if I did that I would be excluded from Medicaid and Medicare for
five years." Petitioner's
April 7, 1993 Response Letter. Petitioner asserts that he has a right to be
tried under the law with a judge
and an attorney who know the law.
Petitioner asserts also that the Medicare and Medicaid billing systems are
"unclear, inconsistent and
arbitrary." Petitioner's November 23, 1992 Hearing Request. He contends
that he made good faith efforts
to verify what procedure code he should use in completing his claim forms, but
that members of the staff of
the Medicaid program provided him with incorrect information.
DISCUSSION
The evidence adduced by the I.G. and not disputed by Petitioner amply demonstrates
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. For this reason, Petitioner's five-year
exclusion is required as a
matter of law.
The first statutory requirement for mandatory exclusion pursuant to section
1128(a)(1) of the Act is that the
person to be excluded must have been convicted of a criminal offense under federal
or State law. Section
1128(i)(3) of the Act expressly provides that when a person enters a plea of
nolo contendere to a criminal
charge and the court accepts such plea, the individual will be regarded as having
been "convicted" within
the meaning of the mandatory exclusion provisions of the Act.
In the case at hand, the undisputed evidence establishes that the State of
Connecticut charged Petitioner
with two counts of larceny in the fourth degree. Finding 7. Petitioner pled
nolo contendere to the second
count of larceny in the fourth degree. Finding 8. 2/ Additionally, the undisputed
evidence establishes that
the court found Petitioner guilty of the offense, based on his plea. Finding
10. The evidence of record
shows that Petitioner pled nolo contendere in order to dispose of the criminal
charge against him, and the
court disposed of the case based on its receipt of Petitioner's nolo contendere
plea. That transaction
amounts to "acceptance" of a plea within the meaning of section 1128(i)(3)
of the Act, and Petitioner was
therefore "convicted" of a criminal offense within the meaning of
that provision. See Carlos E. Zamora,
M.D., DAB CR22 (1989), aff'd DAB 1104 (1989).
The statute further requires that the criminal offense in question must have
been "program-related," i.e.,
related to the delivery of items or services under Medicaid or Medicare. It
is well-established in decisions
of the Departmental Appeals Board that filing false Medicare or Medicaid claims
relates to the delivery of
items or services under such programs and clearly constitutes program-related
misconduct, sufficient to
mandate exclusion. Jack W. Greene, DAB CR19 (1989), aff'd, DAB 1078 (1989),
aff'd sub nom. Greene
v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990). I find that the offense
underlying Petitioner's
criminal conviction -- intentionally billing Medicaid for services in excess
of those actually provided --
likewise constitutes criminal fraud related to the delivery of Medicaid services.
Petitioner asserts that he did not intend to defraud Medicaid. However, under
section 1128(a) of the Act,
proof that an appropriate criminal conviction has occurred ends the inquiry
as to whether mandatory
exclusion is called for; the intent or state of mind of the individual committing
the crime is not material.
DeWayne Franzen, DAB 1165 (1990). Also, these administrative proceedings cannot
be used to attack the
substantive decision arrived at by the court. In sum, the law does not permit
HHS to look behind the fact
of conviction. When an individual has been convicted of a crime encompassed
by section 1128(a)(1),
exclusion is mandatory; such individual's subsequent claim of innocence will
not be considered. Russell E.
Baisley and Patricia Mary Baisley, DAB CR128 (1991).
Petitioner argues also that he should not be subject to an exclusion under
section 1128(a)(1) because his
attorney, and also the judge in the underlying criminal proceeding, encouraged
him to plead nolo
contendere without informing him that he would be excluded from the Medicare
and Medicaid programs as
a result of his conviction. Petitioner asserts that he was denied his civil
rights during the course of the
criminal proceedings because the judge and his attorney did not know the law,
and, as a result, he was
prejudiced because he was not fully advised of the consequences of entering
a nolo contendere plea.
This argument is essentially the same as an argument made by a petitioner in
the case Douglas Schram,
R.Ph., DAB CR215 (1992), aff'd DAB 1372 (1992). In that case, the petitioner
argued that his due process
rights were violated because he was deprived of the notice necessary to understand
the possible
consequences of his guilty plea. The petitioner asserted that had he known of
the consequences of his plea,
he would have pled differently. I rejected this argument. In rejecting this
argument, I cited U.S. v. Suter,
755 F.2d 523, 525 (7th Cir. 1985) for the proposition that a defendant in a
criminal proceeding does not
have to be advised of all the possible consequences, such as temporarily being
barred from government
reimbursement for his professional services, which may flow from his plea of
guilty. DAB CR215, at 6.
An appellate panel of the Departmental Appeals Board affirmed my decision, finding
that I "correctly held
that, as a defendant, Petitioner did not have to be advised of all the possible
consequences of his plea."
DAB 1372, at 11. The appellate panel also went on to say:
More importantly, Petitioner was on notice that his guilty plea could lead
to a mandatory
exclusion. Sections 1128(a)(1) and 1128(i), read together, provide adequate
notice of the consequences
which could result from conviction of a program-related offense. If Petitioner's
complaint is with the
actions of the [State] prosecutor . . . the proper forum for this complaint
is . . . [the] State court.
DAB 1372, at 12. The Departmental Appeals Board has held in other cases that
arguments about the
process leading to a Petitioner's criminal conviction are completely irrelevant
to an exclusion proceeding.
Charles W. Wheeler, DAB 1123 (1990). In view of the foregoing, Petitioner's
argument that the I.G. is
precluded from imposing an exclusion in this case because Petitioner did not
know that his conviction
would result in an exclusion is without merit.
CONCLUSION
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act require that Petitioner be
excluded from the Medicare
and Medicaid programs for a period of at least five years because of his conviction
of a program-related
criminal offense. Neither the I.G. nor the judge is authorized to reduce the
five-year minimum mandatory
period of exclusion. Jack W. Greene, DAB CR19, at 12 - 14 (1989).
The I.G.'s five-year exclusion is, therefore, sustained.
______________________________
Joseph K. Riotto
Administrative Law Judge
1. In my February 1, 1993 prehearing order I instructed the parties that copies
of administrative law
judge and Departmental Appeals Board appellate panel decisions or published
court decisions should be
included not as exhibits, but as attachments, if at all. Attached to the I.G.'s
brief is a copy of the decision
Thelma Walley, DAB 1367 (1992). Pursuant to the instructions contained in my
prehearing order, the I.G.
does not offer this document as an exhibit, but instead refers to it as "Attachment
A."
2. The evidence establishes that Petitioner applied for accelerated rehabilitation
with respect to the first
count of larceny in the fourth degree and that the court granted Petitioner's
application for accelerated
rehabilitation on this count. Findings 8 and 9. The I.G. did not argue that
the court's disposition of the first
count of larceny in the fourth degree constitutes a conviction within the meaning
of the Act, and I do not
address that issue in this Decision.