DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of: Charles W. Wheeler, Petitioner,
- v. -
The Inspector General.
DATE: June 8, 1989
Docket No. C-61
DECISION AND ORDER
The Petitioner requested a hearing to contest the Inspector General's (I.G.'s)
determination to exclude him
from participation in Medicare and to direct that the Petitioner be excluded
from participation in State
health care programs (e.g., Medicaid), for a period of five years. This Decision
and Order resolves this
case on the basis of written briefs and a stipulated record.
I find no merit in the numerous arguments raised by the Petitioner and I hereby
deny the Petitioner's
motion to dismiss. I conclude that the I.G. was required under federal law to
exclude the Petitioner from
Medicare, and to direct his exclusion from Medicaid, for five years.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute.
This case is governed by section 1128 of the Social Security Act (Act), codified
at 42 U.S.C. 1320a-7
(West U.S.C.A. Supp., 1988). Section 1128(a) of the Act, headed "Mandatory
Exclusion," provides for the
exclusion from Medicare, and a directive to the State to exclude from State
health care programs, any
individual who is "convicted of a criminal offense related to the delivery
of an item or service" under the
Medicare or Medicaid programs. Section 1128(c)(3)(B) provides that the period
of such exclusion shall be
for a minimum of five years.
The term "convicted" is defined in section 1128(i) to include "when
a judgment of conviction has been
entered against the physician or individual by a Federal, State, or local court,"
or when a plea of guilty or
nolo contendere has been "accepted by a Federal, State, or local court."
(Emphasis added.)
While section 1128(a) of the Act provides for a minimum five-year mandatory
exclusion for (1)
convictions of program-related crimes and (2) convictions relating to patient
abuse, section 1128(b) of the
Act provides for the permissive exclusion of "individuals and other entities"
for twelve types of other
convictions, infractions, or undesirable behavior, such as convictions relating
to fraud, license revocation,
or failure to supply payment information. The Act does not prescribe a minimum
period of exclusion in
the case of a permissive exclusion.
II. The Federal Regulations.
The governing federal regulations (Regulations) are found in 42 C.F.R. Parts
498, 1001, and 1002 (1987).
Part 498 governs the procedural aspects of this exclusion and Parts 1001 and
1002 govern the substantive
aspects.
In accordance with section 498.5(i), a practitioner, provider, or supplier
who has been excluded from
program coverage is "entitled to a hearing before an ALJ (Administrative
Law Judge)." Pursuant to section
1001.128, an individual who has been excluded from participation has a right
to request a hearing before
an ALJ on the issues of whether: (1) he or she was, in fact, convicted; (2)
the conviction was related to the
delivery of an item or service under Medicare or Medicaid; and (3) the length
of the exclusion is
reasonable.
Section 1001.123(a) requires the I.G. to send written notice of his determination
to exclude an individual or
entity when he has "conclusive information" that the individual or
entity has been convicted of a crime
related to the delivery of an item or service under Medicare or Medicaid.
BACKGROUND
By letter dated September 30, 1988, the I.G. notified the Petitioner that,
as a result of his conviction of a
criminal offense related to the delivery of an item or service under Medicaid,
he would be excluded from
participation in Medicare and Medicaid for a mandatory five year period, commencing
20 days from the
date of the Notice. The I.G.'s basis for the exclusion here was the Petitioner's
guilty plea and conviction in
the Circuit Courts of Mercer and Fayette Counties, West Virginia, of criminal
offenses related to the
delivery of an item or service under Medicaid.
On October 18, 1988, the Petitioner and Petitioner Todd timely filed a joint
request for hearing on the I.G.'s
determination. I held a prehearing telephone conference call on December 7,
1988, at which I determined
that the issues raised by the Petitioner's hearing request were primarily legal
issues, which could be further
developed by the parties in written briefing. As reflected in the December 9,
1988 Prehearing Order and
Notice of Hearing Schedule, I stated that, if it were determined later that
an evidentiary hearing was
needed, I would contact the parties to schedule such a proceeding.
EVIDENCE
The material facts in this case are stipulated to and evidenced by the following
exhibits concerning the
underlying State court documents pertaining to the guilty pleas of the Petitioner
and his mother, Petitioner
Joan Todd: the indictments against the Petitioner in Fayette County and Mercer
County (I.G. Exs. 1 and 3,
respectively); the indictment against Petitioner Todd in Fayette County (I.G.
Ex. 2); the transcript of the
Petitioner's plea, along with Petitioner Todd's plea, in Fayette County (P.Ex.
A-1); and the signed plea
agreement of both Petitioners for the charges in both counties. (P. Ex. A-2).
See also, Tape, containing the
parties' stipulation to the authenticity of all exhibits.
The Petitioner acknowledges that he pleaded guilty in State court to misdemeanors
of "falsifying accounts
by falsely certifying Medicaid cost reports" under State law, under "an
Alford plea arrangement," which
the Petitioner's counsel described as "equivalent to a nolo contendere
plea." P. Br. 1.
ISSUES
1. Whether the Petitioner is subject to the minimum mandatory five-year exclusion
provision of section
1128(c)(3)(B) of the Act.
2. Whether the Petitioner was "convicted" of a criminal offense within
the meaning of sections 1128(a)(1)
and (i) of the Act.
3. Whether the 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.
4. Whether the I.G. failed to comply with the federal Administrative Procedure
Act, by (1) not publishing
regulations to implement the distinction between the mandatory and permissive
exclusion authorities, and
(2) relying upon unpublished guidelines/directives in implementing the Act.
5. Whether the I.G. was prohibited by provisions of federal law (regarding
program operating
responsibilities) from excluding the Petitioner.
6. Whether there is a need for an evidentiary hearing in this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Having considered the entire record, the arguments and submissions of the parties,
and being fully advised
herein, I make the following Findings of Fact and Conclusions of Law:
1. The Petitioner is a resident of the State of West Virginia, and was an officer
of incorporated nursing
homes in the State. I.G.Exs. 1 and 3.
2. On March 2, 1987, a bill of indictment was returned in Fayette County, West
Virginia against the
Petitioner, charging him with two counts of "falsifying accounts"
in submission of Medicaid cost reports to
the State Department of Welfare. I.G.Ex. 1.
3. On June 9, 1987, a bill of indictment was returned in Mercer County, West
Virginia against the
Petitioner, charging him with one count of "obtaining money by false pretenses"
in the submission of
Medicaid claims to the State Department of Welfare, and three counts of "falsifying
accounts" in the
submission of Medicaid claims. I.G.Ex. 3.
4. On December 15, 1987, the Petitioner entered into a Plea Agreement whereby
he agreed to plead guilty
in Mercer County, West Virginia to two counts of "attempting to commit
the offense of falsifying
documents," a misdemeanor. P.Ex. A-2.
5. The Mercer County Circuit Court accepted the Petitioner's guilty plea to
the two misdemeanor counts.
P.Ex. A-1/2.
6. The December 15, 1987 plea agreement also included the Petitioner's agreement
to plead guilty in
Fayette County, West Virginia to one count of "attempting to commit the
offense of falsifying accounts," a
misdemeanor. P.Ex. A-2.
7. On February 16, 1988, the Fayette County Circuit Court accepted the Petitioner's plea. P.Ex. A-1.
8. The Petitioner informed the Fayette County Circuit Court that his guilty
plea was taken pursuant to
Kennedy v. Frazier, 357 S.E.2d 43 (W.Va. 1987) and North Carolina v. Alford,
400 U.S. 25 (1970). P.Ex.
A-1/5.
9. At the time the Petitioner entered his guilty plea, he was advised that
the guilty plea would result in a
judgment of guilt. P.Ex. A-1/25.
10. The offenses to which the Petitioner pleaded guilty in Mercer and Fayette
Counties, West
Virginia, are criminal offenses related to the delivery of an item or service
under the Medicaid program
within the meaning of section 1128(a)(1) of the Act.
11. The Petitioner's guilty plea was entered knowingly and voluntarily. P.Ex.A-1/16,
20.
12. The Petitioner was "convicted" of a criminal offense within the
meaning of sections 1128(a)(1) and
1128(i) of the Act.
13. The 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.
14. In accordance with section 1128 of the Act, the Petitioner was properly
excluded from participation in
Medicare and Medicaid for a period of five years.
15. The I.G. did not violate the federal Administrative Procedure Act, 5 U.S.C.
551 et seq., by not
promulgating regulations to distinguish the exclusion authorities in section
1128(a)(1) and 1128(b)(1) of
the Act.
16. The I.G. did not rely upon an "unpublished guidance/directive"
in classifying the Petitioner as subject
to the mandatory exclusion authority of section 1128(a)(1) of the Act.
17. The material and relevant facts in this case are not contested.
18. The classification of the Petitioner's conviction of a criminal offense
as subject to the authority of
section 1128(a)(1) is a legal issue.
19. There is no need for an evidentiary hearing in this case.
20. The I.G. is not prohibited by federal law or regulations from participation in the exclusion process.
21. The I.G. is entitled to summary disposition in this proceeding.
DISCUSSION
I. A Minimum Mandatory Five Year Exclusion Was Requiredin this Case.
As I stated in Stone, section 1128(a)(1) of the Act requires the I.G. to exclude
individuals and entities from
the Medicare program, and to direct their exclusion from the Medicaid program,
for a minimum period of
five years, when such individuals and entities have been "convicted"
of a criminal offense "related to the
delivery of an item or service" under the Medicare or Medicaid programs
within the meaning of section
1128(a)(1) of the Act.
Congressional intent on this matter is clear:
A minimum five-year exclusion is appropriate, given the seriousness of the
offense at
issue. . . . Moreover, a mandatory five-year exclusion should provide a clear
and strong deterrent against
the commission of criminal acts.
S. Rep. No. 109, 100th Cong., 1st Sess. 2, reprinted in 1987 U.S. Code Cong. and Ad. News 682, 686.
Since the Petitioner was "convicted" of a criminal offense and it
was "related to the delivery of an item or
service" under the Medicaid program within the meaning of section 1128(a)(1)
and (i) of the Act, the I.G.
was required to exclude the Petitioner for a minimum of five years.
II. The Petitioner was "Convicted" of a Criminal Offense as a Matter of Federal Law.
Section 1128(i) of the Act provides, in pertinent part, that:
A physician or other individual is considered to have been "convicted"
of a criminal offense --
. . .
(3) when a plea of guilty or nolo contendere by the physician or individual
has been accepted
by a Federal, State, or local court; . . . .
The Petitioner admits that he pleaded guilty to a misdemeanor offense related
to the delivery of a service or
item under the Medicaid program, but he contends that he did so under West Virginia
state procedure,
which permitted him to enter a guilty plea but maintain his innocence, in reliance
upon Kennedy v. Frazier,
357 S.E.2d 43, 45 (W.Va. 1987) and North Carolina v. Alford, 400 U.S. 25, 35-38
(1970). P. Rep. Br. 1.
The Petitioner argues that his Kennedy/Alford plea can not be used to conclusively
determine the nature of
his underlying conduct, and that he is now free in this forum to challenge the
I.G.'s allegations as to the
nature of his criminal offense. P.Br. 3. The I.G. notes that although the Petitioner's
guilty plea could be
considered the equivalent of a nolo contendere plea, it is nonetheless a guilty
plea under North Carolina v.
Alford, 400 U.S. 25 (1970), and further, that it is undisputed that, for purposes
of section 1128, there is a
conviction when a plea of guilty or nolo contendere is accepted by a court.
Although an Alford plea does not require an admission of guilt, it is nonetheless
a plea of guilty. I find and
conclude that the Petitioner was "convicted" within the meaning of
section 1128(a)(1) and (i). It is
axiomatic that the interpretation of a federal statute or regulation is a question
of federal and not state law.
United States v. Allegheny Co., 322 U.S. 174, 183(1944); United States v. Anderson
County, Tennessee,
705 F.2d 184, 187 (6th Cir. 1983), cert. denied, 464 U.S. 1017 (1984). My task
is to interpret the words of
the Act in light of the purposes they were designed to serve and to discern
the meaning of those words.
See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608 (1979).
The term "accepted" in section 1128(i)(3) is defined by Webster's
Third New International Dictionary,
1976 Unabridged Edition, as the past tense of "to receive with consent."
In Alford, the issue presented did not involve whether a plea of guilty was
"accepted," but rather,
concerned the validity of the guilty plea entered. Mr. Alford pleaded guilty,
but maintained that he was
innocent and was choosing to plead guilty only to avoid the possible imposition
of a harsher penalty. The
Court in Alford concluded that a guilty plea is valid if the plea represents
a "voluntary and intelligent
choice among the alternative courses of action open to the defendant."
400 U.S. at 30. The Court held that
the desire of the defendant in Alford to limit a possible penalty would not
"demonstrate that the plea of
guilty was not the product of free and rational choice, especially where the
defendant was represented by
competent counsel." Id. The Court in Alford stated that it would defer
to the States' wisdom in deciding
whether to accept or reject guilty pleas under the terms of Alford. The State
of West Virginia has chosen
to accept Alford pleas and view them as the guilty pleas they are. See Kennedy
v. Frazier, 357 S.E.2d 43
(W.Va. 1987).
The Fayette County Circuit Court made the following inquiries to the Petitioner
regarding the nature of his
plea:
1. Is it your intention and desire to give those rights up and to enter this
plea of "Guilty"
to this charge that's been described? P. Ex. A-1/13;
2. A plea of "Guilty" cannot be accepted unless it's freely and
voluntarily given. Has
anyone promised you that if you enter a plea of "Guilty" this Court
will be lenient with you? P. Ex. A-
1/16;
3. Now, I want you to listen to this, and that's why I asked Mr. Billings
to bring this case
over, as I've asked him on other occasions when we were taking pleas under this
case--or under this
theory. "An accused may voluntarily, knowingly, and understandingly consent
to the imposition of a
proven sentence even though he is unwilling to admit participation in the crime
if he intelligently
concludes that his interests require a guilty plea" -- now, here's the
part -- "and the record supports the
conclusion that a jury can convict him." Now, do you feel, sir, that the
record in this case so far, what
you've told me, would support a conclusion that the jury would convict these
two folks? P. Ex. A-1/19-20;
4. Now, listen. Generally, this Court will not accept a plea of guilty unless
the
defendant states that he or she is actually guilty of the offense. Do you-all
understand that? P. Ex. A-1/20;
5. Now, under this plea bargain agreement that Mr. Billings has entered into
here, and
your counsel, you are proceeding under a case in which the law is as I just
read it to you. And that is that
you have to intelligently conclude that your interests require a guilty plea.
Do you both arrive at that
conclusion? P. Ex. A-1/20;
6. Do you do so after a full and fair examination of all the facts and circumstances
and
available evidence in this case? P. Ex. A-1/20-21;
7. And do you feel, considering all of these circumstances, that the record,
as you know
it, is such that a jury might -- could convict you-all and that it is in your
best interest to enter this plea and
to expose yourselves to these penalties that I've described to you? Do you both
feel that way?
P. Ex. A-1/21.
The Petitioner responded affirmatively to each of these questions. The State
accepted the Petitioner's plea,
and by doing so, in its wisdom, determined in effect that the plea was entered
voluntarily and intelligently.
The finding of guilt and acceptance by the State of the Petitioner's plea thus
satisfies the definition set forth
in section 1128(i)(3) for finding that the Petitioner was "convicted."
III. The Petitioner's Conviction Is "Related to the Delivery of an Item or Service" under Medicaid.
Section 1128(a)(1) requires the I.G. to exclude from participation any individual
who is convicted of a
criminal offense "related to the delivery of an item or service" under
Medicaid (emphasis added). The
Petitioner was convicted in Mercer County Circuit Court under West Virginia
law of two counts of
attempting to commit the offense of falsifying accounts with the West Virginia
Department of Human
Services. P. Ex. A-2/1. In Fayette County Circuit Court, the Petitioner was
convicted of one count of
attempting to commit the offense of falsifying accounts against the West Virginia
Department of Human
Services. P. Ex. A-2/2.
The Petitioner argues that his offenses did not relate to "delivery of
an item or service," but, rather, related
to a misrepresentation based upon incorrect information in his accounting records.
The Petitioner contends
that his offenses relate strictly to the reimbursement function of the Medicaid
program, which is separate
and distinct from the delivery of items or services. The I.G. responds that
the Petitioner was convicted of
several counts of attempting to commit the crime of falsifying accounts in his
capacity as an officer of St.
Mary's Nursing Home, and that, as a result of his plea bargain, the Petitioner
agreed to make restitution to
the State of West Virginia in the amount of $31,149.68. The Petitioner's convictions
involved his attempt
to falsify Medicaid cost reports to fraudulently increase the level of Medicaid
reimbursement, which the
I.G. contends necessarily involves misrepresentations concerning such providers'
delivery of health care
under the Medicaid program. I.G. Br. 5. Thus, the I.G. asserts that the Petitioner's
convictions were for
crimes related to his nursing homes' delivery of items or services under the
Medicaid program. Id.
I find that crimes involving financial misconduct in the submission of Medicaid
claims are "related to" the
"delivery of an item or service." Black's Law Dictionary, Fifth Edition
(West Pub. Co. 1979) defines
"related" as: ". . . standing in relation; connected; allied;
akin." The offense for which the Petitioner was
convicted was "connected to" the delivery of an item or service under
Medicaid. This case should not be
decided in a vacuum, or with a strict, hypertechnical interpretation of the
term "related to" in section
1128(a)(1) of the Act. There is a simple, commonsense connection, supported
by the record, between the
actions associated with the Petitioner's conviction and the Medicaid program.
The Petitioner's
interpretation of "related to" is that the criminal offense must be
restricted to the delivery of an item or
service under Medicare or Medicaid. The Petitioner's strained interpretation
of "related to" is not borne out
by the plain words of section 1128 of the Act or its legislative history.
The offenses to which the Petitioner pleaded guilty involved fraud and financial
misconduct, and were
"related to the delivery of an item or service" under Medicaid. The
criminal offenses of which the
Petitioner was convicted involved the Petitioner obtaining reimbursement from
Medicaid for items or
services which were not rendered as claimed.
Congress's purpose in enacting a separate permissive exclusion authority in
section 1128(b)(1) was not to
provide a more lenient treatment as to any provider convicted of offenses concerning
"financial
misconduct." The separate authority of section 1128(b)(1) was designed
to broaden the scope of the law to
authorize the I.G. to exclude providers who were convicted of offenses involving
government funded
health programs in addition to Medicaid and Medicare, as well as to permit exclusions
for offenses relating
to fraud and other types of financial misconduct, for all such programs.
As support for his contention that the offense for which he was convicted did
not relate to the "delivery" of
medical services, the Petitioner submitted an affidavit from a former employee
of the Health Care
Financing Administration (HCFA), which administers the Medicaid and Medicare
programs. P. Ex. A-3.
In the context of a provider's compliance with program requirements, the affiant
drew a distinction between
more serious deficiencies which the affiant described as relating to the "delivery
of patient care," such as
"an unsafe and hazardous environment," and those allegedly less critical
deficiencies involving Medicare
"conditions of participation" under the regulations, such as "inadequate
social worker visits" and the proper
signing of medical records. The affiant explained that those more serious deficiencies
relating to "delivery
of care" would result in termination of a provider from the program, while
a violation of other conditions
of participation would only require submission of a plan of correction. In considering
the present case, the
affiant concluded that the offenses for which the Petitioner was convicted related
to "reimbursement
through financial misconduct" and were not "related to the delivery
of an item or service within the
conceptual context of the Department's Medicare/Medicaid programs." P.
Ex. A-3/5.
Assuming the affiant's distinction to be a valid one regarding HCFA's certification
of providers, this would
have no relevance in determining Congress's intent in distinguishing exclusions
based upon a conviction of
crimes relating to the "delivery" of medical services from convictions
relating to fraud or other financial
misconduct. As noted by the I.G., the affiant has no expertise with either the
Office of Inspector General,
any health program to detect fraud and abuse, or with section 1128 of the Act.
I.G. Br. 10; P. Ex. A-
3/(attached curriculum vitae). The affiant's opinions are not germane to the
issue of defining the phrase
"related to the delivery of an item or service." The Petitioner's
conviction in this case clearly "related to"
the delivery of medical services, because the Petitioner pleaded guilty to attempting
to falsify accounts
filed with the West Virginia Department of Welfare. Thus, the criminal offense
for which the Petitioner
was convicted is one "related to the delivery of an item or service"
within the meaning of section
1128(a)(1) of the Act.
IV. The I.G. Has Complied With The Administrative Procedure Act.
The Petitioner argued that the I.G. (1) failed to comply with the federal Administrative
Procedure Act, 5
U.S.C. 552(a)(1) and 553, by not promulgating regulations to distinguish section
1128(a) from 1128(b),
and (2) was, instead, relying on "unpublished guidelines/directives in
implementing the statutory
provisions." P. Br. 1 et seq. He argued that, because of this, he lacked
"notice" of the effect of his court
plea. P. Br. 7, 9, 10, 22.
There is no basis for the conclusion that there exists any ambiguity in the
Act such that the promulgation of
regulations to distinguish the two authorities would be necessary or appropriate.
Section 1128(a)(1) clearly
provides that the I.G. must exclude any provider who has been convicted of an
offense "related to the
delivery of an item or service" under Medicare or Medicaid. The separate
authority of section 1128(b)(1),
providing for a permissive exclusion based on a conviction relating to delivery,
or for fraud and other
financial misconduct, clearly concerns programs "financed in whole or in
part by any Federal, State, or
local government agency . . .
." Section 1128(b)(1) by its terms does nothing to alter the I.G.'s charge
to exclude providers for a
minimum five-year period when an individual has been convicted (as defined in
the statute) of a criminal
offense related to the delivery of an item or service under Medicaid or Medicare.
An agency is not
required to promulgate implementing regulations when the express terms of the
statute are clear. See, e.g.,
S.E.C. v. Chenery Corp., 332 U.S. 194, 201 (1947).
Since I find the terms of the Act itself to be clear, I find that the Petitioner
had "notice" that his court plea
would result in an exclusion for a minimum five year period.
I likewise find that the I.G. did not rely upon "unpublished guidelines/directives"
in classifying the
Petitioner's offense. P. Br. 9. The Petitioner submitted (as P. Ex. A-4) a 15-page
document entitled "Civil
Monetary Penalty and Exclusion Authorities," which contains a listing of
each of the statutory authorities
under which the I.G. may proceed in sanctioning a health care provider. The
document contains a brief
description of "conduct" and the corresponding period of exclusion
or other appropriate information. The
Petitioner presented no direct support for his allegation that the I.G. used
this document in determining
whether to classify a particular case as subject to section 1128(a) or 1128(b),
nor did the Petitioner even
speculate how these pages might conceivably serve such a purpose. An examination
of the document
indicates that it was apparently merely used as a convenient listing of the
numerous statutory authorities
which authorize the I.G.'s sanction activities. By its terms, the document provides
no guidance in
determining how to classify a particular case between the various statutory
provisions.
V. There Is No Need For An Evidentiary Hearing In This Case.
I also find to be without merit the Petitioner's argument that he is entitled
to an evidentiary hearing
concerning the classification of his exclusion. P. Br. 23-26. The Petitioner
availed himself of the
opportunity to present oral argument on the legal issues raised in his briefs.
The Petitioner does not
convincingly explain how the record might be further developed through the holding
of an evidentiary
hearing.
The issue of "categorizing" the Petitioner's offense as being subject
to the mandatory exclusion authority is
a legal issue. The Petitioner has already stipulated to the court documents
concerning the nature of the
criminal proceedings against the Petitioner, and has even presented an affidavit
from an expert concerning
the meaning of the phrase "delivery of services."
In his final brief, the Petitioner maintained that he would demonstrate at
an evidentiary hearing that his
conduct was not criminal in nature. P. Rep. Br. 6. This is a collateral attack
on a criminal judgment issued
in another forum and a frivolous argument as it relates the I.G.'s determination
to exclude the Petitioner
under the section 1128(a)(1) authority. I have already addressed the Petitioner's
arguments concerning
whether the activities at issue "related to the delivery of an item or
service" or were instead related only to
"fraud or other financial misconduct." The underlying activities that
gave rise to the criminal charges
against him are otherwise irrelevant; while such matters might be pertinent
to actually trying criminal
charges against him, or to the State Criminal Court for purposes of sentencing,
they would have no further
relevance to a determination in this case.
VI. The I.G.'s Participation In The Exclusion Process Does Not Violate The Act.
The I.G.'s "participation" in the exclusion process is not contrary
to the Act, because it does not conflict
with the prohibition on the "transfer of program operating responsibilities"
to the I.G. 42 U.S.C. 3526(a).
The need for such a prohibition arose when the Office of Inspector General was
created from other
components of the Department, such as the Health Care Financing Administration,
and Congress wanted to
maintain the independent and objective nature of the I.G. S. Rep. No. 1324,
94th Cong., 2d Sess. 8,
reprinted in 1976 U.S. Code Cong. and Ad. News 5420, 5427; see 42 U.S.C. 3521.
The Petitioner argued,
in effect, that the act of excluding providers from federal programs violates
this prohibition since this
constitutes a "program." As support for this position, the Petitioner
cited certain Department regulations
which refer to the transfer of "responsibility" to the I.G. for fraud
and abuse determinations. P. Br. 32-33.
The Petitioner also argued that the I.G. would be unable to "objectively
assess the Department's
administrative law process if the OIG is a participant." P. Br. 34.
The Petitioner has provided no basis for me to conclude that the exclusion
of a provider from the Medicare
and
Medicaid programs is a "program operating responsibility." The term
"program" is subject to various
meanings, and the Petitioner has cited no authority that Congress intended this
term to encompass
exclusion determinations or other fraud and abuse sanction activities.
Moreover, Congress, in amending and strengthening the exclusion law, has itself
approved the involvement
of the I.G. in the exclusion process, since it is the I.G. who has performed
this responsibility from the law's
inception. In fact, the legislative history of the 1987 amendments to the law
expressly approves the
Secretary's delegation of the exclusion authority to the I.G.:
Under current practice, the Secretary has delegated all existing suspension,
exclusion,
and civil monetary penalty authorities to the Department's Inspector General.
The Committee believes that
this delegation of authority by the Secretary is entirely consistent with the
statutory mandate of the HHS
Inspector General (42 U.S.C. section 3521 et seq.) and has resulted in the efficient
administration of these
authorities. The Committee expects the Secretary both to continue this existing
practice and to delegate all
new statutory exclusion authorities created by this bill to the Department's
Inspector General.
S. Rep. No. 109, 100th Cong., 1st Sess. 14, reprinted in 1987 U.S. Code Cong. and Ad. News 682, 695.
CONCLUSION
Based on the law and undisputed material facts in the record of this case,
I conclude that the I.G. properly
excluded the Petitioner from the Medicare program, and directed his exclusion
from State health care
programs, for the minimum mandatory period of five years.
IT IS SO ORDERED.
__________________________
Charles E. Stratton
Administrative Law Judg
Addressees:
RETURN RECEIPT REQUESTED
Kenneth J. Haber, Esquire
24 Gold Kettle Court
Gaithersburg, Maryland 20878
and
Javier Arrastia, Esquire
Anna Belle Loeb, Esquire
Assistant Regional Counsels
DHHS -- Region III
3535 Market Street, Room 9100
P.O. Box 13716
Philadelphia, Pennsylvania 19101
cc: Office of Inspector General Office of Investigations
Room 3-C-1, Meadows East Building
Baltimore, Maryland 21207
Robert Cavanaugh
Regional Inspector General
Office of Investigations
P.O. Box 8049
Philadelphia, Pennsylvania 19101