Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Sonia M. Geourzoung, M.D., Petitioner,
- v. -
The Inspector General.
DATE: September 20, 1993
Docket No. C-93-019
Decision No. CR286
DECISION
By letter dated September 17, 1992, Sonia M. Geourzoung, M.D., 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 Petitioner for a period of five years from participation in the Medicare
program and from
participation in the the State health care programs described in section 1128(h)
of the Social Security Act
(Act), which are referred to herein as "Medicaid." The I.G.'s rationale
was that exclusion, for at least five
years, is mandated by 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 Medicaid.
Petitioner filed a timely request for review of the I.G.'s action. The I.G.
moved for summary disposition.
Petitioner opposed the motion. I heard oral argument on July 20, 1993.
Because I have determined that there are no genuine issues of material fact,
I have granted the I.G.'s
motion and have decided the case on the basis of the parties' written submissions.
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. During the period relevant to this case, Petitioner
was a physician licensed by the State of New York, and a Medicare and Medicaid
provider. I.G. Proposed
Finding 1; Petitioner's Memorandum in Opposition to Inspector General's Motion
for Summary Disposition
at 10.
2. On April 24, 1991, Petitioner was indicted for: 1) aiding and abetting the
unauthorized practice of
medicine; 2) Grand Larceny in the Third Degree; and 3) Offering a False Instrument
for Filing in the First
Degree. I.G. Ex 1. 1/
3. On October 3, 1991, Petitioner pled guilty in New York State Supreme Court
to Attempted Grand
Larceny in the Fourth Degree and Offering a false instrument for Filing in the
Second Degree. The acts
which gave rise to these charges consisted of Petitioner's submitting claims
for Medicaid reimbursement
for her professional services. These claims were false and fraudulent in that
she knowingly sought and
collected payments for treatment which had actually been rendered by her employees,
who were not
licensed physicians. I.G. Ex. 2 & 3.
4. The court accepted Petitioner's plea and, on November 18, 1991, sentenced
her to conditional discharge
and required her to make restitution in the amount of $14,000 to Medicaid. I.G.
Ex. 2 & 3.
5. The Secretary of Health and Human Services delegated to the I.G. the authority
to determine and impose
exclusions pursuant to section 1128 of the Act. 48 Fed. Reg. 21662 (1983).
6. Petitioner's guilty plea, plus the judge's acceptance thereof, constitute
a "conviction" within the meaning
of section 1128(i) of the Act.
7. The acts leading to Petitioner's conviction in the present case constitute
criminal offenses related to the
delivery of Medicaid services.
8. Where a program-related conviction is the basis for an exclusion, that exclusion
must be for a mandatory
minimum period of five years and whether the conviction may also be a basis
for a permissive exclusion
under section 1128(b) of the Act is not a relevant consideration.
9. Petitioner's argument that her conduct was justified by the New York Education
Law is an impermissible
collateral attack upon her confession and conviction.
10. In a mandatory minimum case such as this, I am not authorized to consider
Petitioner's contentions
regarding her trustworthiness and the good care she purportedly gave her patients,
these being essentially
arguments for mitigation.
PETITIONER'S ARGUMENT
Petitioner asserts that her conduct was justified by Section 6530(25) of the
New York Education Law,
which permits the delegation of certain professional responsibilities.
She contends that, in the years that have passed since her conviction, she
has shown that she is trustworthy,
and that to exclude her at this time would be disproportionate and vindictive.
She further insists that her actions in no way diminished the quality of care received by patients.
She maintains that, if she is to be subjected to an exclusion action, it should
be under section 1128 (b) of
the Act, which does not mandate a minimum five-year period.
Lastly, she argues that imposition of a five-year exclusion in her case violates
her constitutional right to
equal protection under the law.
DISCUSSION
The first statutory requirement for mandatory exclusion pursuant to section
1128(a)(1) of the Act is that the
individual in question have been convicted of a criminal offense under federal
or State law. In the case at
hand, Petitioner pled guilty and the court, after careful inquiry, accepted
the plea. Section 1128(i)(3) of the
Act expressly states that when an individual enters a plea of guilty, and the
court accepts the plea, such
person is considered to have been convicted of a criminal offense.
Next, it is required by section 1128(a)(1) of the Act that Petitioner's criminal
offense be related to the
delivery of an item or service under Medicaid or Medicare. Case precedent clearly
establishes a general
rule that all crimes involving financial misconduct directed at the Medicaid/Medicare
programs are, by
their very nature, related to the delivery of items or services under such programs,
within the meaning of
1128(a)(1). Samuel W. Chang, M.D., DAB 1198 (1990); Carlos E. Zamora, M.D.,
DAB 1104 (1989).
Napoleon S. Maminta, M.D., DAB 1135 (1990). As to the exact offense involved
herein, it is also well-
established in DAB decisions that filing false Medicare or Medicaid claims constitutes
clear program-
related misconduct, sufficient to mandate exclusion. See, e.g., Jack W. Greene,
DAB CR19, aff'd DAB
1078 (1989), aff'd Greene v. Sullivan, 731 F. Supp. 835 and 838 (E.D. Tenn.
1990). I find that the actions
for which Petitioner was convicted in the present case -- making false representations
in claims for
Medicaid reimbursement (resulting in her receiving thousands of dollars in payments
to which she was not
entitled) -- constitute criminal offenses related to the delivery of Medicaid
services.
In Boris Lipovsky, M.D., DAB 1363 (1992), an appellate panel of the DAB held
that where a criminal
conviction satisfies the requirement of section 1128(a)(1) that it be related
to the delivery of an item or
service under Medicare or Medicaid, then section 1128(a)(1) is controlling and
the I.G. must impose the
mandatory exclusion established by the statute. The fact that the criminal conviction
may also appear to
fall within the criteria for permissive exclusion found in section 1128(b)(1)
is irrelevant. Id.
Petitioner was convicted of Attempted Grand Larceny in the Fourth Degree and
Offering a false instrument
for Filing in the Second Degree. Her argument that her conduct was justified
by Section 6530(25) of the
New York Education Law evidently did not impress the State court and will not
be considered here,
because it would constitute an impermissible collateral attack upon her confession
and conviction.
DAB administrative law judges and appellate panels have determined that proof
of criminal intent is not
required to bring a conviction within the ambit of section 1128(a)(1) and that
arguments that a petitioner is
actually innocent, or that the trial was unfair, or that the mandatory exclusion
should be modified because
of mitigating circumstances will not avail to reduce the mandatory minimum period.
See, e.g., Janet
Wallace, L.P.N., DAB 1126 (1992); Dewayne Franzen, DAB 1165 (1990); Richard
G. Philips, D.P.M.,
DAB CR133, aff'd DAB 1279 (1991); Peter J. Edmonson, DAB 1330 (1992).
Petitioner contends that her exclusion should be shortened because the I.G.
did not act within a reasonable
time to effect her exclusion. The I.G. must initiate an exclusion whenever the
I.G. has conclusive
information that a person has been convicted of a program-related crime; no
deadline is imposed upon the
I.G. for such action. 42 CFR 1001.123. See Douglas Schram, R.Ph., DAB 1372 (1992).
An
administrative law judge has no authority to alter the effective date of exclusion
designated by the I.G.
where the I.G. acted within the discretion afforded by statute and regulation
in setting the effective date.
Shanti Jain. M.D., DAB 1398 (1993).
Finally, Petitioner argues that imposition of the mandatory minimum five-year
exclusion violates her
constitutional right to equal protection under the law. Her argument appears
to be that a five-year
exclusion is so disproportionate to the crimes of which she was convicted as
to deprive her of equal
protection. Whatever may be the merit of Petitioner's constitutional argument,
I am without authority to
address it here. See, e.g., John A. Crawford, Jr., M.D., DAB 1324 (1992).
CONCLUSION
Sections 1128(a)(2) 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 her conviction
for larceny and
misrepresentation. Neither the I.G. nor the judge is authorized to reduce the
five-year minimum mandatory
period of exclusion. Greene, DAB CR19, at 12 - 14.
The I.G.'s five-year exclusion is, therefore, sustained.
_______________________________
Joseph K. Riotto
Administrative Law Judge
1. The I.G. submitted five exhibits with the Motion for Summary Disposition.
Petitioner did not submit
any exhibits. I am admitting I.G. Exhibits (Ex.) 1 through 5.