Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Jeffrey Singer, Petitioner
- v. -
The Inspector General.
DATE: October 20, 1993
Docket No. C-93-082
Decision No. CR291
DECISION
By letter dated May 7, 1993, Jeffrey Singer, 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, Medicaid, Maternal
and Child Health Services
Block Grant and Block Grants to States for Social Services programs. (I use
the term "Medicaid" in this
Decision when referring to the programs other than Medicare from which Petitioner
has been excluded.)
The I.G. explained that the five-year exclusion was 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 Medicaid.
Petitioner filed a timely request for review of the I.G.'s action. Both parties briefed the issues. 1/
Because I have determined 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 decide
the case on the basis of
written submissions in lieu of an in-person hearing.
I affirm the I.G.'s determination to exclude Petitioner from participation
in Medicare and Medicaid 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 an audiologist,
licensed by the State of New
York. I.G. Ex. 2 at 7. 2/
2. On February 7, 1992, a Nassau County Court judge accepted Petitioner's guilty
plea to the charge of
offering a false instrument for filing (second degree), a misdemeanor. I.G.
Ex. 1, 2.
3. Specifically, the "false instrument" Petitioner had "offered
for filing" was a fraudulent claim for
Medicaid reimbursement. The claim was false or fraudulent in that it overstated
the cost of certain medical
equipment. I.G. Ex. 2 at 7 - 8; 3 at 3 - 4.
4. Based on Petitioner's guilty plea, on April 6, 1992, the judge sentenced
Petitioner to a conditional
discharge and imposed a $500 fine and a $5 crime victims' assistance fee. I.G.
Ex. 1, 3 at 4.
5. At sentencing also, the judge issued Petitioner a certificate of relief
from disabilities. I.G. Ex. 1, 3
at 5; P. Ex. 1.
6. The certificate of relief from disabilities purports to "[R]elieve
the holder . . . of all disabilities and
bars to employment." P. Ex. 1.
7. A State-issued certificate of relief from disabilities does not bar the application of a federal statute.
8. The Secretary of HHS delegated to the I.G. the authority to determine and
impose exclusions
pursuant to section 1128 of the Act. 48 Fed. Reg. 21,662 (1983).
9. On May 7, 1993, Petitioner was notified by the I.G. that it had been decided
to exclude him for a
period of five years from participation in Medicare and Medicaid because of
his criminal conviction.
10. Petitioner's guilty plea, plus the judge's acceptance thereof, amounts
to a "conviction" for purposes
of the Act. Finding 2; Act, section 1128(i)(3).
11. Petitioner's conviction for submitting a fraudulent claim for Medicaid
reimbursement constitutes
clear program-related misconduct, sufficient to mandate exclusion. Findings
2 - 3; Act, section 1128(a)(1).
12. Because Petitioner's criminal conviction satisfies the criteria for exclusion
under section 1128(a)(1) of
the Act, the I.G. must exclude him for a period of at least five years. Act,
sections 1128(a)(1),
1128(c)(3)(B).
PETITIONER'S ARGUMENT
Petitioner contends that his criminal conviction was not related to the delivery
of items or services under
Medicare or Medicaid, within the meaning of section 1128(a)(1) of the Act. Instead,
Petitioner asserts that
his criminal conviction was for fraud or breach of fiduciary responsibility.
Petitioner contends that
convictions for fraud or for breach of fiduciary responsibility fall under section
1128(b)(1) of the Act, not
section 1128(a)(1) of the Act, and constitute grounds for permissive exclusion
only.
Petitioner contends further that since the court granted him a certificate
of relief from disabilities (by which
Petitioner's conviction would not, among other things, act as a bar to employment
or to the receipt of any
license or permit), the I.G. should not have imposed and directed an exclusion
against him under section
1128(a)(1) of the Act.
Finally, Petitioner raises several factors which he asserts mitigate the length of his exclusion.
DISCUSSION
The first statutory requirement for mandatory exclusion pursuant to section
1128(a)(1) of the Act is that the
individual in question has 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
his plea. Finding 2. Section
1128(i)(3) of the Act expressly states that when an individual enters a plea
of guilty, and a 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) that Petitioner's criminal offense
be related to the delivery of an
item or service under Medicare or Medicaid. Departmental Appeals Board (DAB)
case precedent clearly
establishes a general rule that all crimes involving financial misconduct directed
at Medicare or Medicaid
are, by their very nature, related to the delivery of items or services under
Medicare and Medicaid within
the meaning of section 1128(a)(1) of the Act. Samuel W. Chang, M.D., DAB 1198
(1990) (false billing);
Carlos E. Zamora, M.D., DAB 1104 (1989) (false billing); and Napoleon S. Maminta,
M.D., DAB 1135
(1990) (conversion of a Medicare reimbursement check). As to the exact offense
involved herein, it is
well-established also in DAB decisions that filing false Medicare or Medicaid
claims constitutes clear
program-related misconduct, sufficient to mandate exclusion. Jack W. Greene,
DAB CR19, 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
act which provided the basis for Petitioner's criminal conviction in the present
case -- making a false
representation in a claim for Medicaid reimbursement -- constitutes a criminal
offense related to the
delivery of an item or service under Medicaid.
As to Petitioner's contentions regarding permissive versus mandatory exclusions,
appellate panels of the
DAB have considered the relationship between sections 1128(a)(1) [mandatory]
and 1128(b)(1)
[permissive] of the Act. These appellate panels have concluded that where a
criminal conviction meets the
requirements of section 1128(a)(1), then that section is controlling and the
I.G. must impose the mandatory
five-year exclusion. The fact that a petitioner's criminal conviction might
also meet the more inclusive
elements of section 1128(b)(1) does not remove it from the ambit of section
1128(a)(1). Boris Lipovsky,
M.D., DAB 1363, at 6 - 12 (1992).
As to Petitioner's contentions regarding the certificate of relief from disabilities
issued to him, an appellate
panel of the DAB has explicitly held that a State-issued certificate of relief
from disabilities does not take
precedence over the application of a federal law enacted to protect a legitimate
federal interest, such as
safeguarding Medicare and Medicaid. Janet Wallace, L.P.N., DAB 1326, at 10 -
12 (1992). Moreover, the
certificate issued Petitioner specifically states that it will "Not prevent
any judicial, administrative,
licensing or other body, board or authority from relying upon the conviction
specified . . . as the basis for
the exercise of its discretionary power to suspend, revoke, refuse to issue
or renew any license, permit or
other authority or privilege." Thus, by its own terms, the certificate
cannot be used to prevent a court or
administrative agency from relying upon the conviction in carrying out its statutory
authority. Here the
statutory authority delegated to the I.G. is the authority to exclude Petitioner
pursuant to section 1128(a)(1)
of the Act.
Finally, neither the I.G. nor an administrative law judge is authorized to
reduce the five-year minimum
mandatory period of exclusion. Greene, DAB CR19, at 12 - 14. Thus, as the I.G.
has excluded Petitioner
for the minimum mandatory period only, I am unable to consider any of the mitigating
factors raised by
Petitioner regarding the reasonableness of the length of his exclusion.
CONCLUSION
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act require that Petitioner be
excluded from Medicare and
Medicaid for a period of at least five years because of his conviction of a
criminal offense related to the
delivery of an item or service under Medicaid. The I.G.'s five-year exclusion
is, therefore, sustained.
_______________________________
Joseph K. Riotto
Administrative Law Judge
1. During the June 28, 1993 telephone prehearing conference, Petitioner stipulated
that he had been
convicted of a criminal offense which was related to the delivery of an item
or service under Medicaid.
However, in his brief, Petitioner requested that I allow him to withdraw his
stipulation. The I.G. noted this
change, but did not object to his request. Therefore, I am granting Petitioner's
request and allowing him to
withdraw his stipulation.
2. The I.G. submitted three exhibits. Petitioner submitted one exhibit. In
the absence of objection, I am
admitting I.G. Exhibits 1 - 3 and Petitioner's Exhibit 1. I cite to the I.G.'s
Exhibits as I.G. Ex (at page). I
cite to Petitioner's Exhibit as P. Ex. 1.