Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Mary Ann Jimenez, Petitioner,
- v. -
The Inspector General.
DATE: February 18, 1994
Docket No. C-93-017
Decision No. CR304
DECISION
On October 15, 1992, 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 for a period of five years. 1/ The I.G.
advised Petitioner that she
was being excluded pursuant to 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 Medicaid. The I.G.
advised Petitioner further that, in cases of exclusions imposed pursuant to
section 1128(a)(1) of the Act,
section 1128(c)(3)(B) of the Act requires a minimum five-year exclusion. By
letter of November 11, 1992,
Petitioner requested a hearing.
This case was assigned originally to Administrative Law Judge Edward D. Steinman.
Judge Steinman set a
telephone prehearing conference in this case for December 28, 1992. However,
at Petitioner's request,
Judge Steinman continued the conference while Petitioner appealed her conviction
in State court. During a
telephone prehearing conference held on April 29, 1993, Petitioner informed
Judge Steinman that her
conviction was final. The I.G. then requested that Judge Steinman hear the case
via an exchange of briefs
in lieu of an in-person hearing. Petitioner indicated that there might be factual
issues in the case which
would necessitate an in-person hearing. However, Petitioner agreed to the I.G.'s
request in order to
expedite a resolution of her case. In granting the I.G.'s request, Judge Steinman
stated that he would rule
on whether disputed facts existed after consideration of the parties' briefs.
Both parties timely filed briefs
in accordance with Judge Steinman's Order of May 3, 1993.
On July 26, 1993, this case was reassigned to me for hearing and decision.
I held a telephone prehearing
conference in the case on October 1, 1993. During the conference, Petitioner
notified me that her brief
constituted a cross-motion for summary disposition. I then informed the parties
that my consideration of
the evidence and arguments they submitted had convinced me that there was insufficient
evidence in the
record to grant either party's motion for summary disposition.
I inquired of the parties whether they believed that an in-person hearing was
thus necessary. Both parties
agreed that the case should be heard via a supplemental exchange of written
briefs and documentary
evidence in lieu of an in-person hearing.
I then held the parties' cross-motions in abeyance and set a schedule for their
supplemental submissions. I
directed the parties to consider in their supplemental briefing whether I could
sustain an exclusion against
Petitioner under section 1128(a)(2) of the Act where the I.G. had relied only
on section 1128(a)(1) of the
Act as the basis for Petitioner's exclusion. See my October 4, 1993 Prehearing
Order And Schedule For
Filing Supplemental Motions For Summary Disposition. Both parties timely filed
their supplemental
briefs. The I.G. also filed a motion to supplement the October 15, 1992 notice
of exclusion to include
section 1128(a)(2) as a separate and independent basis for excluding Petitioner
for five years. Petitioner's
section 1128(a)(2) exclusion was to begin 20 days after the date on which I
granted the I.G.'s motion. I.G.
Supp. Br. 3 - 4. 2/ I am denying the I.G.'s motion to supplement the notice
of exclusion in the manner
requested in her motion.
I have carefully considered the exhibits filed by the I.G. and Petitioner.
3/ I have considered also the
parties' arguments and the relevant law and regulations. I conclude that the
I.G. is authorized to exclude
Petitioner pursuant to sections 1128(a)(1) and 1128(a)(2) of the Act. I conclude
further that, pursuant to
sections 1128(a)(1), 1128(a)(2) and 1128(c)(3)(B) of the Act, the I.G. is required
to exclude Petitioner for a
minimum period of five years.
ISSUES
The issues in this case are whether:
1. Petitioner was convicted of a criminal offense;
2. Petitioner's conviction relates to the delivery of an item or service under
Medicare or Medicaid;
3. Petitioner is subject to a minimum mandatory five year exclusion pursuant
to sections
1128(a)(1) and 1128(c)(3)(B) of the Act;
4. I have the authority to consider the relationship between Petitioner's
conviction and section
1128(a)(2) of the Act, where section 1128(a)(2) was not referenced in the I.G.'s
October 15, 1992 notice of
exclusion;
5. I should permit the I.G. to supplement the October 15, 1992 notice of exclusion
to include
section 1128(a)(2) as a separate and independent basis for Petitioner's five-year
exclusion; and
6. Section 1128(a)(2) of the Act exists as a separate and independent basis
for the five-year
exclusion the I.G. imposed and directed on October 15, 1992.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BY STIPULATION OF THE PARTIES 4/
1. Beginning in September 1988, Petitioner, a registered nurse, was employed
at the Indochinese Medical
Clinic (Clinic) in Modesto, California. I.G. Br. 3, 4; P. Br. 3.
2. On October 11, 1988, a patient, MM, 5/ was treated at the Clinic under Petitioner's
direction. I.G. Br. 4;
P. Br. 3.
3. Petitioner previously had treated MM at the Clinic on October 3, 1988. I.G. Br. 4; P. Br. 3.
4. On October 11, 1988, Petitioner directed that a co-worker inject MM with
penicillin. I.G. Br. 4; P. Br.
3.
5. On October 11, 1988, MM presented her Medi-Cal card to Clinic personnel
in connection with her
treatment. I.G. Br. 4; P. Br. 3.
6. The Clinic's records indicate that MM was insured by Medi-Cal. I.G. Br. 4; P. Br. 3.
7. Petitioner was not licensed to treat MM as she did at the Clinic on October
11, 1988. I.G. Br. 4; P. Br.
3.
8. Petitioner's co-worker was not licensed to inject MM with penicillin, as
Petitioner instructed him to do
on October 11, 1988. I.G. Br. 4 - 5; P. Br. 3.
9. The Stanislaus County Superior Court (State court) found Petitioner guilty,
after a jury trial, of a
misdemeanor -- practicing medicine without a certificate -- in connection with
MM's treatment at the Clinic
on October 11, 1988. I.G. Br. 5; P. Br. 3; I.G. Exs. 2 at 18, 3 at 2 - 3, 10
at 10, 11.
10. On June 19, 1990, Petitioner was sentenced to 30 days in jail, which sentence
was suspended. Instead,
Petitioner was placed on two years' probation conditioned on her not engaging
in any health care service
for which a certificate or license is required without being authorized to perform
such service. Also,
Petitioner was fined $750 plus penalty assessment. I.G. Br. 6; P. Br. 3.
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(a)(1)
of the Act. 48 Fed.
Reg. 21,662 (1983). I.G. Br. 7; P. Br. 3.
OTHER FINDINGS OF FACT AND CONCLUSIONS OF LAW
12. Medi-Cal (California's Medicaid program) is a State health care program
as defined by section
1128(a)(1) of the Act.
13. MM was insured by Medi-Cal when she was treated by Petitioner. I.G. Exs.
4 at 2 - 3, 5 at 2, 6;
Finding 6.
14. The I.G. offered no proof that a bill was submitted to Medi-Cal for Petitioner's
services to MM on
October 11, 1988. See, P. Br. 4; I.G. R. Br. 8.
15. Under section 1128(a)(1) of the Act, a conviction is related to the delivery
of an item or service under
Medicare or Medicaid where there exists a common sense relationship between
the criminal offense that
has resulted in the conviction and the delivery of an item or service under
Medicare or Medicaid. Thelma
Walley, DAB 1367, at 9 (1992); Boris Lipovsky, M.D., DAB 1363 (1992); see also
Jack W. Greene, DAB
1078 (1989), aff'd 731 F. Supp. 835 and 838 (E.D. Tenn. 1990).
16. For a conviction to form the basis for an individual's or entity's exclusion
under section 1128(a)(1) of
the Act, that individual or entity need not have been convicted of a criminal
offense involving the
submission of fraudulent claims to Medicare or Medicaid. See Finding 15.
17. Petitioner's employers and co-workers at the Clinic were convicted of various
charges relating to
crimes committed against Medi-Cal during the period from January to November
1988. I.G. Exs. 2, 10; P.
Ex. 3; I.G. Br. 5 - 6; P. Br. 2.
18. From January to November 1988, the Clinic was accepting patients covered
by Medi-Cal, and
physicians' Medi-Cal provider numbers were used illegally by Petitioner's employers
and co-workers at the
Clinic to perpetrate financial fraud against Medi-Cal. I.G. Exs. 2, 3 at 3;
I.G. Br. 5 - 6; P. Br. 2; Finding
17.
19. Petitioner was acquitted of charges that she conspired with others in unlawfully
examining,
diagnosing, and treating patients on October 3, October 18, and November 8,
1988. I.G. Exs. 10 at 5 - 6,
11; P. Ex. 3 at 2.
20. Petitioner was convicted of having committed an offense in connection with
her delivery of health care
services to MM on October 11, 1988. Findings 9, 19.
21. The specific count of the Information on which Petitioner's conviction
was based stated that, on
October 11, 1988, Petitioner diagnosed, treated, and prescribed for MM's physical
condition without
Petitioner's having a valid certificate and authorization to practice medicine.
I.G. Ex. 2 at 14, 3 at 2, 10 at
10, 11.
22. Petitioner's acquittal of charges that she conspired with others to unlawfully
examine, diagnose and
treat patients on October 3, October 18, and November 8, 1988, does not establish
that her conviction for
treating MM on October 11, 1988 was unrelated to the delivery of services under
Medicaid. Findings 19,
20, 21.
23. The medical condition for which MM sought treatment at the Clinic on October
11, 1988 related to
syphilis. I.G. Ex. 5.
24. There is no evidence that the Clinic asked MM to pay for the services rendered
by Petitioner on
October 11, 1988.
25. There is no evidence that MM ever paid for the medical services provided
by Petitioner on October 11,
1988.
26. 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. Findings 4 -
9, 15, 16, 18, 20 - 25.
27. The I.G. had authority to impose and direct an exclusion against Petitioner
pursuant to section
1128(a)(1) of the Act. Findings 11, 26.
28. The I.G. is required to exclude Petitioner for a minimum period of five
years. Sections 1128(a)(1)
and 1128(c)(3)(B) of the Act.
29. Petitioner's conviction also relates to patient abuse or neglect in connection
with the delivery of a
health care item or service. Findings 1 - 9; section 1128(a)(2) of the Act.
30. It would be inequitable to Petitioner, and it would not serve the interest
of judicial economy, to grant
the I.G.'s motion to supplement the October 15, 1992 notice excluding Petitioner
in the manner proposed
by the I.G. See I.G. Supp. Br. 3 - 5; I.G. Ex. 12.
31. I have the authority to consider section 1128(a)(2) of the Act as a basis
for the five-year exclusion
already directed and imposed against Petitioner by the I.G., even though the
I.G. did not identify it as a
basis for Petitioner's exclusion in the I.G.'s October 15, 1992 notice of exclusion.
42 C.F.R.
1001.2007(a)(1), 1005.15(f)(1), 1005.4(b).
32. The five-year exclusion that commenced 20 days after the I.G.'s issuance
of the October 15, 1992
notice of exclusion is mandatory also under section 1128(a)(2) of the Act. Findings
29, 31; section
1128(c)(3)(B) of the Act.
DISCUSSION
I. THE I.G. PROPERLY IMPOSED AND DIRECTED A FIVE-YEAR EXCLUSION PURSUANT TO
SECTION 1128(a)(1) OF THE ACT.
I am deciding this case pursuant to the parties' cross-motions for summary
judgment because there exists
no genuine issue of material fact under section 1128(a)(1) of the Act, and the
only matter to be adjudicated
is the legal significance of certain stipulated or undisputed facts.
As I explain below, central to Petitioner's position (that her conviction is
not related to the delivery of an
item or service under Medicaid) is the absence of any evidence that Medicaid
was billed for the services
upon which Petitioner's conviction was based. See Finding 14. Central to the
I.G.'s position (that
Petitioner's conviction is related to the delivery of a service under Medicaid)
are the stipulations and
uncontradicted evidence establishing that Petitioner was convicted of having
delivered health care services
to a patient who was, in fact, insured by Medi-Cal and who had presented her
Medi-Cal card in connection
with the medical treatment unlawfully provided by Petitioner. The I.G. asserts
that Petitioner's services
were provided during a period of time when the Clinic employing Petitioner was
accepting Medi-Cal
patients and Petitioner's employers and co-workers at the Clinic were committing
various financial crimes
against Medi-Cal. See Findings 1 - 10, 18. 6/
The parties' legal opinions differ as to what facts are necessary to prove
that Petitioner's conviction is
program-related under section 1128(a)(1) of the Act. Each party believes that,
as a matter of law, no
significance can be given to the stipulated or uncontroverted facts relied upon
by the other party on the
program-relatedness issue.
For the reasons that follow, I find that Petitioner's motion for summary judgment
must be denied as a
matter of law. The I.G. has established a prima facie case against Petitioner
under section 1128(a)(1) of the
Act by satisfying each statutory element of section 1128(a)(1) using facts that
are either uncontroverted,
clear from the record, or not reasonably subject to differing interpretations.
Petitioner has failed to dispute
the I.G.'s prima facie case with evidence showing that any genuine issue of
material fact remains. I
therefore find that the I.G. is entitled to summary judgment in her favor under
section 1128(a)(1) of the
Act.
A. A conviction involving fraudulent billing of Medicare or Medicaid is not
a prerequisite to Petitioner's
exclusion under section 1128(a)(1) of the Act.
In order for the I.G. to establish a basis for a minimum mandatory five-year
exclusion pursuant to sections
1128(a)(1) and 1128(c)(3)(B) of the Act, the I.G. must prove first that an excluded
person has been
convicted of a criminal offense, and, second, that the criminal offense relates
to the delivery of an item or
service under Medicare or Medicaid. Here, Petitioner does not contest that she
was convicted of a criminal
offense. However, Petitioner does contest whether her conviction relates to
the delivery of an item or
service under the Medicaid program. P. Br. 6.
Petitioner argues that the patient she treated on October 11, 1988, MM, was
not a recipient of Medicaid
services because, even though the patient was eligible for Medi-Cal covered
services and had submitted her
Medi-Cal card to the Clinic in connection with her treatment, there is no evidence
showing that Medi-Cal
was billed for those services. P. Br. 4, 6 - 9; P. Supp. Br. 2 - 5. Petitioner
contends that, for her conviction
to relate to the delivery of services under Medicaid, the I.G. must submit evidence
proving the submission
of a bill or a claim for services under Medicaid. Id..
I disagree. Billing to the programs may be evidence that a conviction is program-related.
However, the
absence of a bill does not establish as a matter of law that the conviction
is unrelated to the programs.
As the cases cited by Petitioner hold, if the evidence underlying the conviction
proves that a fraudulent bill
or claim for services has been submitted to Medicare or Medicaid, the I.G. may
impose an exclusion under
section 1128(a)(1) of the Act. The decisions cited by Petitioner -- H. Gene
Blankenship, DAB CR42
(1989); David D. DeFries, D.C., DAB CR156 (1991), aff'd DAB 1317 (1992); Michael
I. Sabbagh, M.D.,
DAB CR20 (1989); DeWayne Franzen, DAB CR58 (1989), aff'd DAB 1165 (1990); Carolyn
C. Nagy,
DAB CR182 (1992); and Greene -- all involve fact situations where there was
evidence of billing.
However, nothing in the language of these decisions suggests that an exclusion
may not be imposed under
section 1128(a)(1) of the Act unless reimbursement has been sought from Medicare
or Medicaid. Other
criminal acts may be related to (e.g., arise from, impact upon, or result in)
the delivery of items or services
under these programs.
B. There exists a common sense nexus between the acts underlying Petitioner's
conviction and the delivery
of services under Medicaid.
Departmental Appeals Board administrative law judge and appellate panel decisions
have held that if there
is a "common sense connection" between an offense and the delivery
of an item or service under Medicare
or Medicaid, then exclusion under section 1128(a)(1) is proper. Walley, DAB
1367, at 9. Thus, for a
conviction to be "related to" section 1128(a)(1), Departmental Appeals
Board precedent suggests that there
must be some nexus between the delivery of an item or service under the programs
and the offense. Id..
Moreover, this determination is not made merely on "a narrow examination
of the language within the four
corners of the final judgment and order of the criminal trial court." Blankenship,
DAB CR42, at 11. While
committing an offense against a Medicaid patient is not per se grounds for imposing
an exclusion under
section 1128(a)(1), such grounds exist when the offense was committed against
a Medicaid patient in the
course of delivering services to that patient under Medicaid. Jerry L. Edmonson,
DAB CR59, at 8 (1989)
(upholding an exclusion under section 1128(a)(1) based on a nursing home administrator's
conviction for
having misapplied funds of a Medicaid recipient-patient that had been held in
trust as a condition of the
facility's participation in Medicaid).
The stipulated facts relating to Petitioner's conviction are that Petitioner,
a registered nurse working in a
medical clinic, was convicted of practicing medicine without a certificate when
she treated patient MM on
October 11, 1988. MM had presented her Medi-Cal card to the Clinic in connection
with the treatment she
received that day. Petitioner unlawfully provided diagnosis, treatment, and
prescription for MM's medical
condition, in addition to having directed another unlicensed employee of the
Clinic to give MM an
injection of penicillin. Findings 1 - 8. Petitioner was then prosecuted and
convicted for having provided
medical services to this particular patient on October 11, 1988 without having
been licensed or authorized
to do so under State law. Findings 9, 10.
On the face of these undisputed facts alone, there exists a common sense connection
between the delivery
of services under the Medicaid program and Petitioner's conviction. Petitioner's
presentation of her Medi-
Cal card on October 11, 1988 was, in the words of the parties' stipulation,
"in connection with her
treatment" on October 11, 1988. I.G. Br. 4; P. Br. 3. After treatment was
provided by Petitioner to MM in
the foregoing context, the mere absence of a Medi-Cal reimbursement claim for
Petitioner's illegal services
to MM does not materially alter the common sense nexus between Petitioner's
conviction and the program.
There is no evidence to suggest (and Petitioner has not alleged) that if MM
had not presented her Medi-Cal
card in connection with her treatment on October 11, 1988, Petitioner would
have delivered the health care
services upon which her conviction was based. In cross-moving for summary judgment
in her favor,
Petitioner has presented no evidence or argument to suggest that she provided
services to MM for reasons
unrelated to MM's status under Medi-Cal or MM's presentation of her Medi-Cal
card at the Clinic. There is
no indication in the record that MM was ever told by Petitioner or the Clinic
that no Medi-Cal covered
services would be delivered to her, that the Clinic would not accept Medi-Cal
patients, or that MM could
not receive medical services on presentation of her Medi-Cal card. There is
also no evidence or allegation
that the Clinic rejected MM's Medi-Cal card on October 11, 1988 or that MM may
have presented the card
for reasons that were unrelated to her seeking the delivery of services under
Medi-Cal.
According to Petitioner's notes, MM sought treatment at the Clinic for symptoms
of syphilis, and, on
October 11, 1988, MM was given an injection of penicillin on Petitioner's authorization.
Findings 4, 23;
I.G. Ex. 5. In opposing the I.G.'s motion for summary judgment and in support
of her own cross-motion,
Petitioner has introduced nothing to suggest that Medi-Cal might not have covered
the services necessitated
by MM's medical condition on October 11, 1988, had such services been rendered
by a properly licensed
health care professional at a clinic that was using Medi-Cal provider numbers
legally. Petitioner has never
alleged that the services sought by MM on October 11, 1988 were not covered
under the Medi-Cal
program.
I am aware (from my examination of the evidence regarding the convictions of
Petitioner's employers and
co-workers) of the possibility that the Clinic and its employees may not have
been authorized to provide
Medi-Cal covered services to MM. See, I.G. Ex. 2; P. Ex. 3. As discussed below,
MM did not receive the
quality of medical services to which she was entitled under Medi-Cal. It appears
highly unlikely that
Medi-Cal would have authorized or paid for Petitioner's delivery of services
if those services contravened
State law. However, the program-relatedness of a conviction does not turn on
whether the services at issue
were legal or appropriate under Medi-Cal, or whether they were delivered by
authorized program
providers. Therefore, these factors are not of sufficient legal significance
to support Petitioner's position.
The convictions of Petitioner's employers and co-workers for Medicaid fraud
committed during January to
November 1988 establish that the Clinic was accepting Medi-Cal patients and
illegally using physicians'
Medi-Cal provider numbers when Petitioner provided the treatment to MM on October
11, 1988. See, I.G.
Ex. 2; P. Ex. 3 at 1; Findings 17, 18. 7/ These Medicaid fraud convictions are
consistent with the common
sense connection between Petitioner's own conviction and the delivery of services
under the program. The
facts disclosed by the others' convictions supply a logical explanation for
why MM was able to present her
Medi-Cal card and secure treatment on October 11, 1988 from Petitioner, an employee
of the Clinic.
Petitioner has not offered a different explanation or attempted to prove that
the treatment provided to MM
had no relationship to MM's status under Medi-Cal or to MM's presentation of
her Medi-Cal card. The
evidence before me does not raise any inference that is simultaneously favorable
to Petitioner on the
program-relatedness issue and consistent with the other undisputed material
facts of record.
In addition, Petitioner has not disputed the I.G.'s evidence regarding Petitioner's
awareness of MM's Medi-
Cal status. Petitioner signed and annotated a Clinic form that showed MM's insurer
as "Medical." I.G. Ex.
5 at 2. Petitioner has not attempted to prove or argue that the Clinic dealt
with MM as a private-pay patient
even though MM had presented her Medi-Cal card in connection with her treatment
on October 11, 1988.
There is, for example, no evidence concerning any bill from the Clinic to MM
for the treatment provided
by Petitioner. Nor has Petitioner introduced any evidence of payments either
made by or owed by MM to
the Clinic for her October 11, 1988 visit. There is, likewise, no evidence that
the Clinic waived any fees
that might have been owed by MM for services provided by Petitioner.
Petitioner acknowledges that presentment of a Medi-Cal card by an individual
proves that an individual is
eligible for Medi-Cal benefits. P. Supp. Br. 3. Here, I find that Petitioner's
delivery of the services sought
by the card-holder at no apparent cost to the card-holder is also consistent
with the I.G.'s prima facie
showing of program-relatedness under section 1128(a)(1) of the Act. Because
the I.G. is not required to
prove the program-relatedness of Petitioner's conviction beyond a reasonable
doubt, the prima facie case of
program-relatedness is not created, as suggested by Petitioner, only at the
moment the provider seeks
reimbursement from the program. Id.. Petitioner's reliance on the absence of
a bill to Medi-Cal fails to
rebut the I.G.'s prima facie showing of program-relatedness.
C. The acts underlying Petitioner's conviction also impacted on Medicaid and
one of its recipients.
Petitioner is aware that the program-relatedness required by section 1128(a)(1)
of the Act may be satisfied
also by proof of "some impact on the Medicaid program." P. Br. 6.
However, Petitioner argues that the
program was not harmed by her practice of medicine without a license. P. Supp.
Br. 4. In Petitioner's
view, absent billing her services to Medi-Cal, her treatment of MM would have
had no impact on the
program. P. Br. 6 - 7. I disagree, finding the requisite impact or harm present
in this case.
Medicare and Medicaid were enacted to enable their beneficiaries and recipients
to receive health care
items or services of the types and quality specified by the programs. See generally
sections 1811 and 1901
of the Act. Federal law entitles all Medicaid recipients to receive items or
services that "shall not be less in
amount, duration, or scope than the medical assistance" each participating
State has made available to those
who are not receiving Medicaid benefits. Section 1902(a)(10)(B)(ii) of the Act.
Here, the State of
California, which participates in the Medicaid program, proscribed nurses like
Petitioner from providing
the medical services that formed the basis for Petitioner's conviction. Findings
9, 12.
Under Medicaid, reimbursement to service providers exists to further the health
delivery goals of the
program. The health and well-being of Medicaid recipients is a central concern
of the program. The
billing process is neither the essence of the program nor an end in itself.
Therefore, I find unreasonable
Petitioner's argument that, without participation in the program's billing process,
Petitioner's unlawful
treatment of MM had no impact on Medicaid.
Given Medicaid's requirements and the purpose for which Medicaid exists, Petitioner's
unlawful treatment
of MM on October 11, 1988 has already impacted upon Medicaid by derogating its
goals and the right of
its recipients to quality health care under the program. The harmful effects
of Petitioner's actions are not
minimized or eradicated by the absence of a bill to Medi-Cal. Under section
1128(a)(1) of the Act, it is not
necessary for Petitioner or anyone else to compound the harm Petitioner has
already caused Medicaid by
claiming payment from the program for services to MM that were illegal, substandard
as a matter of law,
and therefore non-reimbursable ab initio.
D. Neither Petitioner's acquittal nor any of her other arguments removes her
conviction from the purview
of section 1128(a)(1) of the Act.
Petitioner was acquitted of having conspired with others at the Clinic in examining,
diagnosing, and
treating patients, without the requisite license, on October 3, 1988, October
18, 1988, and November 8,
1988. Finding 19. Petitioner was never acquitted of any charge relating to her
treatment of MM on
October 11, 1988. Finding 20. 8/ There is no overlap between her conviction
for having treated MM on
October 11, 1988 without a license and her acquittal of the charge of conspiring
with others to treat
unnamed patients on other days without proper licensure. I therefore reject
Petitioner's argument that
"[t]he only reasonable interpretation of these acquittals is to show that
Ms. Jimenez was exonerated of all
program-related offenses." P. Br. 10.
I further reject Petitioner's argument that the I.G. has not proven that Petitioner's
conviction was program-
related because the I.G. relied on "unsubstantiated hearsay for which the
Petitioner was acquitted." P. Br.
11. Petitioner has not introduced a transcript of the criminal proceedings or
other evidence demonstrating
that the I.G. is using "unsubstantiated hearsay" or that such hearsay
resulted in any acquittal. It is well
settled that hearsay is not per se inadmissible in administrative proceedings.
Petitioner has not objected to
the admission of I.G. Ex. 1, containing the State's investigative reports. P.
Br. 2. The record fails to show
that the State's investigative reports are either unreliable or immaterial to
the underlying question of
whether Petitioner's conviction is related to the delivery of services under
Medicaid.
The State's investigative reports contain information material to several factual
contentions raised by
Petitioner. For example, the investigative reports contradict Petitioner's allegation
that the State decided to
arrest and prosecute her merely because she happened to have been an employee
of the Clinic at the time
of her co-workers' arrests pursuant to the State's sting operation. P. Hearing
Request at 2; I.G. Ex. 1. Also,
contrary to Petitioner's allegations to me, Petitioner was not hired by the
Clinic well after the State's Bureau
of Medicaid Fraud had concluded its investigation of the practices taking place
at the Clinic. Instead, the
record indicates that Petitioner was hired by the Clinic during the State's
investigation of Medi-Cal fraud,
that information regarding Petitioner's treatment of Medi-Cal patients (including
MM) was gathered during
the investigation, and that the acts resulting in Petitioner's conviction were
discovered during the State's
investigation. See I.G. Ex. 1 at 87.
The State's investigative report also fails to support Petitioner's contention
that "this case does not involve
government intervention preventing the actual billing." P. Br. 8 - 9. For
example, the State had among its
informants the individual who was asked by the Clinic to prepare its Medi-Cal
claims forms. I.G. Ex. 1 at
85 - 86. On November 16, 1988, the informant preparing the Clinic's Medi-Cal
billings alerted the State
that the Clinic had delivered to her approximately 800 claims to be billed under
Dr. EC's 9/ Medi-Cal
provider number for the period from October through November 3, 1988. I.G. Ex.
1 at 104. The parties'
evidence does not disclose whether the informant then prepared or submitted
such claims to Medi-Cal
during the State's investigation. However, Dr. EC, the physician identified
in MM's Clinic file and whose
provider number was to have been used for the submission of these claims, had
been notified by the State
during October 1988 that his license to practice medicine had been suspended,
and Dr. EC found another
physician to "cover" the Clinic thereafter. I.G. Ex. 1 at 92, 113;
I.G. Ex. 5 at 1. According to one of the
State's informants, it was customary for the Clinic to get rid of all existing
patient files every few months
and start new files on the same patients when the Clinic changed doctors. I.G.
Ex. 1 at 105 - 106. On
November 22, 1988, all the cabinets at the Clinic that contained old patients'
files were empty. Id.. By
December 8, 1988, the State's investigators were serving search warrants, arresting
suspects, and taking a
formal statement from Dr. EC. I.G. Ex. 1 at 113 - 16.
Contrary to Petitioner's argument that government intervention had nothing
to do with the absence of
Medi-Cal billing for Petitioner's treatment of MM on October 11, 1988, the chronology
of events reflected
in the State's investigative reports indicates that government intervention
in the Medi-Cal fraud
investigation, as well as in the suspension of Dr. EC's license, may have contributed
significantly to the
absence of any Medi-Cal billing for MM's treatment. The records of the State's
investigation also convince
me that the absence of a Medi-Cal reimbursement claim for the services Petitioner
provided MM on
October 11, 1988 does not prove, as Petitioner alleges, that these services
were not delivered under
Medicaid. See P. Br. 9.
E. Excluding Petitioner under section 1128(a)(1) is consistent with the remedial
purpose of the Act.
In upholding the five-year exclusion imposed and directed by the I.G. under
section 1128(a)(1) of the Act,
I note that the law has two purposes. While one purpose of section 1128 of the
Act is to protect Medicare
and Medicaid from fraud and abuse, a second, equally important purpose of the
Act is to "protect the
beneficiaries of those programs from incompetent practitioners and from inappropriate
or inadequate care."
S. Rep. No. 109, 100th Cong., 1st Sess. 1 (1987); See 57 Fed. Reg. 3298 (1992).
Thus, excluding
Petitioner on the facts of this case is consistent with the remedial purpose
of the Act.
In addition, limiting exclusions under section 1128(a)(1) of the Act to those
situations involving only
billing offenses sends the wrong message to health care providers, i.e., that
health care providers are at
liberty to subject Medicare beneficiaries and Medicaid recipients to whatever
illegal, harmful, or
substandard medical services they wish so long as, by the time of the exclusion
proceedings, Medicare or
Medicaid has not received a bill for such services. Such an outcome would frustrate
the federal interest in
safeguarding the health and safety of those individuals for whose benefit section
1128 was enacted.
Whether or not services provided to beneficiaries or recipients are charged
to the programs, Medicare
beneficiaries and Medicaid recipients who seek services by use of their program
cards should not be put at
the mercy of any unscrupulous, careless, or irresponsible health care practitioner
who, for whatever reason,
provides illegal, harmful, or substandard treatment to them. Moreover, even
such "free" substandard,
harmful, or illegal medical services are likely to have a significant fiscal
impact on the programs when the
program beneficiaries or recipients require treatment for resultant complications
or overlooked ailments.
II. PETITIONER IS SUBJECT TO A CONCURRENT FIVE-YEAR EXCLUSION AS MANDATED BY
SECTION 1128(a)(2) OF THE ACT.
I also affirm the five-year exclusion imposed and directed by the I.G. on the
independent and alterative
basis of section 1128(a)(2) of the Act. As explained below, summary disposition
on this issue is
appropriate given the undisputed material facts of record, the legal conclusions
resulting from these
undisputed facts, Petitioner's receipt of timely notice concerning the issue,
and the absence of any
meritorious objection to my deciding the issue in the present proceedings. In
addition, I find that deciding
the issue under the parties' pending cross-motions for summary judgment serves
the interest of judicial
economy and helps ensure that, in the future, Petitioner will not be subjected
to an inequitable lengthening
of her exclusion under section 1128(a)(2) of the Act.
A. Petitioner's conviction is related to the abuse or neglect of a patient
in connection with the delivery of a
health care item or service.
The extent of my foregoing discussions, as well as the parties' very considerable
efforts in arguing their
respective views on program-relatedness, reflect the burden of applying section
1128(a)(1) of the Act to a
set of facts that fit squarely within the ambit of section 1128(a)(2) of the
Act. The latter provision of the
statute mandates a minimum exclusion period of no less than five years also.
However, under section
1128(a)(2) of the Act, an exclusion is based on any conviction relating to patient
abuse or neglect.
Sections 1128(a)(2) 10/ and 1128(c)(3)(B) of the Act.
Section 1128(a)(2) of the Act does not require that a health care item or service
be delivered under
Medicare or Medicaid, and, as explained in the regulations,
The conviction need not relate to a patient who is a program beneficiary.
42 C.F.R. 1001.101(b). For an individual or entity to be subject to an exclusion
under section 1128(a)(2),
that individual or entity need only have been convicted of a criminal offense
related to the abuse or neglect
of patients in connection with the delivery of a health care item or service.
Id..
Here, I find that in lieu of or in addition to having relied on section 1128(a)(1)
of the Act in the original
notice of exclusion, the I.G. could have imposed and directed a five-year exclusion
against Petitioner under
section 1128(a)(2) of the Act. As a matter of law, Petitioner's conviction for
practicing medicine on a
patient without a license satisfies the requirements of the Act.
A patient need not receive pommeling or undergo torture to be found "abused"
or "neglected." Here, it is
undisputed that Petitioner, an R.N., made a diagnosis, delivered a health care
service, prescribed
medication, and directed that a co-worker administer medication that was not
ordered by a physician or any
other professional responsible for treating MM's medical condition under State
law. Findings 2 - 9, 21.
Petitioner endangered MM's life and health by treating MM without the medical
training, qualifications, or
experience deemed necessary by the State. Petitioner also caused another unlicensed
and unqualified
employee of the Clinic to endanger MM's life and health by injecting MM with
penicillin. Findings 4, 8.
In short, on October 11, 1988, Petitioner abused or neglected the health and
safety of patient MM, and,
therefore, her conviction for treating MM on that date is related to patient
abuse or neglect.
On October 1, 1993, I asked the parties to brief the issue of whether I might
sustain the exclusion against
Petitioner based on section 1128(a)(2) of the Act where the I.G. relied only
on section 1128(a)(1) of the
Act in her notice of exclusion.
Petitioner argued that I lack the authority to decide the case under section
1128(a)(2) and, also, that her
conviction is not related to patient abuse or neglect. P. Supp. Br. 5 - 6. Thereafter,
Petitioner waived her
right to submit a supplemental reply brief to present additional arguments.
The I.G. found no specific regulation on the issue of my authority to apply
section 1128(a)(2) as a basis for
Petitioner's exclusion where section 1128(a)(2) was not identified in the I.G.'s
notice of exclusion as a basis
for Petitioner's exclusion. The I.G. has moved to supplement the notice of exclusion.
Even though
Petitioner has not formally objected to the I.G.'s motion, I construe her argument
against my considering
section 1128(a)(2) of the Act as an objection to the I.G.'s motion.
B. I am denying the I.G.'s motion to supplement the notice of exclusion as proposed
in I.G. Ex. 12.
The I.G. proposes to supplement her notice of exclusion in a manner that is unclear.
The I.G. provided an undated copy of her proposed supplemental notice of exclusion
as an exhibit (I.G. Ex.
12) and asked in her motion that the minimum five-year exclusion mandated by
section 1128(a)(2) of the
Act take effect 20 days after I grant the motion to supplement. I.G. Supp. Br.
4 at n. 5. However, the
language of the I.G.'s proposed supplemental notice suggests that the new exclusion
will be coterminous
with the exclusion the I.G. had imposed earlier under section 1128(a)(1) of
the Act. I.G. Ex. 12 at 1. 11/
As grounds for imposing the amended exclusion, the I.G.'s proposed notice cites
the same conviction as the
one identified in the I.G.'s October 15, 1992 notice of exclusion.
Petitioner has already been under an exclusion since November 1992. The issuance
of the I.G.'s October
15, 1992 notice of exclusion caused Petitioner's exclusion to commence 20 days
after the date of that letter.
It is not clear why, if the new exclusion is to be coterminous with the existing
one, the I.G. is also seeking
leave to have the new exclusion take effect 20 days after I grant the I.G.'s
motion. I am concerned that my
granting the I.G.'s motion may in fact lengthen Petitioner's exclusion period
beyond what is stated in the
I.G.'s October 15, 1992 notice of exclusion and the I.G.'s proposed amended
notice.
Even though I find it appropriate to consider the present case under section
1128(a)(2) of the Act, my
granting the I.G.'s motion may create too many collateral issues of law. Such
issues may include, for
example, whether to treat the period of time between November 1992 and a new
effective date for the
proposed exclusion as a legal nullity or as a de facto lengthening of the minimum
five-year exclusion as
specified by the Act. The record suggests no basis for increasing the minimum
exclusion period of five
years pursuant to any "aggravating" factor enumerated in the regulations.
42 C.F.R. 1001.102(b).
Moreover, however one characterizes the period between November 1992 and the
present, the I.G.'s
supplemental notice cannot effectively restore to Petitioner the time between
November 1992 and the
present.
The ambiguities inherent in the I.G.'s motion and proposed notice may produce
results that are not
equitable to Petitioner and that are not likely to advance the interest of judicial
economy. I am therefore
denying the I.G.'s motion.
C. I have the authority to find that the five-year exclusion imposed and directed
by the I.G. is sustainable
under section 1128(a)(2) of the Act.
Petitioner argues that I am precluded by the regulations at 42 C.F.R. 1005.4(c)
from considering the
applicability of section 1128(a)(2) in the present case. P. Supp. Br. 5 - 6.
This regulation states,
The ALJ does not have authority to - (5) Review the exercise of discretion
by the OIG to exclude an
individual or entity under section 1128(b) of the Act, or determine the scope
or effect of the exclusion.
42 C.F.R. 1005.4(c)(5) (emphasis added). This regulation is inapposite, for
it refers to the I.G.'s
discretion to impose or not impose the permissive exclusions identified in section
1128(b) of the Act. The
regulation does not speak to the mandatory exclusions directed by section 1128(a)(1)
and (2) of the Act,
which the Secretary and her delegates have no discretion to waive.
I have the authority to consider the mandatory provisions of section 1128(a)(2)
in deciding the legal
validity of the five-year exclusion the I.G. directed and imposed against Petitioner
under section 1128(a)(1)
of the Act. The issue in this case is not limited to the four corners of the
I.G.'s notice of exclusion. I have
jurisdiction to decide the broader question of,
whether:
(i) The basis for the imposition of the sanction exists ....
42 C.F.R. 1001.2007(a)(1)(emphasis added). Upon proper notice to the parties,
"[a] hearing under this
part is not limited to specific items and information set forth in the notice
letter to the petitioner...." 42
C.F.R. 1005.15(f)(1). Also, I have the authority to regulate the course of the
hearing and consider other
matters that may be expeditious to the disposition of the proceedings. 42 C.F.R.
1005.4(b).
Here, the I.G.'s motion to supplement her notice to Petitioner reflects the
I.G.'s determination that section
1128(a)(2) of the Act should be used as an additional and independent basis
for imposing an exclusion
against Petitioner. The I.G.'s motion provided notice of the issue to Petitioner.
I, too, have given the
parties the opportunity to brief whether the present exclusion is sustainable
under section 1128(a)(2) of the
Act.
Moreover, the nature of Petitioner's conviction and its relationship to the
elements of section 1128(a)(2) are
clear from the undisputed facts before me. There is no legal or factual support
for Petitioner's conclusive
statement that her conviction is unrelated to patient abuse or neglect. P. Supp.
Br. 6. She incorrectly
suggests that patients may not be considered abused or neglected unless they
have been physically
assaulted, beaten, slapped, shoved, or otherwise brutalized. Id.. I find this
interpretation to be facially
illogical and contrary to the intent of Congress in enacting section 1128(a)(2),
i.e., the protection of the
health and safety of program beneficiaries and recipients.
At this time, not adjudicating the issue of whether Petitioner's conviction
forms an alternate basis for her
five-year exclusion would generate unnecessary proceedings in the future and
could cause Petitioner
irreparable injury. Petitioner has been excluded since November, 1992. If I
limited my decision to section
1128(a)(1), and if Petitioner were to prevail on her position that she is not
subject to an exclusion under
that section of the Act, Petitioner will have suffered the effects of the section
1128(a)(1) exclusion until the
date it is overturned, and the I.G. must again impose and direct an exclusion
of not less than five more
years against her under section 1128(a)(2) of the Act. Petitioner should not
be subjected to the possibility
of undergoing a second mandatory exclusion arising from the same conviction.
In addition, section 1128(a) exists for the protection of Medicare and Medicaid
and their beneficiaries and
recipients. In the adjudicative process, administrative law judges must help
ensure that section 1128 of the
Act is applied properly. Thus, when, as here, the basis for mandatory exclusion
as set forth in the I.G.'s
original notice is clearly under-inclusive, and the I.G. has moved to augment
the basis for the exclusion, I
have the authority to apply another mandatory provision of section 1128(a) to
safeguard the interests of the
programs and those served by the programs, to expedite a resolution of all potential
issues of record, and to
minimize the risk of unreasonable consequences to Petitioner.
For all of the foregoing reasons, I conclude that both sections 1128(a)(1)
and (a)(2) of the Act constitute
proper alternative and independent bases for the five-year exclusion imposed
and directed by the I.G. in the
October 15, 1992 notice letter.
CONCLUSION
Under section 1128(a)(1) of the Act and, alternatively, under section 1128(a)(2)
of the Act, I affirm the
five-year exclusion imposed and directed against Petitioner by the I.G.. Said
exclusion took effect 20 days
after the I.G.'s October 15, 1992 notice letter and the mandatory period of
exclusion, under either section of
the Act, will not end until five years from the date the exclusion first took
effect.
Mimi Hwang Leahy
Administrative Law Judge
1. In this Decision, I refer to all programs from which Petitioner has been
excluded, other than Medicare,
as "Medicaid."
2. The parties have submitted extensive argument. I refer to their submissions
as: I.G.'s Motion For
Summary Disposition And Memorandum In Support Of The I.G.'s Motion for Summary
Disposition (I.G.
Br. (page)); Petitioner's Motion In Opposition Of Summary Disposition And Memorandum
In Opposition
Of Summary Disposition (P. Br. (page)); I.G. Reply Brief (I.G. R. Br. (page));
I.G.'s Supplemental Motion
For Summary Disposition (I.G. Supp. Br. (page)); Petitioner's Supplemental Brief
(P. Supp. Br. (page));
and the I.G.'s Response To Petitioner's Supplemental Motion For Summary Disposition
(I.G. R. Supp. Br.
(page)).
3. The I.G. submitted 12 exhibits. I refer to the I.G.'s exhibits as I.G. Ex(s).
(number) at (page). The I.G.
withdrew I.G. Exs. 7 and 9. Petitioner objected to I.G. Ex. 2 at 19 - 24 and
I.G. Ex. 4 at paragraph 9 (P. Br.
2 - 3). I am denying Petitioner's objections. With regard to Petitioner's objection
to I.G. Ex. 2 at 19 - 24,
which relates to the conviction of other individuals who operated or worked
at the Clinic, I find this
evidence to be relevant here as the regulations at 42 C.F.R. 1005.17(g) specify
that evidence of acts other
than those at issue in a case are admissible to show motive, opportunity, intent,
knowledge, preparation
identity, lack of mistake, or existence of a scheme. I find the information
provided in I.G. Ex. 4, at
paragraph 9, to be relevant here, as discussed infra. Therefore, I admit into
evidence I.G. Exs. 1, 2, 3, 4, 5,
6, 8, 10, 11, and 12. Petitioner submitted three exhibits. I refer to Petitioner's
exhibits as P. Ex(s).
(number) at (page). I admit into evidence P. Exs. 1, 2, and 3.
4. At P. Br. 3, Petitioner stated specifically that she did not contest the
I.G.'s findings of fact and
conclusions of law as set forth at I.G. Br. 3 - 7, numbered paragraphs 1 - 7,
9 - 13, and 18 - 24. I am not
adopting these findings in their entirety. Instead, I am including only those
stipulated findings I find
relevant to my Decision. Moreover, I am conforming those findings to the style
and format of my
Decision.
5. To protect this patient's privacy, I will refer to the patient by her initials only.
6. The record of the criminal proceedings does not state specifically that
the individuals convicted of the
specified crimes against Medi-Cal were Petitioner's employers and co-workers
at the Clinic. However, the
I.G. has so described them, and Petitioner does not dispute the I.G.'s description.
I.G. Br. 5 - 6; P. Br. 2.
7. Petitioner objects to the I.G.'s introduction of evidence relating to the
conviction of other individuals
who operated or worked at the Clinic. P. Br. 2, 12. However, the regulations
at 42 C.F.R. 1005.17(g)
specify in relevant part:
Evidence of ... acts others than those at issue in the instant case is admissible
in order to show motive,
opportunity, intent, knowledge, preparation, identity, lack of mistake, or existence
of a scheme.
8. Count I of the original Indictment against Petitioner and four co-defendants
contains only a single
mention of "October 11, 1988" and the patient MM. I.G. Ex. 2 at 9
("Overt Act No. 22"). The elements of
the offense alleged in "Overt Act No. 22" do not reflect any allegation
of Medicaid fraud. Moreover,
"Overt Act No. 22" alleged an offense by Lee Daoun, who had a separate
trial, and the jury instructions
applicable to the charges against Petitioner made no mention of MM or October
11, 1988 under Count I.
I.G. Ex. 10; see also I.G. Ex. 3 at 2. Therefore, I conclude that Petitioner
was not acquitted of any charge
relating to her treatment of MM on October 11, 1988.
9. To protect this physician's privacy, I will use his initials only.
I note that Dr. EC was identified in the Clinic's records as the physician in MM's case. I.G. Ex. 5 at 1.
10. "Any individual or entity that has been convicted, under Federal or
State law, of a criminal offense
relating to neglect or abuse of patients in connection with the delivery of
a health care item or service."
11. This exclusion, which becomes effective 20 days from the date of this letter,
will run concurrently
with your existing exclusion under section 1128(a)(1) of the Act, and be coterminous
with it. I.G. Ex. 12 at
1.