$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Joshua Yaw Boateng, D.P.M.,
Petitioner,
- v. -
The Inspector General.
DATE: March 27, 1995
Docket No. C-94-399
Decision No. CR365
DECISION
By letter dated June 27, 1994, the Inspector General (I.G.) of the
United States Department of Health and Human Services (DHHS)
notified Joshua Yaw Boateng, D.P.M. (Petitioner), that he 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 he was being excluded as a result of his
conviction of a criminal offense related to the delivery of an item
or service under Medicaid. The I.G. advised Petitioner that the
exclusion of individuals convicted of such program-related offenses
is mandated by section 1128(a)(1) of the Social Security Act (Act).
The I.G. further advised Petitioner that for exclusions imposed
pursuant to section 1128(a)(1) of the Act, section 1128(c)(3)(B)
requires a five-year minimum period of exclusion.
Petitioner filed a timely request for review of the I.G.'s action.
During a prehearing conference conducted by me on August 19, 1994,
the parties agreed to proceed by written submissions. Accordingly,
I established a schedule for the parties to file briefs and
documentary evidence.
On October 4, 1994, the I.G. filed a motion for summary disposition
accompanied by a brief and eight exhibits.
I identify these exhibits as I.G. Ex. 1 through 8.
By letter dated October 21, 1994, Petitioner requested an in-person
hearing. Petitioner stated that he wished "to be heard personally
(rather than by affidavit)." Petitioner argued that
characteristics of his speech, his articulation, and his response
to complex sentences in English may "have substantial bearing upon
the manner in which the Administrative Law Judge may desire to
exercise whatever discretion he possesses in disposing of this
case." The I.G. opposed Petitioner's request for an in-person
hearing on the grounds that there existed no genuine issues of
material fact which justified my holding such a hearing.
In order to allow Petitioner an opportunity to fully present his
case, I granted his request to make a personal statement before me.
However, I determined that, under the circumstances of this case,
a hearing by telephone would be appropriate. I also determined
that the parties would continue to adhere to the briefing schedule
established by me. November 1, 1994 Order and Notice of Telephone
Hearing.
Petitioner subsequently filed a responsive brief accompanied by
three exhibits. I identify these as P. Ex. 1 through 3. The I.G.
filed a reply and Petitioner filed a sur-reply.
On December 14, 1994, I conducted a hearing by telephone. The
parties agreed not to file posthearing briefs.
In his responsive brief, Petitioner made some objections to I.G.
Ex. 3 and I.G. Ex. 4 which go to the weight that I should give
these exhibits. Since Petitioner did not contest the authenticity
or relevancy of these or any other exhibits offered by the I.G., I
admit I.G. Ex. 1 through 8 into evidence. The I.G. did not object
to any of the exhibits offered by Petitioner, and I admit P. Ex. 1
through 3 into evidence.
I have carefully considered the applicable law, the evidence, and
the parties' arguments. I conclude that Petitioner is subject to
the minimum mandatory exclusion provisions of sections 1128(a)(1)
and 1128(c)(3)(B) of the Act, and I affirm the I.G.'s determination
to exclude Petitioner from participation in Medicare and Medicaid
for a period of five years.
FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCLs)
1. At all times relevant to this case, Petitioner was a licensed
podiatrist in the Commonwealth of Pennsylvania. I.G. Ex. 3.
2. On August 17, 1992, the Pennsylvania Attorney General's Office
filed a criminal complaint alleging that Petitioner had: (1)
knowingly submitted false information for the purpose of obtaining
greater compensation than that to which he was legally entitled for
furnishing services under Medicaid; (2) submitted claims which
misrepresented the description of services provided; and (3)
submitted claims for services which were not rendered to a
recipient. In an attached affidavit, the Attorney General's Office
alleged that there was probable cause to arrest Petitioner for
Medicaid Fraud. I.G. Ex. 1.
3. The Attorney General's Office subsequently filed a Bill of
Information charging Petitioner with 126 counts of Medicaid Fraud.
The Bill of Information alleged that Petitioner knowingly submitted
Medicaid claims for a specific surgical procedure which was not
rendered as claimed. I.G. Ex. 2, 3.
4. Petitioner pled no contest to 78 counts of Medicaid Fraud in
the Court of Common Pleas of Dauphin County, Pennsylvania (the
court). I.G. Ex. 4, 5, 7.
5. Based on its acceptance of Petitioner's nolo contendere plea,
the court sentenced Petitioner to pay costs totaling $16,224 and
restitution with interest in the amount of $16,224. The court also
sentenced him to probation for up to 23 months and required him to
perform 100 hours of community service. I.G. Ex. 6.
6. The Secretary of DHHS has delegated to the I.G. the authority
to determine, impose, and direct exclusions pursuant to section
1128 of the Act. 48 Fed. Reg. 21662 (1983).
7. Petitioner's nolo contendere plea, and the court's acceptance
of that plea, constitute a conviction within the meaning of
sections 1128(a)(1) and 1128(i) of the Act. FFCLs 1 - 5.
8. 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. FFCLs 1 - 5, 7.
9. Pursuant to section 1128(a)(1) of the Act, the I.G. is required
to exclude Petitioner from participating in Medicare and Medicaid.
10. The minimum mandatory period for an exclusion imposed pursuant
to section 1128(a)(1) of the Act is five years. Act, section
1128(c)(3)(B).
11. The I.G. properly excluded Petitioner from participation in
Medicare and Medicaid for a period of five years pursuant to
sections 1128(a)(1) and 1128(c)(3)(B) of the Act. FFCLs 1 - 10.
12. Neither the I.G. nor an administrative law judge has the
authority to reduce a five-year minimum exclusion mandated by
sections 1128(a)(1) and 1128(c)(3)(B) of the Act.
13. There is no equitable relief from the minimum mandatory
exclusion provisions of sections 1128(a)(1) and 1128(c)(3)(B) of
the Act.
DISCUSSION
1. Petitioner was convicted of a criminal offense related to the
delivery or an item or service under Medicaid.
The material facts of this case are not in dispute. The evidence
adduced by the I.G., and not disputed by Petitioner, amply
demonstrates that Petitioner was convicted of a criminal offense
related to the delivery or an item or service under Medicaid,
within the meaning of section 1128(a)(1) of the Act.
The first requirement that must be satisfied in order to establish
that the I.G. has the authority to exclude Petitioner under section
1128(a)(1) of the Act is that Petitioner must have been convicted
of a criminal offense. Petitioner does not dispute that he was
convicted of a criminal offense within the meaning of the Act. 2/
The undisputed facts establish that Petitioner entered a nolo
contendere plea to the offense of Medicaid Fraud, and that the
Court of Common Pleas of Dauphin County, Pennsylvania, accepted
Petitioner's plea. FFCLs
2 - 5. The Act defines the term "convicted of a criminal offense"
to include those circumstances in which a plea of nolo contendere
by an individual has been accepted by a federal, State, or local
court. Act, section 1128(i)(3). Therefore, I conclude that
Petitioner was convicted of a criminal offense within the meaning
of sections 1128(a)(1) and 1128(i) of the Act.
I further find that the second requirement of section 1128(a)(1) --
that the criminal offense leading to the conviction must be related
to the delivery of an item or service under Medicare or Medicaid --
has also been met. Petitioner does not dispute that he was
convicted of Medicaid Fraud and that this criminal offense relates
to the delivery of an item or service under Medicaid. The I.G.
offered evidence showing that Petitioner was convicted of 78 counts
of Medicaid Fraud based on charges that he knowingly filed false
Medicaid claims. FFCLs 2 - 5. A conviction for filing false
Medicaid claims is a conviction of an offense related to the
delivery of an item or service under Medicaid. Jack W. Greene, DAB
1078 (1989), aff'd sub nom Greene v. Sullivan, 731 F.Supp. 839
(E.D. Tenn. 1990). I find that the undisputed facts establish that
Petitioner was convicted of an offense which is related to the
delivery of an item or service under Medicaid, within the meaning
of section 1128(a)(1) of the Act.
2. A minimum mandatory five-year exclusion is required by law.
Section 1128(a)(1) of the Act requires exclusions for individuals
convicted of offenses related to the delivery of items or services
under Medicaid. The law not only mandates exclusions for
individuals convicted of program-related offenses, it requires that
the term of such exclusions be for at least five years.
Congressional
intent is clear from the express language of section
1128(c)(3)(B)of the Act:
In the case of an exclusion under subsection (a), the minimum
period of exclusion shall be not less than five years . . .
Since Petitioner was convicted of a criminal offense and it was
related to the delivery of an item or service under Medicaid within
the meaning of section 1128(a)(1) of the Act, the I.G. is required
by law to exclude Petitioner for a minimum of five years.
3. I do not have the authority to grant Petitioner the equitable
relief he seeks.
Petitioner does not dispute that the Act mandates exclusion for at
least five years following conviction of an offense related to the
delivery of an item or service under Medicaid. However, Petitioner
argues that "administrative adjudication resembles court
decision-making . . . and, therefore, logically, entails a certain
amount of inherent discretion and equitable power." Petitioner's
sur-reply at p. 2. According to Petitioner, basic precepts of
administrative law dictate that "even where rules preclude
discretion (as here, where exclusion is mandatory upon a finding of
conviction), there must be `needed individualizing.'" Petitioner's
sur-reply at p. 2. Petitioner urges that the task of the
administrative law judge is to "harmonize" the demands of the
statute and regulations and the competing demands of "discretion,
equity, and individualizing of disposition." Petitioner's
responsive brief at p. 6.
Petitioner states that in deciding this case I should consider
certain "individualized concerns." Petitioner's responsive brief
at pp. 6 - 7. According to Petitioner, these "individualized
concerns" include the fact that he did not understand the full
meaning of the regulations pertaining to the procedure code
Medicaid required him to use in billing for his services.
Petitioner asserts that since English is his second language, he
did not understand the punctuation used in the Medicaid regulations
and, as a result, he mistakenly believed that he was billing under
the proper procedure code. Petitioner argues also that, during the
criminal proceedings which led to the conviction upon which his
exclusion is based, he was represented by a lawyer who provided
poor legal advice. As a result of this poor legal advice,
Petitioner contends that his nolo contendere plea was not an
informed plea. In addition, Petitioner states that he was denied
access to the services of a public defender because he was misled
into believing that he was not eligible for these legal services.
Petitioner states that this forum is the "practicable forum of last
resort" because he does not have sufficient funds to pursue relief
under the Post-Conviction Remedies Act. Petitioner's responsive
brief at pp. 7 - 8; Petitioner's hearing request.
Petitioner emphasizes that he is not challenging the I.G.'s
authority to exclude him. In addition, Petitioner states that his
arguments are not a collateral attack on the underlying conviction.
Petitioner does not object to the five-year exclusion "being
imposed and being made of record." Petitioner's sur-reply at p. 3.
Instead, Petitioner states that what he is seeking is the exercise
of the administrative law judge's equitable discretion after the
exclusion is imposed. In particular, Petitioner urges that the
administrative law judge may exercise equitable discretion to take
either or both of the following actions:
(1) grant Petitioner a stay of the exclusion for such period
of time as the administrative law judge finds appropriate;
(2) grant Petitioner probation upon such conditions as the
administrative law judge finds appropriate.
Petitioner states that these "suggestions" are not made to
circumvent the mandatory exclusion requirement, but that they are
made "in search of equity, as an amelioration of the harsh results
of law." Petitioner's responsive brief at pp. 8 - 9.
I do not have the authority to grant the equitable relief sought by
Petitioner. An administrative law judge's jurisdiction in hearings
regarding exclusions imposed pursuant to section 1128(a) of the Act
is limited to those issues specified in the regulations.
Specifically, 42 C.F.R. 1001.2007(a)(1) restricts the issues
that an administrative law judge may hear to the issues of
"whether: (i) [t]he basis for the imposition of the sanction
exists, and (ii) [t]he length of the exclusion is unreasonable."
The regulations provide also that:
When the [I.G.] imposes an exclusion under subpart B of this
part for a period of 5 years, paragraph (a)(1)(ii) of this section
will not apply.
42 C.F.R. 1001.2007(a)(2).
In the instant case, the I.G. has imposed a five-year minimum
mandatory exclusion under Subpart B of the regulations. 3/ Thus,
the only issue I may consider is whether the basis for the
imposition of the exclusion exists. 4/ There is nothing in the law
or regulations which either states or suggests that the Secretary
has delegated to administrative law judges the authority to grant
the equitable relief sought by Petitioner.
There is no equitable relief from the minimum mandatory exclusion
provisions of sections 1128(a)(1) and 1128(c)(3)(B) of the Act.
Mark Gventer, D.P.M., DAB CR173 (1992). The equities that may be
present in this case are not relevant with respect to the issue of
whether there is a basis for the imposition of a five-year
exclusion under sections 1128(a)(1) and 1128(c)(3)(B) of the Act.
Accordingly, I do not have the authority to "stay" an exclusion, to
grant "probation," or to grant any other equitable relief.
CONCLUSION
Based on the law and the undisputed material facts in this case, I
conclude that the I.G. properly excluded Petitioner from Medicare
and Medicaid pursuant to section 1128(a)(1) of the Act. I further
conclude that the five-year minimum period of exclusion imposed and
directed against Petitioner is mandated by section 1128(c)(3)(B) of
the Act. In addition, I conclude that I do not have the authority
to grant the equitable relief sought by Petitioner.
Joseph K. Riotto
Administrative Law Judge
1. In this decision, I refer to all programs from which
Petitioner has been excluded, other than Medicare, as "Medicaid."
2. In his letter requesting a hearing, Petitioner stated that
he did not concede that he was, in fact, convicted of a criminal
offense. He stated that he was never informed by the judge hearing
the criminal case upon which his exclusion is based that he was
found guilty, and he did not understand that he was convicted.
While he was aware that the court sentenced him, he did not
understand that this implied conviction. However, in his
responsive brief, Petitioner admitted that he "submitted a plea of
nolo contendere that was accepted by the court, which the statute
addresses as the equivalent of a conviction." Petitioner's
responsive brief at p. 6.
3. Subpart B of the regulations provides for a mandatory
exclusion for a minimum period of five years for individuals
convicted of criminal offenses related to the delivery of an item
or service under Medicare or Medicaid.
4. If the I.G. had imposed an exclusion against Petitioner
under Subpart B for a period longer than five years, then there
would exist an issue as to the reasonableness of that part of the
exclusion which exceeded five years. In that event, an
administrative law judge would be permitted to consider the
presence of aggravating or mitigating factors specified at 42
C.F.R. 1001.102.