$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
The Inspector General,
- v. -
Jesusa N. Romero, M.D., Respondent.
DATE: June 5, 1995
Docket No. C-94-379
Decision No. CR380
DECISION
In a determination letter (Notice) dated May 12, 1994, the
Inspector General (I.G.) proposed to impose against Respondent
civil monetary penalties of $115,500, an assessment of $113,280
(which in combination with the penalties totals $228,780), and a
five-year exclusion. The I.G.'s Notice was based upon her
determination that Respondent had presented or caused to be
presented 77 false claims representing 231 line items or services
to the California Department of Health Services (Medi-Cal) 1/ for
services provided by Respondent during a period in which Respondent
knew, had reason to know, or should have known that she was
excluded from participation in Medi-Cal. The I.G. alleged that by
presenting these claims Respondent violated section 1128A of the
Social Security Act (Act) and its implementing regulations at 42
C.F.R. 1003.100 et seq. By letter of June 20, 1994, Respondent
requested a hearing before an administrative law judge. The case
was assigned to me for a hearing and a decision.
On July 27, 1994, Respondent made a motion for summary judgment,
alleging that the I.G. did not have a basis upon which to sanction
her. In a September 16, 1994 Ruling, I denied that motion and set
the case for hearing. 2/ I conducted an in-person hearing in Los
Angeles, California on October 31, 1994. Based on the entire
record before me, 3/ I now conclude that the I.G. has no basis or
authority to impose penalties, an assessment, or an additional
period of exclusion against Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Beginning in 1980, and continuing until her relocation to
California in 1988, Respondent practiced medicine in Louisiana.
Tr. at 166-167, 171.
2. In 1987, Respondent was convicted of 28 counts of Medicaid
fraud in Louisiana, based on her billings to Louisiana Medicaid.
State of Louisiana v. Romero, 574 So. 2d 330 (La. 1990) aff'g 533
So. 2d 1264 (La. App. 3d Cir. 1988), reh'g denied.
3. By letter of January 11, 1988, the Louisiana Department of
Health and Human Resources (LDHHR), the State agency in Louisiana
responsible for excluding providers from Louisiana Medicaid,
suspended Respondent from Louisiana Medicaid for five years,
effective January 26, 1988. I.G. Ex. 19.
4. For the purposes of the Act and of the regulations applicable
to this case, the terms exclusion and suspension denote the same
action; barring an individual or entity from submitting claims for
reimbursement from Medicare or Medicaid for items or services
provided to Medicare beneficiaries or Medicaid recipients which
would otherwise be reimbursable by these programs.
5. There is no information of record to indicate whether
Respondent ever appealed the determination of the LDHHR to suspend
her for five years.
6. By letter of May 18, 1988, the I.G. notified Respondent that,
based on her conviction of a criminal offense related to Medicaid
and pursuant to section 1128(a) of the Act, she would be excluded
for a period of 10 years from participation in Medicare and any
State health care program as defined in section 1128(h) of the Act.
I.G. Ex. 1 at 1.
7. The May 18, 1988 letter advised Respondent: (1) that no
payment would be made to Respondent by Medicare or a State health
care program for any items or services (other than an emergency
item or service) which she furnished, ordered, or prescribed during
her period of exclusion; (2) that the I.G. would notify the
appropriate State or local authority having responsibility for her
licensing or certification and would request that authority to
invoke sanctions according to State law or policy; (3) that if,
after the effective date of the exclusion (20 days after May 18,
1988 (June 7, 1988)), Respondent submitted claims for items or
services furnished by her, she might be subject to a civil monetary
penalty under 42 U.S.C. 1320a-7a (section 1128A of the Act)
i.e., an assessment of not more than twice the amount claimed and
a penalty of not more than $2000 per item or service claimed; and
4) that the I.G. was required to notify the appropriate State
agency of Respondent's exclusion, and that the State agency was
required to exclude Respondent for 10 years, the period of
Respondent's Medicare exclusion. I.G. Ex. 1 at 1-2.
8. Also by letter of May 18, 1988, the I.G. notified the LDHHR of
Respondent's 10-year exclusion. The I.G. directed the LDHHR to
exclude Respondent from Louisiana Medicaid for the same period.
I.G. Ex. 2.
9. Respondent did not pursue an appeal of the exclusion imposed
against her by the I.G.'s notice letter of May 18, 1988. Jt. Stip.
at 4.
10. There is no information of record to indicate whether LDHHR
ever conformed to the I.G.'s 10-year exclusion by revising the
five-year suspension it imposed against Respondent on January 11,
1988.
11. The I.G. prepares and disseminates to all State Medicaid
agencies a cumulative national list of providers that the I.G. has
excluded from participating in Medicare, titled the Cumulative
Sanction Report (CSR). The I.G. prepares and disseminates also a
monthly list of providers that the I.G. has excluded from
participating in Medicare. I.G. Ex. 16; Tr. at 132.
12. The CSR identifies the provider by name, date of birth,
specialty, and address, and also indicates the basis for the
exclusion, the date of the notice of exclusion, and the period of
exclusion. I.G. Ex. 16.
13. The copy of the CSR reflecting sanctions in effect as of
October 31, 1988 contained the Respondent's name -- Jesusa N.
Romero, her specialty -- obstetrician, her address -- 120 W. 4th
Street Suite 1, DeQuincy, LA 70633, the basis of her exclusion --
section 1128(a)(1) of the Act, the date of the notice of exclusion
-- May 18, 1988, and the period of her exclusion -- 10 years. I.G.
Ex. 16.
14. Medi-Cal received the CSR containing the information
pertaining to Respondent by December 1988. I.G. Ex. 17.
15. Respondent moved to California in 1988 and began practicing
medicine. Initially, Respondent treated Medi-Cal patients but did
not bill Medi-Cal for their treatment. Tr. at 171, 201.
16. On February 9, 1990, Respondent submitted an application to be
assigned a Medi-Cal provider number. I.G. Exs. 10, 17.
17. Respondent did not submit the application herself. Instead,
Respondent directed an independent billing company, Unlimited
Physicians Services, to submit her application. I.G. Ex. 10; Tr.
at 77-79, 93-94, 99, 173-174, 183, 204-206, 209-210.
18. Respondent asserts that Unlimited Physicians Services applied
for a Medi-Cal provider number for her in order to accommodate her
participation in a program operated by the County of Los Angeles.
Respondent's Proposed Findings of Fact and Conclusions of Law, page
6, paragraph 28.
19. Respondent did not tell the employees of Unlimited Physicians
Services who submitted her application for a Medi-Cal provider
number about her conviction in Louisiana and subsequent exclusion
by the I.G. Tr. at 79-80, 86, 174-175, 180-182, 204-206.
20. In her February 9, 1990 Medi-Cal provider application,
Respondent stated, among other items of information, her name --
Jesusa N. Romero, the address of her practice -- Romero Medical
Clinic, 7750 Katella Ave., Ste. 207, Stanton, CA 90680, her
specialty -- "OBGYN," and her social security number. I.G. Ex. 10.
21. In 1990, the Medi-Cal provider application did not ask
specifically whether an applicant had been excluded or suspended
from Medicare or Medicaid or whether an applicant had been
convicted of Medicaid fraud. I.G. Ex. 10. The application was
amended in 1993 to include a question as to whether an applicant
had been suspended from Medicare or Medicaid. Tr. at 135-137.
22. Respondent's application did not reflect that she had been
excluded from Medicare by the I.G. or that she had been convicted
of Medicaid fraud in Louisiana and suspended from participation in
Medicaid by Louisiana Medicaid. I.G. Ex. 10.
23. In 1990, the Medi-Cal provider application required a
certification that the information provided in the application be
true, accurate, and complete to the best of the applicant's
knowledge. The application stated also that incorrect or
inaccurate information might affect the applicant's eligibility to
receive Medi-Cal reimbursement. I.G. Ex. 10.
24. Medi-Cal did not do an independent investigation of Respondent
to determine whether she had been excluded from Medicare or from
Medicaid in another State. Tr. at 128-129.
25. When Respondent applied for a Medi-Cal provider number on
February 9, 1990, Medi-Cal officials reviewed their list of
California-based providers to determine whether Respondent had been
suspended from participating in Medi-Cal or Medicare. I.G. Ex. 17.
26. In February 1990, due to budget constraints, there was
insufficient staff in the Medi-Cal Provider Services Section (the
office responsible for processing applications for Medi-Cal
provider numbers) to review the CSR to identify whether Respondent
was previously excluded from Medicare or from a Medicaid program in
another state. Consequently, Medi-Cal never checked Respondent's
name against the CSR. Tr. at 129, 131-135; I.G. Ex. 17.
27. A cursory examination of the CSR by Medi-Cal would have
identified information regarding Respondent (the same name and
similar specialty) which should have alerted them that Respondent
might be the provider identified in the CSR. I.G. Ex. 16.
28. Medi-Cal asserts that, absent identification of Respondent's
social security number in the CSR, Medi-Cal could not have
ascertained that the individual referenced in the CSR as Jesusa N.
Romero, M.D., obstetrician, was, in fact, Respondent. I.G. Ex. 17.
29. Due to Medi-Cal's inability to conduct an inquiry into
Respondent's past status as a Medicare provider or a Medicaid
provider in another State, and considering that Respondent might
not be the same provider identified in the CSR, Medi-Cal officials
were more concerned with the possibility of erroneously withholding
a provider number from a potentially legitimate provider than with
the possibility that a provider who had been excluded previously by
the I.G. might be permitted to provide medical services to Medi-Cal
recipients. Tr. 128-137; I.G. Ex. 17.
30. Respondent received a Medi-Cal provider number on or about
March 7, 1990. Jt. Stip. at 7; Respondent's Proposed Findings of
Fact and Conclusions of Law at page 4, paragraph 19.
31. Medi-Cal officials were unaware of Respondent's exclusion when
they issued her a provider number in 1990. Tr. at 130.
32. Medi-Cal would not have issued Respondent a Medi-Cal provider
number had Medi-Cal known of her exclusion, since one of the
requirements of Medi-Cal eligibility is that an applicant not have
been excluded from Medicare or from any Medicaid program. Tr. at
120-121, 130.
33. Medi-Cal authorizes providers who have received a Medi-Cal
provider number to submit claims for up to one year prior to the
approval of their Medi-Cal provider application. Tr. at 130-131.
34. Respondent authorized Unlimited Physicians Services to submit
claims to Medi-Cal on her behalf. Tr. at 74, 96-97, 187-189.
35. Respondent admits that she submitted, via Unlimited
Physician's Services, "various" claims to Medi-Cal's fiscal
intermediary on July 19, 1990, four additional claims on August 17,
1990, and one claim on August 19, 1990. Respondent's Proposed
Findings of Fact and Conclusions of Law at page 3, paragraph 13.
36. After receiving Respondent's Medi-Cal provider number,
Unlimited Physicians services submitted 77 claims representing 231
line items to Medi-Cal for reimbursement of the services Respondent
provided to Medi-Cal recipients between March 13, 1989 and August
1, 1990. I.G. Ex. 7; Tr. at 160.
37. On November 28, 1990, Medi-Cal suspended Respondent's
participation in Medi-Cal "effective the date of this letter."
I.G. Ex. 3.
38. Medi-Cal suspended Respondent's participation based on
information supplied by the I.G. that Respondent had been excluded
from Medicare for 10 years effective June 7, 1988. I.G. Ex. 3.
39. Medi-Cal informed Respondent that, pursuant to California law,
Medi-Cal must suspend a provider from Medi-Cal "for the same period
as the practitioner is suspended from ... Medicare." I.G. Ex. 3.
40. All of the Medi-Cal claims at issue in this proceeding (upon
which the proposed penalties, assessment, and exclusion are based),
predate Respondent's November 28, 1990 suspension from Medi-Cal.
41. Medi-Cal will reimburse Respondent for all claims she
submitted pursuant to her provider number (for services she
provided to Medi-Cal patients), so long as those claims predated
the effective date of her Medi-Cal exclusion. Tr. at 127-128; I.G.
Ex. 3.
42. Respondent has not been reinstated to Medicare or Medicaid.
Jt. Stip. at 5.
43. This proceeding is governed by section 1128A of the Act (the
Civil Monetary Penalties Law (CMPL)), and the regulations at 42
C.F.R. Part 1003 and 42 C.F.R. Part 1005.
44. Any person violating section 1128A of the Act is subject to
the imposition of a civil monetary penalty of up to $2000 for each
item or service claimed, an assessment of not more than twice the
amount claimed for each item or service, and a period of exclusion.
42 C.F.R. 1003.103, 1003.104, 1003.105.
45. Section 1128A(a)(1)(D) of the Act authorizes the Secretary of
the Department of Health and Human Services (Secretary), through
her delegate the I.G., to impose a civil monetary penalty,
assessment, and a period of exclusion against any person who
presents or causes to be presented to a State agency (such as
Medi-Cal) a claim for a medical or other item or service furnished
during a period in which the person was excluded from the program
under which the claim was made pursuant to a determination by the
Secretary under, among other sections, section 1128 of the Act.
Act, sections 1128A(a)(1)(D), 1128A(i)(1); 42 C.F.R.
1003.102(a)(3).
46. Under section 1128(a) of the Act, the Secretary (through her
delegate the I.G.) excludes individuals and entities from any
program under Title XVIII of the Act and directs that such
individuals and entities be excluded from participation in any
State health care program. Act, section 1128(a).
47. Title XVIII of the Act pertains solely to health insurance for
the aged and disabled and is commonly referred to as Medicare.
Subsection (h) of section 1128 of the Act defines a "State Health
Care Program" as "(1) a State plan approved under title XIX, (2)
any program receiving funds under title V or from an allotment to
a State under such title, or (3) any program receiving funds under
title XX or from an allotment to a State under such title."
48. Under section 1128(d)(2) of the Act, the Secretary (through
her delegate the I.G.) is required promptly to notify each
appropriate State agency administrating or supervising the
administration of each State health care program of the period for
which the State agency is directed to exclude the individual or
entity from participation in the State health care program. Act,
section 1128(d)(2).
49. Under section 1128(d)(3) of the Act, the period of exclusion
under the State health care program shall be the same as the period
of the exclusion under Title XVIII (Medicare), except where the
Secretary grants a waiver of the exclusion. Act, section
1128(d)(3).
50. The current regulation implementing exclusions from Medicare
and Medicaid states that the "OIG [Office of Inspector General]
will exclude the individual or entity from the Medicare program and
direct each State agency administering a State health care program
to exclude the individual or entity for the same period." 42
C.F.R. 1001.1901(a).
51. The current regulation implementing the manner in which notice
of I.G.-imposed exclusions are provided to State agencies states
that prompt notice will be given to "each appropriate State agency
administering or supervising the administration of each State
health care program of: (a) The facts and circumstances of each
exclusion, and (b) The period for which the State agency is being
directed to exclude the individual or entity." 42 C.F.R.
1001.2004.
52. The regulations that were in effect in 1988 state: (1) that
the OIG "will suspend from participation in Medicare," "will
also
require the State Medicaid agency to suspend," and will notify the
"State Medicaid agencies, in order that they can promptly suspend
. . . from participation in the Medicaid program" individuals and
entities convicted of program-related crimes; and (2) that
"suspension under Medicaid must be effective on the date
established by the OIG for suspension under Medicare, and must be
for the same period as the Medicare suspension." 42 C.F.R.
1001.122(a) and (c), 1001.124(a)(2), 1002.211(a).
53. An extensive review of the legislative history behind sections
1128 and 1128A of the Act, convinces me that neither section 1128
nor section 1128A provide authority for the I.G. to directly
exclude an individual or entity from participation in a State
health care program. See S. Rep. No. 109, 100th Cong., 1st Sess.
1 (1987), reprinted in 1987 U.S.C.C.A.N. 682.
54. Both at present and in 1988 when Respondent was excluded, the
Act and the regulations authorized the I.G. to exclude providers
from Medicare and to direct the appropriate State agencies to
exclude such providers from their State health care programs
(Medicaid). The length and duration of the State's exclusion is to
correspond to the period which the I.G. imposed for the provider's
Medicare exclusion.
55. The mechanism used by the I.G. to inform State agencies
administering or supervising the administration of Medicaid
programs of the I.G.'s Medicare exclusions is for the I.G.: (1) to
send letters to State agencies where the I.G. has knowledge of the
excluded provider(s) participation in a particular State's Medicaid
program and (2) to send to all State agencies the CSR listing
providers excluded by the I.G., and to send as well monthly lists
of excluded providers. Tr. 132; I.G. Exs. 2, 3, 16.
56. To sanction a provider under section 1128A of the Act, the
I.G. must prove by a preponderance of the evidence that the
provider is: 1) liable under section 1128A of the Act and its
implementing regulations; and 2) that circumstances exist which
justify the penalty, assessment, and period of exclusion imposed
and directed against that provider. The provider must prove by a
preponderance of the evidence any mitigating circumstances
justifying a reduction of the penalty, assessment, and exclusion.
42 C.F.R. 1005.15(b).
57. Since Respondent was not suspended from Medi-Cal until after
she submitted the claims at issue in this proceeding, the I.G.
lacks authority under section 1128A(a)(1)(D) to impose any penalty,
assessment, or period of exclusion against her based on the
submission of the claims at issue. None of the claims were
submitted during a period of time in which Respondent was excluded
from Medi-Cal, the program to which the claims were made.
ANALYSIS
By letter of May 18, 1988, the I.G. notified Respondent that she
was to be excluded from Medicare and the State health care programs
enumerated in section 1128(h) of the Act (hereafter referred to as
Medicaid) for 10 years, based on her Medicaid fraud conviction in
Louisiana. The I.G. notified Respondent further that, if she
submitted claims to Medicare or Medicaid during the period of her
exclusion, she would be liable for a civil monetary penalty and an
assessment. Approximately two years later, Respondent submitted an
application for a Medi-Cal provider number, received the provider
number, and submitted claims under that number to Medi-Cal. Based
on these Medi-Cal claims, the I.G. has proposed levying against
Respondent penalties, an assessment, and a period of exclusion
additional to that which the I.G. imposed and directed against
Respondent in 1988.
Respondent does not dispute that claims were submitted to Medi-Cal
under her Medi-Cal provider number during a time period in which
she was excluded from Medicare. Instead, Respondent argues that,
although she may have been excluded from Medicare when the claims
were submitted, she was not excluded from Medi-Cal until November
28, 1990, several months after the claims in question were
submitted. Respondent asserts that Medi-Cal thus was obligated to
reimburse her based on those claims and, as a result, the I.G. does
not have a basis upon which to exclude her. In the alternative,
Respondent argues that, even if I find liability in her case, the
substantial penalties, assessment, and additional period of
exclusion proposed by the I.G. are not justified.
The I.G. has not based her CMPL action on any Medicare claims.
Instead, The I.G. asserts that her proposed sanctions are based on
the claims submitted by Respondent to Medi-Cal during what the I.G.
asserts is Respondent's 10-year nationwide exclusion from Medicare
and Medicaid. In essence, the I.G. is arguing that the May 18,
1988 notice letter effectuated both an exclusion from Medicare and
an exclusion from all State Medicaid programs. The I.G. contends
that such authority arises from one of the obvious congressional
purposes for enacting Medicare and Medicaid sanctions. This
congressional purpose is to ensure that providers sanctioned in one
State not be allowed to evade the sanction by moving to another
State.
Initially, I was impressed by the logic of the I.G.'s argument, and
I construed the Act and the regulations in a manner that would
permit imposition of penalties, an assessment, and a period of
exclusion against Respondent even though Medi-Cal, the State agency
responsible for administering the Medicaid program in California,
did not suspend Respondent until after she submitted the claims at
issue. See my September 16, 1994 Ruling. However, after receiving
testimony from a Medi-Cal official at the hearing, and having the
benefit of further briefing, I now conclude that, due to the
combined failures of the I.G. and Medi-Cal to carry out their
statutory and regulatory responsibilities satisfactorily, the I.G.
has no legal authority to impose sanctions against Respondent based
on the claims at issue.
When I issued my Ruling, it was evident to me from the legislative
history, the Act, and the regulations, that Congress did not want
providers to escape the effect of an exclusion by moving to a
different State and receiving a Medicaid provider number in that
State. It was evident to me also that Congress intended that
exclusions from Medicare and Medicaid be for the same duration. My
view of the intent of Congress has not changed. Congress intended
that individuals such as Respondent, who submit claims to a State
Medicaid program during a period in which they are excluded from
Medicare, should be sanctioned under the CMPL. Congress created a
mechanism to ensure the accomplishment of its purpose. The I.G. is
given the authority to exclude providers from Medicare. With
regard to Medicaid, however, the I.G.'s responsibility is to notify
the appropriate State agencies so that the State agencies, not the
I.G., can promptly exclude any provider or prospective provider for
the same period as the provider's Medicare exclusion.
Accomplishing such Medicaid exclusions is not unduly burdensome,
but it does require coordinated federal and State action, and that
both the I.G. and the State must meet their respective
responsibilities.
In this case, the mechanism set forth in the Act and the
regulations required the I.G. to direct Medi-Cal to exclude
Respondent from Medi-Cal for the same period that Respondent was
excluded from Medicare. The mechanism set forth in the Act and the
regulations then required Medi-Cal to suspend Respondent for the
same period of time Respondent was excluded from Medicare. The
State could have accomplished this either by not issuing Respondent
a Medi-Cal provider number initially or, upon being notified of
Respondent's Medicare exclusion, by retroactively excluding
Respondent beginning with the effective date of her Medicare
exclusion.
With regard to the I.G.'s duty to notify the States of actions
taken by the I.G. to exclude providers, the Act and the regulations
have consistently placed on the Secretary (through her delegate the
I.G.) the responsibility for notifying the States of Medicare
exclusions and, in turn, have placed on the States the
responsibility for excluding providers excluded from Medicare from
their Medicaid programs. In 1988, when, based on her Medicaid
fraud conviction in Louisiana, Respondent was first excluded from
Medicare, the Act and the regulations imposed upon the Secretary
(through her delegate the I.G.), the responsibility to notify State
Medicaid agencies of her Medicare exclusion. The I.G. was to
notify the State Medicaid agencies of the exclusion precisely so
that the State Medicaid agencies could take their own action to
exclude Respondent from State Medicaid programs. The term of any
State Medicaid exclusion was to run concurrently with term of
Respondent's Medicare exclusion. Also, current regulations provide
that the I.G. is to direct State agencies to exclude a provider for
the same period as the provider's Medicare exclusion.
The record indicates that the specific means which the I.G. employs
to notify a State agency to take action to exclude a provider (for
a State in which she knows a provider she has excluded from
Medicare is practicing), is for the I.G. to send the State a letter
directing the State to exclude the provider. In this case, the
I.G. specifically notified Louisiana of Respondent's Medicare
exclusion by letter in 1988, and specifically notified California
by letter in 1990. For States in which the I.G. is not aware a
provider excluded from Medicare is practicing, the record indicates
that notification by the I.G. to State agencies of Medicare
exclusions appears to take place via the CSR 4/ and via monthly
reports provided to State agencies detailing the names of recently
excluded providers.
The I.G. asserts that the CSR does not constitute specific notice
of Respondent's exclusion under the Act or the regulations. I.G.
Supp. Br. at 5. In my judgment, had the I.G. provided sufficient
information in the CSR (such as Respondent's social security
number), the CSR might well constitute specific notice. However,
for a State in which a provider is not practicing, certainly the
CSR is detailed enough such that a cursory examination should alert
a State Medicaid agency to investigate potential provider
applicants whose name and credentials match those set forth in the
CSR (or in the monthly report). If a State Medicaid agency does
not attempt even such a cursory examination, the congressional
purpose is defeated and providers excluded from Medicare may
receive from State Medicaid programs provider numbers to which they
are not entitled. 5/
In Respondent's case, the I.G. did not notify Medi-Cal of
Respondent's Medicare exclusion by specific letter until after
Respondent had received a Medi-Cal provider number and begun
billing Medi-Cal. Had the I.G. notified Medi-Cal specifically by
letter in 1988 that Respondent had been excluded by Medicare,
arguably Medi-Cal would have been informed that it should not issue
Respondent a Medi-Cal provider number if she applied for one.
However, the I.G. need not send a letter to every State in which a
provider might, at some future date, apply for a Medicaid provider
number in order to meet its notice requirements under the Act
(although the I.G. could choose to do so). Sufficient notice can
be provided by sending States monthly lists of excluded Medicare
providers with periodic distribution of updated lists of all
excluded providers as of a given date.
Here, Respondent's name has been in the CSR since 1988. Medi-Cal
was responsible for reviewing Respondent's provider application to
ensure that Respondent was an eligible provider. Had Medi-Cal done
even a cursory investigation, Medi-Cal might not have erred and
issued Respondent a Medi-Cal provider number until Medi-Cal checked
that she was not the Jesusa N. Romero, M.D. listed in the CSR. 6/
Moreover, since Medicare and Medicaid exclusions are to be
coterminous, Medi-Cal erred in not excluding Respondent as of the
effective date of her 1988 Medicare exclusion. Perhaps Medi-Cal
could have avoided this situation when it received the I.G.'s
letter in 1990 notifying Medi-Cal of Respondent's 1988 Medicare
exclusion. Medi-Cal might have notified Respondent then that she
was retroactively excluded from Medi-Cal as of 1988, not November
28, 1990. However, Medi-Cal did not take this action. 7/ Instead,
Medi-Cal excluded Respondent as of November 28, 1990, after the
claims at issue were submitted. 8/ As a result of this
inadvertence, Respondent was able to receive and bill under a
provider number to which she was not entitled.
I recognize that Respondent bears significant responsibility for
allowing this situation to occur. Respondent is not a naive
individual. Respondent is a practicing physician with many years
of experience in program billing. Moreover, Respondent is well
aware of the pitfalls of program billing, having been convicted of
Medicaid fraud based on her billing practices. Respondent has
testified that she knew that she was excluded from Medicare and
from State health care programs. Tr. at 169, 178-179, 199-201,
207-208. When she began her practice in California, Respondent
testified that she was careful not to bill Medi-Cal, due to her
fear of committing a billing offense. Tr. at 171, 201. Respondent
testified that she was careful also to inform two California
hospitals she worked for that she had been excluded. Tr. at
201-202. Given Respondent's professional status and personal
history, I do not find to be credible her assertion that she did
not know Medi-Cal was a Medicaid program and, thus, a State health
care program within the ambit of her exclusion. Before applying
for a Medi-Cal provider number, Respondent should have thoroughly
investigated (either by directly contacting Medi-Cal and asking or
by consulting with an attorney in California) whether her State
health care program exclusion encompassed Medi-Cal. Respondent
abdicated this responsibility. Her applying for a Medi-Cal
provider number and her subsequent billing for services she
rendered to Medi-Cal patients are especially egregious acts.
However, in this instance, the Medi-Cal claims at issue are not a
basis to sanction her under the CMPL. 9/ Here, the trigger for
sanctioning Respondent under the CMPL is that Respondent must have
submitted the claims at issue to Medi-Cal during a period in which
she was excluded by Medi-Cal. The evidence in this case proves,
however, that, during the time period in which Respondent submitted
the claims at issue, Respondent was not excluded from Medi-Cal.
CONCLUSION
For there to be a basis for the I.G. to sanction Respondent in this
case, Respondent must have submitted the claims at issue to
Medi-Cal during a period in which she was excluded from Medi-Cal.
Respondent, however, was not excluded from Medi-Cal when the claims
at issue were submitted. Thus, the I.G. has no authority to impose
the penalties, assessment, or exclusion proposed in her Notice.
Edward D. Steinman
Administrative Law Judge
1. The California Department of Health Services administers the
Medicaid program in the State of California. California's Medicaid
program is referred to as Medi-Cal. It is a State health care
program as defined in subsection (h) of section 1128 of the Social
Security Act (Act).
2. By letter of March 17, 1995, I informed the parties that I
would be reconsidering my September 16, 1994 Ruling in light of the
record developed at the October 31, 1994 hearing and in
consideration of the posthearing submissions of the parties. Upon
reconsideration, and having the benefit of a complete record, I
have reached a different conclusion.
3. The record before me consists principally of the transcript
of the October 31, 1994 hearing and the briefs and exhibits
submitted by the parties. During the October 31, 1994 hearing, I
admitted into evidence the I.G.'s exhibits 1 through 13 and
rejected I.G. exhibits 14 and 15. I admitted into evidence also
Respondent's exhibits 1 through 4. With her posthearing briefs,
the I.G. submitted multiple attachments which she has re-submitted
as proposed I.G. exhibits 16 through 21. While Respondent opposes
the inclusion of such documents as exhibits, I do not find that
Respondent is harmed or prejudiced by my accepting such documents
into the record. Moreover, these documents provide important
factual information upon which I have based my conclusion that the
I.G. has no authority to impose any penalty, assessment, or
additional period of exclusion based on Respondent's submission of
claims to Medi-Cal. Thus, I am admitting into evidence I.G.
exhibits 16 through 21.
In this Decision, I will refer to the transcript of the October 31,
1994 hearing as Tr. at (page). I will refer to the parties'
exhibits as I.G. or Respondent (R.) Ex(s). (number) at (page). I
will refer to the parties' posthearing briefs as I.G. or R. Br. at
(page). I will refer to the parties' responses as I.G. or R. R.
Br. at (page). I will refer to the parties' supplementary briefs
as I.G. or R. Supp. Br. at (page). I will refer to Respondent's
supplementary response brief as R. Supp. R. Br. at (page). I will
refer to the parties' joint stipulations of fact as Jt. Stip.
(number).
4. The record does not reflect how often the CSR is updated or
distributed. The record reflects only that a CSR was issued as of
October 31, 1988 (I.G. Ex. 16) and that a smaller monthly list of
excluded providers is issued. Tr. 132. I note that I.G. Ex. 16,
the CSR reflecting sanctions through October 31, 1988, contains the
names of providers sanctioned initially several years before that
date.
5. The congressional purpose will be defeated also where a
State, even upon receiving specific notice of a Medicare exclusion,
suspends a provider as of the date of the State's letter of
suspension rather than as of the effective date of the Medicare
exclusion.
6. While Medi-Cal may have been concerned with the harm which
might accrue to a potential provider if the approval of a provider
number was delayed erroneously by such investigation, a potential
provider should not be harmed by such investigation. This is
because Medi-Cal will reimburse a provider up to one year prior to
receiving a provider number for services provided to Medi-Cal
recipients during that year. Further, Medi-Cal's greater concern
should be allowing potentially untrustworthy providers to receive
provider numbers where an applicant for a provider number may have
been excluded from Medicare or Medicaid.
7. At this time, I make no finding as to whether the I.G. might
bring a CMPL action against Respondent, based on the claims at
issue, if Medi-Cal retroactively modifies Respondent's Medi-Cal
exclusion to commence as of the effective date of her Medicare
exclusion. As of the time of her exclusion from Medicaid in
Louisiana (June 7, 1988), Respondent was on notice that she would
be excluded from all State health care programs (Medicaid) upon
separate action taken directly by a State. Moreover, Respondent
was on notice that she would be acting at her own risk if she
became a State Medicaid program provider subsequent to the I.G.'s
notice letter and prior to a State suspending her from its Medicaid
program, since the State would be compelled by law to suspend her
for the same period as the period of her Medicare exclusion. At
the hearing, the Medi-Cal official who testified was confused
initially over the effective date of Respondent's Medi-Cal
suspension date, testifying that it commenced as of the effective
date of Respondent's Medicare exclusion. Tr. at 120. Under
questioning by Respondent's counsel, the Medi-Cal official
confirmed that Respondent was suspended after the claims at issue
were submitted. Tr. at 122-124. The Medi-Cal official provided no
explanation for the selection of this date. The record does not
reflect that the I.G. has made any effort to require Medi-Cal to
conform its suspension of Respondent to the same period as
Respondent's Medicare exclusion.
8. I note that Medi-Cal has changed its provider application to
ask whether or not an applicant has been excluded from Medicare or
Medi-Cal. However, this question does not obviate the need for the
investigation by Medi-Cal of a provider applicant. An applicant
might lie about whether or not they were excluded. If so, and if
Medi-Cal does not exclude the individual from Medi-Cal until after
the individual has received a provider number and claims have been
made, there might still be no basis to sanction the individual
under the CMPL.
9. I make no finding as to whether Respondent can be sanctioned
for her conduct under State law or pursuant to another federal
statute or regulation. Respondent may have failed to advise
Medi-Cal that she was previously excluded from Medicare and the
Medicaid program in the State of Louisiana. However, even if this
were the case, such failure does not alter the fact that Medi-Cal
did not exclude Respondent from its program until after she
submitted the claims at issue here. That exclusion must occur in
order for there to be a legal basis for the I.G.'s action.