$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Joel A. Baringer, R.Ph.,
Petitioner,
- v. -
The Inspector General.
DATE: October 5, 1995
Docket No. C-95-125
Decision No. CR397
DECISION
By letter dated March 22, 1995, Joel A. Baringer, R.Ph.,
the Petitioner herein, was notified by the Inspector General
(I.G.), of the U.S. Department of Health & Human Services (HHS),
that it had been decided to exclude Petitioner for a period of five
years from participation in the Medicare program and from
participation in the State health care programs described in
section 1128(h) of the Social Security Act (Act), which are
referred to herein as "Medicaid." The I.G.'s rationale was that
exclusion, for at least five years, is mandated by sections
1128(a)(1) and 1128(c)(3)(B) of the Act because Petitioner had been
convicted of a criminal offense related to the delivery of an item
or service under Medicaid.
Petitioner requested a review of the I.G.'s action by an
administrative law judge of HHS's Departmental Appeals Board (DAB).
The I.G. moved for summary disposition.
Because I have determined that there are no facts of decisional
significance genuinely in dispute, and that the only matters to be
decided are the legal implications of the undisputed facts, I have
decided the case on the basis of the parties' written submissions.
I find no reason to disturb the I.G.'s determination to exclude
Petitioner from participation in the Medicare and Medicaid programs
for a period of five years.
APPLICABLE LAW
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act make it mandatory
for any individual who has been convicted of a criminal offense
related to the delivery of an item or service under Medicare or
Medicaid to be excluded from participation in such programs for a
period of at least five years.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/
1. During the period relevant to this case, Petitioner was a
licensed pharmacist in the State of Ohio. P. Ex. 1.
2. On May 13, 1994, in the Franklin County Municipal Court (State
court), Columbus, Ohio, Petitioner pled guilty to attempted
Medicaid fraud, a misdemeanor. I.G. Ex. 1.
3. The State court accepted Petitioner's guilty plea to the charge
of attempted Medicaid fraud and sentenced Petitioner to 1) pay a
$150 fine; 2) serve 90 days in jail (suspended); and 3) probation
for two years. I.G. Ex. 2.
4. Petitioner was convicted within the meaning of section 1128(i)
of the Act. Act, section 1128(i)(1), 1128(i)(3); I.G. Exs. 1, 2;
Findings 1 - 3.
5. Petitioner's conviction for attempted Medicaid fraud is
program-related within the meaning of section 1128(a)(1). I.G.
Exs. 1, 2; Finding 4.
6. Petitioner was properly excluded from participation in Medicare
and Medicaid for the mandatory minimum five- year period. I.G.
Exs. 1, 2; Act, sections 1128(a)(1), 1128(c)(3)(B); Findings 1 - 5.
PETITIONER'S ARGUMENT
Petitioner acknowledges that he pled guilty to the misdemeanor
charge of attempted Medicaid fraud. However, he argues that a
misdemeanor is too trivial an offense to justify exclusion from the
Medicare and Medicaid programs.
Petitioner contends that the State's prosecuting attorney in his
criminal case represented to him that he knew of no further action
that the federal government would take against him. Petitioner
further contends that for the I.G. to direct and impose a five-year
exclusion against him violates the spirit and the terms of
Petitioner's plea agreement, because the intent of all parties in
entering into a plea agreement was to allow Petitioner to keep his
license and continue being a pharmacist providing services to
patients in federally funded programs.
Petitioner asserts that excluding him would violate the Eighth
Amendment in that it would be cruel and unusual punishment because
it would preclude Petitioner from being able to earn a living as a
pharmacist. Finally, Petitioner further argues that his exclusion
from Medicare and Medicaid constitutes double jeopardy.
DISCUSSION
The statute under which the I.G. seeks to exclude Petitioner,
section 1128(a)(1) of the Act, requires, initially, that Petitioner
have been convicted of a criminal offense.
Section 1128(i) of the Act provides that an individual will be
deemed "convicted" under any of the following circumstances:
(1) when a judgment of conviction has been entered against the
individual or entity by a federal, State, or local court,
regardless of whether there is an appeal pending or whether the
judgment of conviction or other record relating to criminal conduct
has been expunged;
(2) when there has been a finding of guilt against the
individual or entity by a federal, State, or local court;
(3) when a plea of guilty or nolo contendere by the individual
or entity has been accepted by a federal, State, or local court or
(4) when the individual or entity has entered into
participation in a first offender, deferred adjudication, or other
arrangement or program where judgment of conviction has been
withheld.
In the case at hand, sections 1128(i)(1) and (3) are applicable.
Petitioner pled guilty to the offense of attempted Medicaid fraud
and the State court accepted Petitioner's plea. Moreover, the
evidence shows that the State court entered judgment against
Petitioner because Petitioner's guilty plea explicitly states that
"[t]he Court accepts the defendant's plea of 'guilty' and enters a
finding and judgment of 'guilty' accordingly." I.G. Ex. 1. 2/
The second requirement of section 1128(a)(1) of the Act is that the
criminal activity be program-related. In this regard, Petitioner's
conviction is, on its face, program-related because Petitioner was
convicted of attempted Medicaid fraud. I.G. Exs. 1, 2. No further
connection need be shown. Scott Gladstone, M.D., DAB CR331 (1994);
Ian C. Klein, D.P.M., DAB CR177 (1992); Olufemi Okunoren, M.D., DAB
CR150 (1991). Petitioner admits that his conviction is
program-related in page two of his brief.
Petitioner pled guilty to the offense of attempted Medicaid fraud.
I.G. Exs. 1, 2. Webster's Dictionary defines fraud as "intentional
perversion of truth in order to induce another to part with
something of value or surrender a legal right." Webster's Ninth
New Collegiate Dictionary 490 (9th ed. 1990).
In the context of this case, the evidence establishes that the
intended victim of Petitioner's fraud was the Medicaid program.
I.G. Exs. 1, 2. The plain meaning of the offense to which
Petitioner pled guilty is that Petitioner intentionally submitted
a claim to Medicaid in order to receive monetary reimbursement to
which he was not entitled. It is well established that such
financial crimes directed at Medicare or Medicaid are related to
the delivery of items or services under Medicare or Medicaid. Jack
W. Greene, DAB CR19, aff'd DAB 1078 (1989), aff'd sub nom. Greene
v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990). Therefore,
there is no question that Petitioner's offense is program-related
within the meaning of section 1128(a)(1) of the Act.
As to Petitioner's contention that his exclusion would subject him
to cruel and unusual punishment, in violation of his rights under
the Eighth Amendment of the Constitution, it is well settled that
the primary purpose of the exclusion sanction is remedial rather
than punitive. Moreover, the purpose of a mandatory exclusion is
to protect the integrity of the Medicare and Medicaid programs,
program beneficiaries, and the public from persons who have been
shown to be guilty of program-related or patient-related crimes.
Francis Shaenboen, R.Ph., DAB CR97 (1990), aff'd DAB 1249 (1991).
I have no authority to rule on the constitutionality of
Petitioner's exclusion. Shanti Jain, M.D., DAB 1398 (1993); See 42
C.F.R. 1005.4.
Petitioner further claims that subjecting him to an exclusion is
violative of the double jeopardy provisions of the Constitution.
However, double jeopardy does not apply to a subsequent federal
prosecution based on facts which led to a State conviction. Abbate
v. United States, 359 U.S. 187 (1959). As an appellate panel of
the DAB expressed, the mandatory exclusion provision is not
comparable to the civil penalty imposed in Halper [U.S. v. Halper,
490 U.S. 435 (1989)], but is remedial in nature and, therefore,
constitutionally inoffensive. Janet Wallace, L.P.N., DAB 1126
(1992).
Finally, Petitioner argues that a five-year exclusion is too harsh,
given that he was convicted of only a misdemeanor. The distinction
that Petitioner is attempting to make is not one that exists in the
application of the mandatory exclusion provisions of sections
1128(a)(1) and 1128(c)(3)(B). The Act makes no distinction between
a felony conviction and a misdemeanor conviction, it simply
mandates that all persons or entities convicted of program-related
offenses are to be excluded for the mandatory minimum five years.
Larry D. Warden, DAB CR299 (1993); Glenn E. Bandel, DAB CR261
(1993); Act, sections 1128(a)(1) and 1128(c)(3)(B); 42 C.F.R.
1001.101, 1001.102.
CONCLUSION
Petitioner's exclusion, for at least five years, is mandated by
sections 1128(a)(1) and 1128(c)(3)(B) of the Act because the I.G.
has demonstrated that Petitioner was convicted of a criminal
offense related to the delivery of an item or service under
Medicaid.
________________________
Joseph K. Riotto
Administrative Law Judge
1. I cite to the parties' exhibits and my Findings of Fact and
Conclusions of Law as follows:
Petitioner's Exhibit . . . . . . . . . P. Ex. (number)
I.G.'s Exhibit . . . . . . . . . . . . I.G. Ex. (number)
My Findings of Fact and
Conclusions of Law . . . . . . . . . Findings (number)
2. Petitioner submitted four exhibits in conjunction with his
motion for summary disposition. (P. Exs. 1 - 4). I admit all four
of Petitioner's exhibits into evidence. The I.G. submitted three
exhibits in conjunction with her motion for summary disposition
(I.G. Exs. 1 - 3). I admit I.G. Exs. 1 and 2. I reject I.G. Ex.
3, as, per my June 5, 1995 Order (Order), I instructed the parties
not to submit a copy of the Notice letter as an exhibit in this
case. The I.G. submitted two attachments which are copies of DAB
decisions in the cases of Larry D. Warden, DAB CR299 (1993) and
Glen E. Bandel, DAB CR261 (1993). I have labelled these as
Attachments 1 and 2 respectively, but, as per my Order, I do not
admit them into evidence in this case.