$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Maria M. Melendez, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: October 20, 1995
Docket No. C-95-097
Decision No. CR398
DECISION
By letter dated January 24, 1995, Maria M. Melendez, M.D., 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).
During the telephone prehearing conference call on April 21, 1995,
the I.G. moved for submission of this case on a written record.
Petitioner did not object to the I.G.'s request. I granted the
I.G.'s request.
Because I 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
in lieu of an in-person evidentiary hearing. 42 C.F.R.
1005.4(b)(12) (1992).
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. Petitioner is a medical doctor, practicing in the Bronx, New
York.
2. On August 22, 1994, Petitioner pled guilty in the District
Court of the State of Vermont, Unit 3, Orleans Circuit, to one
count of Medicaid Fraud and one count of Prescription Fraud. I.G.
Exs. 1, 2. 1/
3. Specifically, the Information charged that, on or about August
30, 1993, Petitioner intentionally prepared a false or fraudulent
prescription, which she gave to a Medicaid recipient who was not
her patient nor was he ever examined by her. I.G. Exs. 1 - 3.
4. Allegedly, Petitioner issued the false prescription knowing
that a pharmacy would fill the prescription, as she directed, and
wrongly bill the Medicaid program. I.G. Ex. 2 at 2 - 3.
5. On September 9, 1993, the pharmacy which received Petitioner's
false prescription, billed the Medicaid program based on her
fraudulent representation. I.G. Exs. 1, 2.
6. In pleading guilty, Petitioner indicated that there were
sufficient facts to support the charges in count 2 (Medicaid Fraud)
and count 3 (Prescription Fraud) of the Information filed against
her. I.G. Ex. 1 at 4; Finding 3.
7. Petitioner was sentenced by the court to probation, a $3500
fine, and 100 days of community service. I.G. Ex. 3 at 1 - 2.
8. The Secretary of HHS has delegated to the I.G. the authority
to determine and impose exclusions pursuant to section 1128 of the
Act. 48 Fed. Reg. 21,662 (1983).
9. On January 24, 1995, the I.G. issued a notice stating that
Petitioner was being excluded from participation in the Medicare
and Medicaid programs for five years, pursuant to section
1128(a)(1) of the Act.
10. Petitioner's guilty plea, and the court's acceptance of that
plea, constitutes a "conviction," within the meaning of section
1128(a)(1) and 1128(i) of the Act.
11. 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 6, 7, 10.
12. Pursuant to section 1128(a)(1) of the Act, the I.G. is
required to exclude Petitioner from participating in the Medicare
and Medicaid programs.
13. The minimum mandatory period of exclusion pursuant to section
1128(a)(1) is five years. Act, section 1128(c)(3)(B).
14. 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. Findings 1 - 13.
15. Neither the I.G. nor an administrative law judge has the
authority to reduce the five-year minimum exclusion mandated by
sections 1128(a)(1) and 1128(c)(3)(B) of the Act.
16. Although Petitioner may indeed provide medical services to
indigent persons, that, also, does not provide me with authority to
waive or lessen her exclusion.
PETITIONER'S ARGUMENT
Petitioner contends that, under the totality of circumstances in
her case, a five-year sanction is inherently excessive. Petitioner
argues also that the public has nothing to fear from her continuing
to practice in light of the fact that her writing of this single
false prescription was her only transgression of law.
Petitioner notes that she has had to overcome a history of
childhood deprivation and abuse which have caused her psychological
difficulties in life, which necessitated extensive treatment and
that she now applies her skills as a psychiatrist to serve a
uniquely disadvantaged clientele in the South Bronx.
Lastly, Petitioner notes that the medicine which she prescribed
contrary to regulation was an antidepressant, which she needed for
own treatment but was unable to afford. Petitioner has also
submitted numerous letters of support attesting to her professional
skills and service to the community. 2/
DISCUSSION
I. Petitioner was properly excluded under section 1128(a)(1) of
the Act.
The statute under which the I.G. seeks to exclude Petitioner --
section 1128(a)(1) -- 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 judgement of conviction has been
withheld.
In the case at hand, sections 1128(i)(1) and (3) are obviously
applicable. Petitioner pled guilty and the court clearly accepted
such plea when it imposed a sentence. Findings 2, 6, 7; I.G. Ex.
3.
Next, the statute requires that the criminal activity have been
program related. It is well established that financial misconduct
directed at Medicare and Medicaid, in connection with the delivery
of items or services under the programs, constitutes a
program-related offense invoking mandatory exclusion. Jack W.
Greene, DAB CR19 (1989), aff'd DAB 1078 (1989), aff'd sub nom.
Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990). In
this regard, Petitioner's misrepresentations resulted in the
payment by Medicaid of a fraudulent claim. Moreover, Petitioner's
offense was program related because Medicaid was the victim of the
offense. Ian Klein, DAB CR177 (1992). For these reasons,
Petitioner's conviction was related to the delivery of an item or
service under Medicaid.
In this case, the I.G. made the determination that Petitioner's
conviction was governed by section 1128(a)(1). Once that
determination was made, the I.G. had no discretion to impose
anything but a mandatory five-year exclusion. Niranjana B. Parikh,
M.D., et al., DAB 1334, at 7 (1992). I conclude that in this case,
the I.G. properly classified Petitioner's conviction as falling
under the minimum mandatory exclusion authority of sections
1128(a)(1) and 1128(c)(3)(B). The law requires that Petitioner be
excluded for at least five years.
II. The I.G. is entitled to prevail as a matter of law.
As noted above, Petitioner offers several explanations for her
criminal behavior -- i.e., psychological difficulties and financial
hardship. She claims also that any violation of law on her part is
more than balanced by her community service. However, under
section 1128(a)(1), proof that a relevant criminal conviction has
occurred ends the inquiry as to whether mandatory exclusion is
justified. DeWayne Franzen, DAB 1165 (1990). The administrative
law judge does not look beyond the fact of conviction, or entertain
claims of innocence, or evaluate explanations for the misconduct,
or consider evidence intended to mitigate the minimum exclusionary
period. It is also well established that the intent of the
individual committing the criminal offense is not relevant. Summit
Health Limited, dba Marina Convalescent Hospital, DAB 1173 (1990).
Consequently, Petitioner's explanations are not relevant or
material to the outcome of this case.
Section 112(c)(3)(B) of the Act requires that an exclusion imposed
under section 1128(a)(1) be for a mandatory minimum period of at
least five years. Chris Mark Spierer, DAB CR360 (1995); Pamela
Gail Hill, DAB CR347 (1994). This five-year mandatory minimum
requirement is also codified at 42 C.F.R. 1001.102(a). Neither
the administrative law judge nor the I.G is authorized to reduce
the five-year mandatory minimum exclusion. Maximo Levin, DAB CR343
(1994). Since the I.G. excluded Petitioner pursuant to section
1128(a)(1), the five-year exclusion is deemed reasonable as a
matter of law.
For the reasons stated above, the I.G. is entitled to prevail as a
matter of law. Thus, for the purposes of this decision and to
resolve this summary disposition issue, I find that there is no
material fact in dispute, and the I.G. is entitled to summary
disposition.
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 of her
conviction of a criminal offense related to the delivery of an item
or service under Medicaid.
________________________
Joseph K. Riotto
Administrative Law Judge
1. The I.G. submitted three exhibits with her brief and I
have admitted them into evidence. I refer to the I.G.'s exhibits
as "I.G. Ex(s). 1 - 3."
2. In her responsive brief, Petitioner included numerous letters
and refers to them in the brief as "Exhibit A." I have relabelled
this exhibit as Petitioner's exhibit 1 "P. Ex. 1," in accordance
with my Order and Schedule for Filing Briefs and Documentary
Evidence, dated April 25, 1995. I admit P. Ex. 1 into evidence.