$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Kathleen M. Casey
Petitioner,
- v. -
The Inspector General.
DATE: November 13, 1995
Docket No. C-95-138
Decision No. CR401
DECISION
By letter dated April 14, 1995, Kathleen M. Casey, the Petitioner
herein, was notified by the Inspector General of the U.S.
Department of Health & Human Services (I.G.), 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 defined 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 (ALJ) of the Departmental Appeals Board
(DAB). I conducted a prehearing conference in this case on June
20, 1995, at which time the parties agreed that there were no
genuine issues of material fact which need to be resolved by an
in-person hearing. Accordingly, I established a schedule for the
parties to file briefs and documentary evidence. In her initial
brief, the I.G. moved for summary disposition. Petitioner filed a
response and the I.G. filed a reply.
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. As a part of its function, Medicaid administers the personal
care attendant program, which provides benefits to eligible
permanently or chronically disabled recipients who need assistance
in their activities of daily living so that they can remain in the
community and out of institutional settings. I.G. Ex. 3.
2. Petitioner was a personal care attendant who received
reimbursement from Medicaid for furnishing items or services to two
mentally retarded individuals living in her home. P. Ex. 2; I.G.
Ex. 1, 3.
3. Petitioner was indicted on May 19, 1994, by the Commonwealth of
Massachusetts, on charges of Larceny By False Pretenses (obtaining
money from the Massachusetts Department of Public Welfare by making
false representations) and Medicaid False Claims (knowingly and
willfully causing false statements in applications for payments
from Medicaid). I.G. Ex. 1, 2.
4. On November 17, 1994, Petitioner pled guilty in Suffolk
Superior Court to two counts of Larceny By False Pretenses and one
count of Medicaid False Claims. I.G. Ex. 3, 4, 5.
5. A Massachusetts State court accepted Petitioner's plea and
entered judgment against Petitioner, sentencing Petitioner to one
year's imprisonment (consisting of seven days actual incarceration
with the remaining 358 days to be under supervised probation) and
requiring Petitioner to pay $16,000 restitution. P. Ex. 2; I.G.
Ex. 4, 5.
6. Petitioner's plea of guilty and the Massachusetts court's
acceptance of that plea constitute a valid conviction for purposes
of section 1128(i)(1) and (3) of the Act.
7. The offenses to which Petitioner pled guilty are
program-related within the meaning of section 1128(a)(1) of the
Act. P. Ex. 2; I.G. Ex. 1 - 7.
8. Exclusion from the Medicare and Medicaid programs pursuant to
section 1128(a) is remedial in nature. Mannochio v. Kusserow, 961
F.2d 1539, 1541 (11th Cir. 1992); Kahn v. Inspector General of U.S.
Department of Health and Human Services, 848 F. Supp. 432 (S.D.N.Y.
1994); Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994); Jack W.
Greene, DAB CR19 (1989), aff'd DAB 1078 (1989), aff'd sub nom
Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990).
9. Petitioner's argument that her conviction was obtained by fraud
is a collateral attack on her conviction, and I do not have the
authority to consider that defense. Douglas Schram, M.D., DAB 1372
(1992); Sonia M. Gerzoung, M.D., DAB CR286 (1993); Peter J.
Edmonson, DAB 1330 (1992).
10. I am without authority to alter the date on which Petitioner's
exclusion begins.
11. Petitioner must be excluded from being a provider in the
Medicare and Medicaid programs for a five year mandatory period.
Act, Section 1128(a)(1); Prabha Prakash, M.D., DAB CR265 (1993);
Arthur B. Stone, D.P.M., DAB CR26 (1989); Elsbeth Barnes, DAB CR340
(1994).
PETITIONER'S ARGUMENT
Petitioner contends that her exclusion is punitive rather than
remedial. She asserts also that her guilty plea was obtained by
fraudulent means and therefore cannot serve as basis for an
exclusion under section 1128(a)(1). Further, she maintains that,
inasmuch as she ceased work in the mental health field in June
1994, she should be credited with this time against the five-year
exclusion period.
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) 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. The uncontested facts are that Petitioner pled guilty
and the court accepted her plea.
Next, section 1128(a)(1) requires that Petitioner's criminal
conviction must be related to the delivery of an item or service
under Medicare or Medicaid. A conviction meets this statutory test
where there is a nexus or common sense connection between the
criminal offense for which the petitioner has been convicted and
the delivery of an item or service under Medicare or Medicaid.
Carolyn Nagy, DAB CR182 (1992); Berton Siegel, D.O., DAB 1467
(1994).
In this regard, the record reveals that the two offenses to which
Petitioner pled guilty (one count of willfully causing false
statements or representations to be made in application for a
Medicaid benefit payment and two counts of obtaining money from the
Massachusetts Department of Public Welfare by false pretenses) are
both program-related. Petitioner's misrepresentations resulted in
her being paid by Medicaid for services she did not, in fact,
provide.
The factual background of Petitioner's illicit activities involves
Petitioner acting as a personal care attendant for two mentally
retarded individuals living in her home. I.G. Ex. 1, 3; Findings
of Fact and Conclusions of Law (FFCL) 1, 2. Petitioner was charged
with administering care to these two individuals in exchange for
reimbursement from Medicaid. As part of her function as personal
care attendant for these two individuals, Petitioner was to keep
records of the services she provided so that Medicaid could
reimburse her for those services. I.G. Ex. 3; FFCL 1, 2. However,
instead of keeping accurate records, Petitioner made willful and
knowing misrepresentations on time sheets, knowing that these
misrepresentations would result in Medicaid reimbursing her for
services she did not, in fact, provide. Both Petitioner's guilty
plea to larceny and her guilty plea to making false statements stem
from her making knowing and willful misrepresentations to the
Medicaid program. As such, her conviction is program-related
within the meaning of section 1128(a)(1).
Additionally, it is well established that convictions for financial
crimes, such as the filing of false claims for reimbursement from
Medicare or Medicaid, are program related within the meaning of
section 1128(a)(1). Jack W. Greene, DAB CR19, aff'd DAB 1078
(1989), aff'd Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn.
1990). In this case, Petitioner's criminal conviction meets this
test because it directly caused Medicaid to overpay Petitioner.
Moreover, Medicaid was the victim of Petitioner's crime. Criminal
convictions that are based on the filing of false claims are
program-related within the meaning of section 1128(a)(1) and
require that a minimum mandatory five-year exclusion be imposed
against the perpetrator. Ian C. Klein, D.P.M., DAB CR177 (1992);
Nicholas J. Penna, D.M.D., DAB CR338 (1994).
Petitioner contends that the imposition of a five-year mandatory
exclusion against her is punitive rather than remedial. While it
is true that a second punishment for the same offense could be
violative of the Double Jeopardy Clause of the United States
Constitution, such is not the case here. Also, appellate panels of
the DAB and several federal courts have considered whether the
imposition of an exclusion subsequent to a criminal punishment for
the same offense is constitutional and have held that the exclusion
does not violate the Double Jeopardy Clause. Rather, the
legislative history of the Act and the language in decisions
upholding the exclusion reflect a remedial statutory purpose to
enable the Secretary to protect the integrity of federally-funded
health care programs. S.Rep. No. 109, 100th Cong, 1st Sess. 1-2
(1987), reprinted in 1987 U.S.C.C.A.N. 682; Mannochio v. Kusserow,
961 F.2d 1539, 1541 (11th Cir. 1992); Kahn v. Inspector General of
U.S. Department of Health and Human Services, 848 F. Supp. 432
(S.D.N.Y. 1994); Westin v. Shalala, 845 F. Supp. 1446 (D. Kan.
1994).
Additionally, Petitioner asserts that her conviction was obtained
by fraudulent means, alleging that the prosecutor told her that a
guilty plea would have no adverse effect on her ability to work in
her former profession. Petitioner asserts also that her conviction
caused her to cease working in the health field in June 1994, and
that, accordingly, she should be credited with this time against
the five-year exclusion period. However, these arguments, too, do
not avail her, since it is well established that, where the I.G.
excludes an individual under the mandatory provisions of the Act,
the minimum period of exclusion is fixed by statute and is
justified by the conviction alone. Niranjana B. Parikh, M.D., et
al., DAB CR171 (1992) at 2; 42 C.F.R. 1001.2007(d). Thus, in the
case at hand, where the record shows that Petitioner was convicted
of a program related offense, there is nothing left for the I.G. to
prove. Petitioner cannot use these administrative proceedings to
collaterally attack her prior conviction by arguing that she was
induced by fraud to plead to an offense for which she was not
really guilty. Douglas Schram, R.Ph., DAB 1372, at 12 - 13 (1992);
Sonia M. Geourzoung, M.D., DAB CR286 (1993); Peter J. Edmonson, DAB
1330 (1992).
Finally, I note that I have no authority to alter the effective
date of an exclusion directed and imposed by the I.G. where the
I.G. has acted within the discretion afforded by the statute and
regulations in establishing the effective date of the exclusion.
Shanti Jain, M.D., DAB 1398 (1993); Douglas Schram, M.D., DAB 1372
(1992); Fred R. Spierer, DAB CR359 (1995). Petitioner has made no
showing that the I.G.'s imposition of an exclusion upon her was
unreasonably delayed. In any event, this is not the appropriate
forum for a challenge of that type.
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. I admit into evidence Petitioner's Exhibits (P. Ex.) 1 and 2
and I.G. Exhibits (I.G. Ex.) 1 - 8. I reject I.G. Ex. 9, which is
a copy of the notice letter informing Petitioner of her exclusion.
In my Order of June 22, 1995, I instructed the parties not to file
the notice letter as an exhibit.