$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Brenda J. Motley,
Petitioner,
- v. -
The Inspector General.
DATE: March 21, 1996
Docket No. C-95-157
Decision No. CR414
DECISION
By letter dated June 16, 1995, Brenda J. Motley, the Petitioner
herein, was notified by the Inspector General (I.G.), of the United
States Department of Health & Human Services (HHS), that it had
been decided to exclude her for a period of five years from
participation in the Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social Services
programs. 1/ The I.G. asserted that an exclusion of at least five
years is mandatory under sections 1128(a)(1) and 1128(c)(3)(B) of
the Social Security Act (Act) because Petitioner had been convicted
of a criminal offense related to the delivery of an item or service
under Medicaid.
Petitioner filed a timely request for review of the I.G.'s action.
On August 21, 1995, I held a prehearing conference in this case.
During the conference, the parties agreed to proceed by filing
briefs supported by documentary evidence.
Thereafter, the I.G. filed a brief and eight exhibits. I identify
these exhibits as I.G. Ex. 1 through 8. Petitioner filed a
response brief. The I.G. filed a reply. Since Petitioner has not
objected to the exhibits offered by the I.G., I admit I.G. Ex. 1
through 8 into evidence.
I have considered the parties' arguments, supporting exhibits, and
the applicable law. I conclude that there are no material factual
issues in dispute (i.e., the only matter to be decided is the legal
significance of the undisputed facts). I conclude also 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.
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 (FFCLs)
1. During the period relevant herein, Petitioner was employed as
a Lead Community Living Specialist at Tresco, Inc. (Tresco). I.G.
Ex. 1.
2. Tresco is a Medicaid provider of "Developmental Disabilities
(DD) Home and Community-Based Waiver Services," including
supervised living, assisted living, supported living, day
habilitation, individual and group supported employment, personal
and social support, behavior therapy, behavior implementation, and
personal care. As part of its program, Tresco provides oversight
and management of funds belonging to Medicaid recipients. I.G. Ex.
8; Petitioner's Response Brief at 5.
3. As part of her duties as a Lead Community Living Specialist,
Petitioner was responsible for the funds belonging to disabled
Medicaid recipients assigned to her. Petitioner's Response Brief
at 5.
4. Based on results of an investigation conducted by the Medicaid
Fraud Division of the New Mexico Office of the Attorney General,
the Attorney General filed a criminal complaint on November 2, 1995
in the Magistrate Court, Dona Ana County, New Mexico charging
Petitioner with the felony offense of "Exploitation of a Resident's
Property in excess of two hundred fifty dollars ($250) but not more
than two thousand five hundred dollars ($2500)" (exploitation of
a resident's property). The complaint alleges that Petitioner,
while employed as a Lead Community Living Specialist for Tresco,
knowingly and intentionally took at least $300 belonging to J.M.,
2/ a disabled individual to whom Tresco provided services, and
converted J.M.'s money to her own use. I.G. Ex. 1, I.G. Ex. 2.
5. On December 1, 1994, Petitioner entered into a plea agreement
with the State of New Mexico in which she agreed to plead guilty to
the misdemeanor offense "attempt to commit felony," by attempting
to commit the offense of exploitation of a resident's property.
I.G. Ex. 3.
6. On December 1, 1994, the State Attorney General entered a Nolle
Prosequi to the charge of exploitation of a resident's property and
filed a criminal information charging that Petitioner "attempted to
commit a felony," by attempting to commit the offense of
exploitation of a resident's property. The information alleges
that Petitioner, while employed as a Lead Community Specialist for
Tresco, knowingly and intentionally attempted to take at least $300
belonging to J.M., a disabled individual to whom Tresco provided
services, and attempted to convert J.M.'s money to her own use.
I.G. Ex. 4, I.G. Ex. 5.
7. Pursuant to the plea agreement, on December 1, 1994, Petitioner
pled guilty to attempting to commit the offense of exploitation of
a resident's property. Based on its acceptance of Petitioner's
plea, the court imposed a suspended sentence, ordered her to pay
restitution, and required her to pay a fine or to perform community
service. P. Ex. 6.
8. At the time of the offense for which Petitioner was convicted,
J.M. was a Medicaid recipient. Petitioner's Brief at 2; see I.G.
Ex. 7.
9. 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. 21662.
10. Petitioner's guilty plea, and the court's acceptance of that
plea, constitutes a conviction within the meaning of sections
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. FFCLs 1 - 8.
12. A defendant in a criminal proceeding does not have to be
advised of all the possible consequences which may flow from a
guilty plea, such as temporarily being barred from receiving
government reimbursement for professional services.
13 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.
14. 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.
DISCUSSION
There are no disputed material facts in this case. The record
establishes that 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. For this
reason, Petitioner's five-year exclusion is required as a matter of
law.
The first requirement that must be satisfied in order to establish
that the I.G. had the authority to exclude Petitioner under section
1128(a)(1) of the Act is that Petitioner must have been convicted
of a criminal offense. In this case, it is undisputed that
Petitioner was convicted of a criminal offense within the meaning
of the applicable provision of section 1128 of the Act.
Section 1128(i) of the Act defines the term "convicted of a
criminal offense" to include those circumstances in which a plea of
guilty by an individual has been accepted by a federal, State, or
local court. Act, section 1128(i)(3). In the case at hand, the
undisputed facts establish that Petitioner pled guilty to
attempting to commit the offense of exploitation of a resident's
property. The court's acceptance of that plea is demonstrated by
the fact that it imposed a suspended sentence, ordered Petitioner
to pay restitution, and required Petitioner to pay a fine or to
perform community service. FFCL 7. 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 conclude 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 disputes
this, arguing in effect that the criminal offense which formed the
basis for her conviction was not related to the delivery of an item
or service under Medicaid because funds were not stolen directly
from the Medicaid program. Instead, Petitioner contends that the
underlying criminal offense involves the "alleged misuse of private
funds." Petitioner's Response Brief at 4.
Relevant case precedent establishes that section 1128(a)(1)
encompasses far more than just the theft of Medicare and Medicaid
funds or frauds directed against the programs. For example, in
Jerry L. Edmonson, DAB CR59 (1989), the petitioner, who was a
nursing home administrator, was convicted of the offense of
misapplying funds that he had held in a fiduciary capacity for a
Medicaid recipient. The administrative law judge in Edmonson found
that the protection of Medicaid recipients' funds is an integral
element of the Medicaid services delivered by nursing facilities.
Since the petitioner in Edmonson had been convicted of a criminal
offense affecting an integral element of Medicaid services, the
administrative law judge reasoned that the petitioner's offense was
related to the delivery of Medicaid services within the meaning of
section 1128(a)(1) of the Act.
In the case at hand, the record establishes that Petitioner's
employer, Tresco, provided Medicaid services to individuals with
developmental disabilities. The essential elements of Petitioner's
criminal offense, which was admitted by Petitioner when she pled
guilty, are that Petitioner, in the course of performing her duties
as a Lead Community Specialist, knowingly attempted to take money
belonging to J.M., a disabled person to whom Tresco provided
services, and attempted to convert J.M.'s money to her own use.
Petitioner admits that at the time of the criminal offense, J.M.
was a Medicaid recipient. In addition, Petitioner does not dispute
that one of the services Tresco provided to Medicaid recipients was
the oversight and management of their personal funds. Petitioner
does not dispute that as part of her duties as a Lead Community
Living Specialist, she was responsible for the personal funds of
disabled Medicaid recipients assigned to her.
I conclude that, in the present case, as in Edmonson, the
protection of personal funds belonging to Medicaid recipients is an
integral element of the Medicaid services delivered by Tresco. As
a Lead Community Living Specialist employed by Tresco, Petitioner
had a duty, as part of the services she provided, to protect those
funds. Petitioner's criminal acts interfered with J.M.'s
expectation that he could depend on Tresco to protect his personal
funds. I conclude that Petitioner's criminal offense related to
the delivery of Medicaid services provided by Tresco. In this
case, as in Edmonson, Petitioner's criminal offense had a direct
impact on Medicaid's integrity and it justifies an exclusion under
section 1128(a)(1) of the Act. More recently, I reached this same
conclusion in Roberta E. Miller, DAB CR367 (1995).
Petitioner attempts to minimize her culpability by arguing that she
was only an employee of Tresco. Instead, Petitioner attempts to
shift the blame for her misconduct to her employer, Tresco.
Petitioner argues that she was punished for "inept supervision" and
that she was forced "to suffer the consequences for [Tresco's]
failure to provide safeguards" for protecting funds belonging to
Medicaid recipients. Petitioner argues also that her misconduct
involved bookkeeping errors, rather than the actual conversion of
funds. Petitioner's Response Brief at 4 - 6. These arguments are
essentially an attempt to collaterally attack her conviction on the
basis that she was innocent of any wrongdoing. It is well settled
that a hearing before an administrative law judge to challenge the
basis of an exclusion may not be used to collaterally attack a
State criminal conviction. Richard G. Philips, D.P.M., DAB CR133
(1991). The mandatory exclusion in this case arises from the fact
of the conviction, not its actual validity. It is the fact of the
conviction which triggers the exclusion. Petitioner has recourse
in the court system to rectify errors; they will not be considered
here.
Petitioner suggests that the I.G. could have proceeded against her
under the permissive exclusion portion of section 1128(b) rather
than the mandatory exclusion law. However, it is well established
that when a mandatory exclusion is appropriate, it is irrelevant
that a petitioner's conduct might also satisfy the permissive
exclusion provisions of section 1128(b). Douglas Schram, R.Ph.,
DAB CR215 (1992), aff'd DAB 1372 (1992).
In addition, Petitioner challenges the exclusion on the grounds
that she entered a guilty plea based on assurances by the office of
the State Attorney General that her plea to a misdemeanor offense
would not affect her employment. This argument is essentially the
same as an argument made by a petitioner in the Schram case. In
rejecting this argument, I cited U.S. v. Suter, 755 F.2d 523, 525
(7th Cir. 1985) for the proposition that a defendant in a criminal
proceeding does not have to be advised of all the possible
consequences which may flow from a guilty plea, including
temporarily being barred from receiving government reimbursement
for professional services. Schram, DAB CR215, at 6.
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. Neither the I.G. nor an administrative law judge is
authorized to reduce a five-year mandatory minimum exclusion.
The five-year exclusion is therefore sustained.
Joseph K. Riotto
Administrative Law Judge
1. Unless the context indicates otherwise, I refer to all
programs from which Petitioner has been excluded, other than
Medicare, as "Medicaid."
2. I do not disclose the name of this individual, so as to
respect his privacy.