DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of:
Robert M. Buncher,
Petitioner,
- v. -
The Inspector General.
DATE: September 27, 1989
Docket No. C-102
DECISION OF ADMINISTRATIVE LAW JUDGE
ON MOTION FOR SUMMARY DISPOSITION
On December 29, 1988, the Inspector General (the I.G.) notified Petitioner that
he was being excluded
from participation in Medicare and State health care programs for five years.
The I.G. told Petitioner that
he was being excluded as a result of his conviction in a Florida court of a
criminal offense related to the
delivery of an item or service under Medicaid. Petitioner was advised that exclusions
from participation in
Medicare and Medicaid of individuals or entities convicted of such an offense
are mandated by section
1128(a)(1) of the Social Security Act. The I.G. further advised Petitioner that
the law required that the
minimum period of such an exclusion be not less than five years.
Petitioner timely requested a hearing, and the case was assigned to me for
a hearing and a decision. The
I.G. moved for summary decision, and Petitioner opposed the motion. I heard
oral argument of the motion
on September 13, 1989.
I have considered the parties' arguments, their fact submissions, and applicable
law. I conclude that the
exclusions imposed and directed by the I.G. in this case are mandated by law.
Therefore, I enter summary
disposition in favor of the I.G.
ISSUE
The issue in this case is whether the exclusions imposed and directed by the
I.G. against Petitioner are
mandated by law.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On December 28, 1987, Petitioner was charged with two felony offenses, pursuant
to Florida law. I.G.
Ex. 4.
2. Count I of the information filed against Petitioner charged him with knowingly
aiding or abetting in the
filing of false or unauthorized claims for services under the Florida Medicaid
program. I.G. Ex. 4.
3. On July 25, 1988, Petitioner entered a plea of nolo contendere to Count
I of the information filed
against him. I.G. Ex. 1.
4. Petitioner was convicted of a criminal offense related to the delivery of
an item or service under
Medicaid. I.G. Ex. 1, 4.
5. Petitioner was convicted of a criminal offense within the meaning of section
1128(i) of the Social
Security Act. Findings 1-3; Social Security Act, section 1128(i).
6. Petitioner was convicted of a criminal offense as defined by section 1128(a)(1)
of the Social Security
Act. Finding 4; Social Security Act, section 1128(a)(1).
7. The Secretary of Health and Human Services (the Secretary) delegated to
the I.G. the authority to
determine, impose, and direct exclusions pursuant to section 1128 of the Social
Security Act. 48 Fed. Reg.
21662 (May 13, 1983).
8. On February 28, 1989, the I.G. excluded Petitioner from participating in
the Medicare program and
directed that he be excluded from participating in Medicaid, pursuant to section
1128(a)(1) of the Social
Security Act.
9. The exclusions imposed and directed against Petitioner by the I.G. were for
five years, the minimum
period required by law for exclusions imposed and directed pursuant to section
1128(a)(1) of the Social
Security Act. Social Security Act, section 1128(c)(3)(B).
10. The exclusions imposed and directed against Petitioner by the I.G. are
mandated by law. Finding 4;
Social Security Act, sections 1128(a)(1); 1128(c)(3)(B).
ANALYSIS
There are no disputed material facts in this case. The record establishes that
Petitioner pleaded nolo
contendere in a Florida court to a single count of fraud against the Florida
Medicaid program. Based on
this conviction, the I.G. excluded Petitioner from participating in Medicare
and directed that he be
excluded from participating in Medicaid, for five years.
The I.G. contends that Petitioner was convicted of a criminal offense related
to the delivery of an item or
service under the Medicaid program. I.G.'s Brief at 5. The I.G. argues that
section 1128 of the Social
Security Act mandates that individuals convicted of such offenses be excluded
from participation in
Medicare and Medicaid. Id. Furthermore, according to the I.G., Petitioner was
excluded for the minimum
period mandated by law, inasmuch as section 1128(c)(3)(B) of the Social Security
Act requires that an
individual convicted of an offense, as defined by section 1128(a)(1), be excluded
for at least five years. Id.
Petitioner conceded at oral argument that he was convicted of a criminal offense
related to the delivery of
an item or service under the Medicaid program, as defined by section 1128(a)(1)
of the Social Security
Act. Petitioner's principal argument is that the five year exclusions imposed
and directed against him are
unreasonable, given the particular facts of his case. According to Petitioner,
he should have a hearing and
the opportunity to establish the presence of mitigating factors in his case.
P.'s Brief at 3-5.
I disagree with Petitioner's contentions. The law not only mandates exclusions
for individuals convicted of
offenses related to the delivery of an item or service under the Medicaid program,
it requires that the term
of such exclusions be for at least five years. Social Security Act, section
1128(c)(3)(B). The law does not
permit any exceptions to this rule, regardless of the equities that may be present
in particular cases.
Petitioner's unique circumstances are not relevant in assessing the reasonableness
of the five-year
exclusions imposed and directed against him.
Petitioner argues that to decide this case without an evidentiary hearing as
to the reasonableness of the
length of the exclusions imposed and directed against him would contravene section
205(b) of the Social
Security Act which provides for de novo hearings to review certain decisions
by the Secretary. I agree that
Petitioner's hearing rights in this case are provided by section 205(b), and
that this law requires de novo
hearings. But the law does not require the administrative law judge to admit
and consider evidence which
is not relevant to the issues in a case. In this case, Petitioner offered evidence
to show that the five-year
exclusions imposed and directed against him are unreasonable. This evidence
is not relevant. I have
provided Petitioner with an opportunity to contest the issue which is relevant--that
is, whether Petitioner
was convicted of an offense related to the delivery of an item or service under
the Medicaid program.
Petitioner also contends that he should be permitted to offer evidence concerning
the reasonableness of the
exclusions in this case, in order to create a record for judicial review of
my decision.
I disagree with the Petitioner's contention. I have concluded that evidence
offered to show the
reasonableness of exclusions for less than five years is not relevant, because
the law mandates a minimum
five year period of exclusion. It is inappropriate for me to admit irrelevant
evidence on the possibility that
a reviewer might disagree with my assessment of the issues. Were I to do so,
there would be no boundaries
on the admissibility of evidence in an administrative hearing.
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the I.G.'s
exclusions were mandated by
law. Therefore, I am entering a decision in favor of the I.G. in this case.
The five-year exclusions imposed
and directed against Petitioner are sustained.
____________________________
Steven T. Kessel
Administrative Law Judge