Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Robert L. Howard,x
Petitioner,
- v. -
The Inspector General.
DATE: February 7, 1997
Docket No. C-96-046
Decision No. CR459
DECISION
By letter dated July 25, 1995, Robert L. Howard
(Petitioner) was notified by the Inspector General
(I.G.), U.S. Department of Health & Human Services, that
she had decided to exclude him 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). (I
use the term "Medicaid" hereafter in this Decision when
referring to the State programs.) The I.G. explained
that the five-year exclusion was mandatory under 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 the
Medicaid program.
Petitioner filed a request for review of the I.G.'s
action.* The I.G. moved for summary disposition,
accompanied by a supporting brief with three exhibits. I
have marked and identified these exhibits as I.G. Ex. 1
through 3. As Petitioner did not object to the
authenticity of these exhibits, I am admitting them into
evidence.
In response, Petitioner submitted a brief with ten
exhibits consisting of abstracts apparently printed off
the Internet, all of the abstracts addressing issues of
substance abuse or addiction or affective disorders. I
have marked and identified these exhibits as P. Ex. 1
through 10. The I.G. objected to the introduction of
these exhibits, contending that the exhibits were
irrelevant to this proceeding. The I.G. contended that
Petitioner apparently submitted the exhibits in support
of a claim that substance abuse or depression should be
considered a mitigating factor that would reduce the
period of his exclusion from participation in the
Medicare and Medicaid programs. The I.G. explained that
mitigating factors are not relevant here since the I.G.
proposed to exclude Petitioner for only the minimum
period of five years, not for a longer period where the
I.G. relies on aggravating factors and where mitigating
factors may be introduced by a petitioner to counter the
aggravating factors.
I find that there is merit to the I.G.'s objection to
Petitioner's exhibits. I have therefore decided not to
accept the exhibits into evidence.
Because I have determined that there are no material and
relevant factual issues in dispute (i.e., the only matter
to be decided is the legal significance of the undisputed
facts), I have granted the I.G.'s motion and decide the
case on the basis of written submissions in lieu of an
in-person hearing.
I affirm 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.
PETITIONER'S ARGUMENT
Petitioner maintains that his criminal conduct arose out
of certain factors which were beyond his ability to
control. Petitioner maintains that he suffered from a
diminished mental capacity due to illness, drug
addiction, and depression. Petitioner contends that his
resulting mental state was the cause of his misconduct
and that he lacked criminal intent. Petitioner maintains
that these are mitigating factors which should lessen his
period of exclusion. Petitioner asserts also that the
regulations pursuant to which he is being excluded treat
more harshly non-physician health care workers than
physicians. In his case, Petitioner asserts that the
effect of the exclusion is to deny him the ability to
practice his profession. Petitioner requested further
that, in the event that I sustain the five-year
exclusion, the period of the exclusion be applied from
either his arrest in September 1992 or his indictment in
October 1993.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. During the period relevant to this case, Petitioner
was a pharmacist in the State of Tennessee.
2. On October 20, 1993, a grand jury in Hamilton County,
Tennessee, issued an indictment charging Petitioner with
theft in excess of $1000 against the Medicaid program.
I.G. Ex. 2.
3. Specifically, Petitioner was accused of forging
numerous prescriptions and billing the prescriptions to
the Medicaid program. I.G. Ex. 1.
4. On December 2, 1993, in the State of Tennessee,
Eleventh Judicial Circuit, Hamilton County, Petitioner
pled guilty to this charge and other drug related
offenses. I.G. Ex. 3.
5. Petitioner's guilty plea, and the court's acceptance
of that plea, constitutes a "conviction" within the
meaning of section 1128(i)(3) of the Act.
6. The Secretary of HHS delegated to the I.G. the
authority to impose exclusions pursuant to section 1128
of the Act.
7. For the mandatory exclusion of section 1128(a)(1) to
apply, the criminal offense giving rise to the conviction
must be related to the delivery of items or services
under the Medicare or Medicaid programs.
8. Petitioner herein was convicted of a criminal offense
"related to the delivery of an item or service" under the
Medicare program, within the meaning of section
1128(a)(1) of the Act.
9. 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.
10. The minimum mandatory period for exclusions pursuant
to section 1128(a)(1) of the Act is five years.
11. I am without authority to consider Petitioner's
arguments that he lacked criminal intent and that he will
suffer hardship by his exclusion.
12. The I.G. properly excluded Petitioner from
participation in the Medicare and Medicaid programs for a
period of five years pursuant to sections 1128(a)(1) and
1128(c)(3)(B) of the Act.
13. Neither the I.G. nor the 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.
14. I do not have the authority to determine the date
from which an exclusion commences.
DISCUSSION
The first statutory requirement for mandatory exclusion
pursuant to section 1128(a)(1) of the Act is that the
individual subject to such action must have been
convicted of a criminal offense under federal or State
law. Section 1128(i)(3) provides inter alia that when a
person enters a guilty plea to a criminal charge and the
court accepts such plea, the individual will be regarded
as having been convicted within the meaning of section
1128 of the Act. In the case at hand, Petitioner
concedes that he entered a plea of guilty to theft
against the Medicaid program and that the court accepted
his plea. Petitioner's admissions are supported by
evidence adduced by the I.G. and I find that Petitioner
was convicted of a criminal offense within the meaning of
the Act.
Next it is required by section 1128(a)(1) that the
criminal offense in question be related to the delivery
of an item or service under Medicare or Medicaid.
Petitioner does not dispute that he pled guilty to the
offense of theft against the Medicaid program.
Departmental Appeals Board (DAB) caselaw has long held
that filing false Medicaid or Medicare claims constitutes
clear program-related misconduct, sufficient to mandate
exclusion. Jack W. Greene, DAB CR19 (1989), aff'd sub
nom. Greene v. Sullivan, 731 F.Supp. 835, 838 (E.D. Tenn.
1990). I find that the offense which Petitioner was
charged and convicted of in the present case constitutes
criminal fraud related to the delivery of Medicaid
services.
Once it is determined that a program-related criminal
conviction has occurred, exclusion is mandatory under
section 1128(a) of the Act as a purely derivative action.
The I.G. is not permitted to look beyond the fact of
conviction. Peter J. Edmondson, DAB CR162, aff'd, DAB
1330 (1992). The intent of the individual committing the
offense is not relevant under section 1128(a). DeWayne
Franzen, DAB CR58 (1989), aff'd, DAB 1165 (1990).
Further assertions by a petitioner that he or she is
actually innocent, that his or her trial was unfair, or
that the statutory five-year minimum mandatory exclusion
specified in section 1128(a) should be modified because
of mitigating circumstances cannot be addressed in this
forum. Edmondson, DAB 1330, at 4-5; Janet Wallace,
L.P.N., DAB CR155 (1991), aff'd, DAB 1326 (1992); Richard
G. Philips, D.P.M., DAB CR133 (1991), aff'd, DAB 1279
(1991). Mitigating factors are not relevant unless the
I.G. relies upon aggravating factors to exclude a
petitioner for more than five years. 42 U.S.C. §
1001.102(c). Petitioner was excluded for only the
minimum period, with no aggravating factors cited. Thus,
in the case at hand, I am without authority to consider
Petitioner's assertions that he lacked the requisite
criminal intent, that the exclusion is unduly harsh as it
would deprive him of his livelihood, and that such
penalty be mitigated. The exhibits that Petitioner
submitted regarding his substance abuse and depression
are therefore not relevant to this appeal. Similarly, I
do not have the authority to determine when a period of
exclusion should begin. Samuel W. Chang, DAB 1198, at 9-
10 (1990). That determination lies within the discretion
of the I.G.
CONCLUSION
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate
that Petitioner herein be excluded from the Medicare and
Medicaid programs for a period of five years because of
his criminal conviction for a program-related offense.
The five-year exclusion is, therefore, sustained.
________________________
Joseph K. Riotto
Administrative Law Judge
* The I.G. disputed the timeliness of
Petitioner's filing. Because the resolution of the
timeliness issue might have required the taking of
testimony at an in-person hearing, I decided to allow
Petitioner the opportunity to go forward and address the
validity of his exclusion.