Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Sabina E. Acquah, Petitioner,
- v. -
The Inspector General.
DATE: July 10, 1997
Docket No. C-97-021
Decision No. CR480
DECISION
I conclude that Petitioner, Sabina E. Acquah, is subject to a
five-year minimum mandatory period of exclusion from
participation in the Medicare, Medicaid, Maternal and Child
Health Services Block Grant and Block Grants to States for Social
Services programs and therefore, I affirm the Inspector General's
determination.
I. Procedural History
By letter dated August 21, 1996, Sabina E. Acquah, the Petitioner
herein, was notified by the Inspector General (I.G.), U.S.
Department of Health and Human Services (HHS), that it had been
decided to exclude Petitioner 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.'s rationale was that
exclusion, for at least five years, was mandated by 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. The I.G. moved for summary disposition.
Because I have determined that there are no facts of 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.
II. 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 the
Medicare or Medicaid programs to be excluded from participation
in such programs for a period of at least five years.
III. Issues, Findings of Fact and Conclusions of Law
A. Issues
The issues in this case are whether Petitioner was convicted of a
criminal offense under federal or State law; and if Petitioner
was so convicted, whether the conviction relates to the delivery
of an item or service under Medicaid.
B. Findings of Fact and Conclusions of Law
1. Maryland's Medicaid program is administered by the Maryland
Department of Health and Mental Hygiene ("DHMH"). I.G. Exhibit
(Ex.) 5.
2. Chesapeake Health Plan, Inc. (Chesapeake) is a Health
Maintenance Organization ("HMO") incorporated in the State of
Maryland. I.G. Ex. 10.
3. Pursuant to an HMO contract between Chesapeake and DHMH,
Chesapeake enrolls persons eligible for Medicaid. DHMH then pays
Chesapeake a monthly fee for each patient served by Chesapeake.
Chesapeake is responsible for providing, arranging, and paying
for all medical items and services to which enrollees are
entitled under the Medicaid State Plan. I.G. Ex. 10.
4. HMOs in Maryland are allowed to recruit new patients.
However, HMOs are not provided the names and addresses of
Medicaid-eligible families, because disclosing this information
is prohibited by Maryland law. I.G. Ex. 5.
5. At all times relevant to this proceeding, Petitioner was the
Medicaid Marketing Director employed by Chesapeake. In this
position, Petitioner oversaw the HMO's efforts, through its
marketing representatives, to enroll Medicaid recipients. I.G.
Exs. 3, 4.
6. Chesapeake paid its marketing representatives a commission
based on the number of Medicaid recipients they successfully
enrolled each month. I.G. Ex. 5.
7. The Medicaid Fraud Control Unit of the Maryland Office of
Attorney General found that Petitioner had conspired with
Chesapeake marketing representatives to illegally obtain Medicaid
"leads" in order to assist them in locating and persuading
Medicaid recipients to enroll in Chesapeake. I.G. Exs. 3, 4.
8. On June 13, 1995, a Criminal Indictment was filed by the
State Attorney General charging Petitioner with conspiracy to
bribe a State official and conspiracy to obtain unlawful access
to a government record, from September 1993 through February
1995, in violation of the Annotated Code of Maryland, Article 27,
sections 22 and 38, and the State Government Article, section 10-
627(a). I.G. Ex. 3.
9. Petitioner entered a plea of not guilty. On December 20,
1995, after a jury trial in the Circuit Court for Baltimore City,
at which Petitioner was represented by counsel, the jury returned
a verdict of guilty as to Count 2 (conspiracy to obtain unlawful
access to a government record).
10. On January 19, 1996, judgment was entered against Petitioner
by Judge Hammerman of the Circuit Court for Baltimore City, and
Petitioner was ordered to pay a $1000 fine and costs. I.G. Ex.
6.
11. Petitioner's conviction was upheld by the Maryland Court of
Special Appeals.
12. The finding of Petitioner's guilt by the jury, and the entry
of a judgment of conviction against Petitioner by Judge Hammerman
of the Circuit Court, both satisfy the definition of "conviction"
found in section 1128(i) of the Act for purposes of mandatory
exclusion. Findings 9, 10.
13. For a conviction to subject an individual or entity to
exclusion under section 1128(a)(1) of the Act, there must be some
nexus or common sense connection between the criminal offense for
which the individual or entity has been convicted and the
delivery of an item or service under the Medicare or Medicaid
programs. Berton Siegel, D.0., DAB No. 1467, at 5 (1994).
14. There exists a nexus or common sense connection between the
criminal offense for which Petitioner was convicted and the
delivery of an item or service under Medicaid.
15. The criminal offense which provided the basis for
Petitioner's conviction constitutes a criminal offense related to
the delivery of an item or service under Medicaid within the
meaning of section 1128(a)(1).
16. Petitioner cannot collaterally attack her criminal
conviction in these administrative proceedings.
17. The Secretary is required under section 1128(a)(1) of the
Act to exclude Petitioner from participation in Medicare and
Medicaid, and to direct the State to exclude her from
participation in State health care programs, because of her
conviction of a program-related offense.
18. The mandatory minimum period of exclusion for a person
convicted of a program-related offense is five years, pursuant to
sections 1128(a)(1) and 1128(c)(3)(B) of the Act.
19. The Secretary has delegated to the I.G. the duty to impose a
mandatory exclusion when an individual is convicted of a program-
related offense, pursuant to section 1128(a) of the Act.
20. Petitioner is subject to the mandatory minimum exclusion of
five years for her conviction of a criminal offense related to
the delivery of an item or service under the Medicaid program.
21. 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.
22. Petitioner's exclusion from the Medicare and Medicaid
programs does not constitute unconstitutional double jeopardy.
IV. Petitioner's arguments
Petitioner contends that, although she was found guilty of
conspiracy to obtain unlawful access to a government record, the
facts of her case do not establish that she was actively involved
in the scheme for which she has been convicted and, also, that
she did not have criminal intent.
She further maintains that her offense was not related to the
Medicaid program, in that her job responsibilities at Chesapeake
Health Plan were not directly related to medical services, nor
did she provide medical services to Medicaid recipients.
Although she acknowledges that she was Director of Marketing, she
contends that she is not responsible for the scheme, as she was
not an officer or owner of Chesapeake Health Plan.
Finally, Petitioner contends that it is unconstitutional double
jeopardy to subject her to exclusion, as she has already been
punished in the criminal matter by having to pay a fine.
V. Discussion
The first requirement for mandatory exclusion pursuant to section
1128(a)(1) of the Act is that the individual or entity in
question must have been convicted of a criminal offense under
federal or state law. In the present case, I find that
Petitioner was "convicted" of a criminal offense within the
meaning of sections 1128(i)(1) and (2) of the Act. 2/ In the
matter at hand, a jury heard the case presented in the Circuit
Court for Baltimore City and found Petitioner guilty. The
finding of guilt by the jury establishes, pursuant to section
1128(i)(2) of the Act, that Petitioner was "convicted" for
purposes of this exclusion. Further, Judge Hammerman of that
Court entered a judgment of conviction against Petitioner. The
fact that the Circuit Court judge entered a judgment of
conviction against Petitioner also establishes, pursuant to
section 1128(i)(1) of the Act that Petitioner was "convicted."
Next, the statute requires that the criminal activity must have
been related to the delivery of a health care item or service
under the Medicare or Medicaid programs. The determination of
whether a conviction is related to the delivery of an item or
service under the programs "must be a common sense determination
based on all relevant facts as determined by the finder of fact,
not merely a narrow examination of the language within the four
corners of the final judgment and order of the criminal trial
court." Surabhan Ratanasen, M.D., DAB No. 1138 at 5 (1990)
(citing Jack W. Greene, DAB No. 1078 (1989), aff'd sub nom.
Greene v. Sullivan, 731 F.Supp. 835 (E.D. Tenn. 1990). As
otherwise stated, "there must be some nexus or common sense
connection between the criminal offense for which the individual
or entity has been convicted and the delivery of an item or
service under the Medicare or Medicaid programs." Jacqueline Q.
Cordle-Boggs, DAB CR311 at 6 (1994).
The nexus between Petitioner's offense and the delivery of
Medicaid services is evident upon consideration of the scheme in
which Petitioner was implicated. Petitioner was the individual
at Chesapeake responsible for overseeing the enrollment of
persons eligible for Medicaid into the HMO. I.G. Exs. 3, 4.
Petitioner participated in an ongoing conspiracy in which
Chesapeake representatives sought to use illegally obtained
names, addresses, and other confidential information to solicit
and attempt to enroll Medicaid recipients into Chesapeake. I.G.
Exs. 3, 4. In turn, Chesapeake billed or would have billed the
Medicaid program for each Medicaid recipient so enrolled. I.G.
Ex. 10. The prospect of payment from Medicaid was the impetus
behind the scheme. Without this connection, Chesapeake would not
have compelled its marketing representatives to enroll Medicaid
recipients, and the marketing representatives would not have
unlawfully obtained the Medicaid "leads." See Asadollah
Amrollahifar, Ph.D, DAB CR238 (1992).
Significantly, in other cases, administrative law judges (ALJ)
assigned to the Departmental Appeals Board (DAB) have held that
selling or buying Medicaid "leads" or conspiring to commit such
offense is a program-related offense. In ViNita R. Warren, DAB
CR423 (1996), the petitioner was involved in the very same scheme
as Petitioner in this case. The petitioner was a Maryland State
employee who was convicted of receiving bribes in exchange for
disclosing Medicaid "leads" to Chesapeake marketing
representative James Donovan. The ALJ found that the offense was
program-related, and analogous to numerous DAB decisions
upholding exclusions for convictions of receiving bribes or
kickbacks for referrals of Medicaid or Medicare business, and he
upheld the five-year exclusion.
In Fred R. Spierer, DAB CR359 at 4 (1995), and Chris M. Spierer,
DAB CR360 at 4 (1995), the ALJ found that the offenses of
conspiracy to commit bribery and conspiracy to commit fraudulent
acts, respectively, were program-related. The petitioners were
principals of a medical supply company who knew and had shown
support for operating with Medicare "leads" illegally obtained by
the company's employees. The ALJ in both Spierer cases
determined that five-year exclusions pursuant to section 1128(a)
were proper, because the offenses were related to the Medicaid
program.
The offenses in Fred R. Spierer, Chris M. Spierer, and ViNita R.
Warren, are virtually indistinguishable from Petitioner's
offense. These cited cases establish that Petitioner's offense
is related to the delivery of an item or service under the
Medicaid program. The nexus between Petitioner's offense and the
Medicaid program clearly exists for purposes of section
1128(a)(1) of the Act and Petitioner's conviction is for an
offense related to the delivery of Medicaid items or services.
Petitioner also argues that she did not provide medical services
herself to Medicaid recipients, and that she was not an officer
or owner of the HMO. These facts are of no consequence.
Congress intended the imposition of a mandatory exclusion
whenever the Medicare or Medicaid programs are victimized by the
offense at issue, whether or not this offense involved actual
delivery of care by the convicted individual. Napoleon S.
Maminta, M.D., DAB No. 1135 at 12 (1990). The regulations are
also clear that program-related offenses include "the performance
of management or administrative services relating to the delivery
of items or services under any such programs." 42 C.F.R. §
1001.101.
In this proceeding, Petitioner seeks to attack the criminal
conviction further, alleging that the facts do not establish that
she participated in the conspiracy and that she also lacked
criminal intent. I find that I have no authority to consider
such claims. Once it is shown that an appropriate program-
related criminal conviction has occurred, exclusion is mandatory
under section 1128(a) as a purely derivative action and the
Secretary is not permitted to look behind the conviction. Peter
J. Edmonson, DAB CR163 (1991), aff'd, DAB No. 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 No. 1165 (1990). Moreover, assertions by a petitioner that
he or she is actually innocent cannot be addressed in this forum.
Edmonson, DAB No. 1330.
Petitioner also contends that her exclusion rises to the level of
unconstitutional double jeopardy. On this issue, the impact of
the double jeopardy clause on civil and criminal multiple
"punishments" was extensively considered in U.S. v. Halper, 490
U.S. 435 (1985). There, the Supreme Court recognized that in a
rare instance, a civil penalty may be so extreme and so
disproportionate to the government's actual damages and expenses
as to constitute prohibited punishment. Id at 447-51. The
Halper court specifically recognized that the question of double
jeopardy was not dependent solely on whether the penalty was
characterized as "civil" or "criminal." Rather, the focus
was on
the purpose and effect of the penalties on the particular case.
The remedial nature of the mandatory exclusion was examined in
Manocchio v. Sullivan, 768 F. Supp. 814 (S.D. Fla. 1991). The
Court held that there was sufficient public interest in excluding
convicted providers that the exclusion did not violate the double
jeopardy clause. Therefore, the Court found that as the provider
failed to establish that there was no rational relationship
between the nonpunitive interests (of protecting the integrity of
the Medicare/Medicaid programs) and the exclusion period, his
appeal must be dismissed.
The remedial nature of the exclusion was also considered in
Greene v. Sullivan, 731 F.Supp. 838, 840 (E.D. Tenn. 1990).
There, as in the instant case, the government sought to protect
the Medicare and Medicaid programs by excluding persons convicted
of defrauding them. These goals, the Court declared, "are
clearly remedial and include protecting beneficiaries,
maintaining program integrity, fostering public confidence in the
program, etc." 731 F.Supp. at 840. Thus, the exclusion remedy
is more analogous to the revocation of a professional license for
misconduct than it is punitive and there is no double jeopardy.
731 F.Supp. at 840; DeWayne Franzen, DAB No. 1165, at 11-12
(1990).
Clearly, Petitioner here has not established that her exclusion
presents one of those rare cases in which the civil penalty is
extreme and bears no rational relation to the remedial goals.
The primary purpose of this exclusion is not to punish
Petitioner, but to protect the Medicare and Medicaid programs,
and their beneficiaries and recipients from future misconduct.
See Manocchio v. Sullivan, supra.
VI. Conclusion
Petitioner's five-year exclusion 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 the Medicaid program.
Joseph K. Riotto
Administrative Law
Judge
* * * Footnotes * * *
1. Unless otherwise indicated, hereafter I refer to
all programs from which Petitioner has been excluded, other than
Medicare, as "Medicaid."
2. For a Petitioner to be "convicted" of a criminal
offense within the meaning of section 1128(i) of the Act, it is
only necessary to find that one of the four subsections of
section 1128(i) has been satisfied. Here, however, I found that
Petitioner's conviction fell within two subsections of that
section.