Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Bobby D. Layman, D.D.S., Petitioner,
- v. -
The Inspector General.
DATE: September 16, 1997
Docket No. C-97-224
Decision No. CR491
DECISION
By letter dated November 22, 1996, Bobby D. Layman, D.D.S.,
the Petitioner herein, was notified by the Inspector General
(I.G.), of the U.S. Department of Health and Human Services,
of her determination to exclude Petitioner 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), 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 filed a request for review of the I.G.'s action by
an administrative law judge of the Departmental Appeals
Board. The I.G. moved for summary disposition.
Because I 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 granted the I.G.'s motion and decided the case
on the basis of the parties' written submissions. The I.G.
has submitted eight proposed exhibits (I.G. Exs. 1-8).
Petitioner did not object to these exhibits. Petitioner has
submitted 75 proposed exhibits. (P. Exs. 1-75) The I. G.
has not objected to these exhibits. I base my decision in
this case on these exhibits, the applicable law, and the
arguments of the parties.
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.
I. Petitioner's Argument
Petitioner contends that his conviction falls within the
parameters of the permissive exclusion authority of section
1128(b)(1) of the Act. He also maintains that the length of
exclusion is excessive under the circumstances of his case.
He further contends that his exclusion should be waived
because he is the only dentist in the region that accepts
Medicaid patients and also that the Puna area, where
Petitioner practices, would "suffer greatly" as a result of
his exclusion. Finally Petitioner asserts that to exclude him
would "be to convict and sentence him twice."
II. Findings of Fact and Conclusions of Law
1. During the time relevant to this case, Petitioner was a
dentist licensed to practice in the State of Hawaii.
2. On November 3, 1994, a three-count complaint was filed
against Petitioner in the Circuit Court of the First Circuit
for the State of Hawaii, charging Petitioner with filing
false Medicaid claims in violation of section 346-43.5,
Hawaii Revised Statutes. I.G. Ex. 1.
3. Count 1 of the November 3, 1994 complaint charged that,
on or about January 20, 1993, Petitioner made a false claim
for reimbursement from the State of Hawaii's Medicaid program
in the treatment of patient Henry M. I.G. Ex. 1 and 2.
4. On November 15, 1994, Petitioner was convicted, on his
plea of no contest, to Count 1 of the November 3, 1994
complaint. I.G. Ex. 3.
5. As a result of his conviction, Petitioner was sentenced
to a 5-year term of probation and ordered to make restitution
in the amount of $1,732.68 and to perform 50 hours of
community service. I.G. Ex. 3.
6. Petitioner's plea of no contest which was accepted by the
court and the entry of a judgment of conviction both satisfy
the definition of conviction found in section 1128(i) of the
Act for purposes of mandatory exclusion.
7. Petitioner's criminal conviction for filing false
Medicaid claims is related to the delivery of an item or
service under the Medicaid program, within the meaning of
section 1128(a)(1) of the Act.
8. The Secretary is required by section 1128(a)(1) of the
Act to exclude Petitioner from participation in Medicare and
to direct the State to exclude him from participation in
State health care programs because of his conviction in a
program-related offense.
9. The mandatory minimum period of an exclusion of a person
convicted of a program-related offense is five years.
Section 1128(c)(3(B) of the Act.
10. The Secretary has delegated to the I.G. the duty to
impose the mandatory exclusion on a person convicted of a
program related offense. 48 Fed. Reg. 21,661 (1983); 42
C.F.R. § 1001.101.
11. Petitioner is subject to a minimum mandatory exclusion
of five years for his conviction of a criminal offense
related to the delivery of an item or service under the
Medicaid program.
III. 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.
IV. Discussion
The law relied upon by the I.G. to exclude Petitioner
requires, initially, that he be convicted of a crime.
Section 1128(i) of the Act 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
judgment of conviction has been withheld.
In this case, sections 1128(i)(1) and (3) of the Act are
clearly applicable. The Circuit Court of the First Circuit
of Hawaii on November 15, 1994, accepted Petitioner's plea of
no contest and entered a judgment of conviction against him
for medical assistance fraud in violation of section 346-43.5
of the Hawaii Revised Statutes. The fact Petitioner pled no
contest to a crime and the court accepted his plea
constitutes a conviction within the meaning of section
1128(i)(3) of the Act. Also, the entry of the judgment of
conviction by the court is within the definition of
conviction as set forth in section 1128(i)(1) of the Act.
Petitioner was therefore convicted of a criminal offense
within the meaning of both section 1128(i)(1) and (3) of the
Act.
Petitioner's conviction was also related to the delivery of
items or services under the Medicaid program, as required by
section 1128(a)(1) of the Act. Petitioner himself concedes
that he was "convicted of medical assistance fraud in state
court in connection with the delivery of a health care
service or item under the Medicaid program." P. Br. at 3.
Petitioner's crime, defrauding the Medicaid program by
billing for dental appliances and fittings that were never
provided, is related to the delivery of Medicaid services
even though no services were in fact rendered with respect to
Petitioner's misconduct. Jack W. Greene, DAB CR19 (1989),
aff'd DAB No. 1078 (1989); aff'd Greene v. Sullivan, 731
F.Supp. 835 (E.D. Tenn. 1990). Exclusion under section
1128(a)(1) is mandated whenever, as here, an individual is
convicted in state court of a criminal offense related to the
delivery of items or services under the Medicaid program.
Section 1128(a)(1) of the Act.
Petitioner is therefore incorrect in his assertion that he
should be excluded under the permissive exclusion provision
of section 1128(b)(1) of the Act rather than the mandatory
exclusion provision of section 1128(a)(1). The DAB has
consistently held that the Secretary is under no obligation
to proceed under the permissive exclusion provisions of
section 1128(b) of the Act; once a person has been convicted
of a program-related criminal offense, exclusion is
mandatory. Muhammad R. Chaudhry, M.D., DAB CR326 (1994); Leon
Brown, M.D., DAB CR83, aff'd DAB No. 1208 (1990).
[It] is well settled that the I.G. has no discretion
to impose a permissive exclusion for conduct that is
program-related and falls within the ambit of the
mandatory exclusion provision of section 1128(a),
even if the conduct also can be fairly characterized
under either the permissive or mandatory exclusion
provisions.
Jack W. Greene, DAB No. 1078, at 9-11 (1989), aff'd Greene v.
Sullivan, 731 F. Supp 835, 838 (E.D. Tenn. 1990). In other
words, 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)." Brenda
J. Motley, DAB CR414 (1996), at 6.
Accordingly, Petitioner was appropriately excluded under the
mandatory exclusion provision of section 1128(a) because his
exclusion was based on a conviction for a Medicaid related
crime. "Proof that a criminal conviction had occurred, and
that the offense was program-related, ends the inquiry as to
whether the mandatory exclusion is justified." Sudarshan K.
Singla, M.D., DAB CR332 (1994), at 4.
I further find that the length of the exclusion imposed on
Petitioner is appropriate because the minimum mandatory
length of exclusion under section 1128(a)(1) is five years.
Section 1128(c)(3)(B) of the Act; 42 C.F.R. section
1001.102(a). Despite the fact that the five-year minimum is
mandatory under section 1128(a)(1), Petitioner argues that
the actions that resulted in his criminal conviction are not
so egregious as to justify a five-year program exclusion. I
find no merit in his contention. The facts underlying
Petitioner's conviction are not relevant in this inquiry;
Petitioner's plea provides the requisite basis for his
mandatory exclusion and any arguments relating to the nature
or magnitude of his crime have no bearing on the I.G.'s
exclusion authority. Petitioner may not challenge the I.G.'s
authority to exclude him from the Medicare and State health
care programs by denying that he is guilty of the action for
which he was convicted at the state level. The I.G. and the
ALJ are not authorized to look behind the conviction to
determine whether it is valid and may not consider evidence
to mitigate the exclusion. Peter J. Edmondson, DAB No. 1330
(1992). Petitioner may not collaterally attack his criminal
conviction in this administrative forum. Sonia M.
Geourzoung, M.D., DAB CR286 (1993); Douglas Schram, M.D., DAB
No. 1372 (1992).
Petitioner also maintains that his exclusion should be
modified because his crime did not "rise to the same level"
as some of the offenses committed by others who have been
excluded under section 1128(a)(1) of the Act. I reject this
argument also. All exclusions imposed under section
1128(a)(1) must be imposed for a minimum period of five years
regardless of the facts surrounding the underlying
conviction. "It is not unlawful for the same exclusionary
period to be imposed upon individuals who commit crimes of
varying severity." Singla, at 3 (Petitioner was
appropriately excluded for five years under section
1128(a)(1) although he argued that he was convicted only of a
misdemeanor and was not convicted of having acted with
criminal intent); see also Maria M. Melendez, M.D., DAB CR398
(1995) (doctor excluded for five years under section
1128(a)(1) based on conviction for writing a false
prescription for which Medicaid was billed); Jack W. Greene,
supra, (pharmacist excluded for five years under section
1128(a)(1) based on conviction for billing the Medicaid
program for brand name drugs while he dispensed cheaper,
generic medication).
Petitioner further maintains that his exclusion should be
shortened because the community where he practiced will
suffer as a result and he has submitted numerous statements
of support from his former patients. I find that I have no
authority to consider Petitioner's alleged standing in the
community nor the community's need for dental services in a
section 1128(a)(1) exclusion. In Maria M. Melendez, M.D.,
supra, a petitioner's similar argument that any violation of
law on her part was more than offset by her community service
was irrelevant to the ALJ's review of her exclusion. In
Benjamin P. Council, M.D., DAB CR391 (1995), it was held that
the ALJ had no authority to consider statements attesting to
petitioner's extensive pro bono work and exemplary conduct as
a basis for reducing the mandatory minimum term of exclusion.
See also Roberta E. Miller, DAB CR367 (1995) (ALJ had no
authority to consider petitioner's successful completion of
probation and the statements attesting to her good
character). The sole issue is whether Petitioner was
convicted of a program related criminal offense and if so,
then he must be excluded for at least five years.
Petitioner also claims that his exclusion must be moderated
because he is the sole source of essential dental services in
his community who accepts Medicaid patients. Pursuant to
section 1128(c)(3)(B) of the Act, the Secretary may, at the
request of a State, waive an exclusion imposed under section
1128(a)(1) of an individual who is the sole community
physician or the sole source of essential specialized
services in a community. Petitioner does not assert that any
waiver request has been made by the State of Hawaii's
Medicaid director on his behalf. A waiver request must come
from the State Medicaid director and it is not sufficient
that the Petitioner requests the waiver. The I.G. can
consider a waiver request only upon "a request from a State
health care program" and this request "must be in writing and
from an individual directly responsible for administering the
State health care program." 42 C.F.R. § 1001.1801(a). The
ALJ has no authority to grant a waiver. Benjamin P. Council,
M.D., supra; Richard G. Philips, D.P.M., DAB No. 1279 (1991).
Finally, Petitioner maintains that "[t]o exclude him from the
program would be to convict and sentence him twice" because
he has made restitution, performed community service, and
abided by the terms of his probation, pursuant to the
sentence imposed by the State of Hawaii. Such claim is an
argument that exclusion following a state conviction violates
the Constitutional protection against double jeopardy. The
ALJ, however, has no authority to rule on the
constitutionality of the I.G.'s actions. See Roberta Miller,
DAB CR367 (1995). Moreover, the appellate panel of the DAB
and federal courts have both found that exclusions imposed
under section 1128 of the Act are remedial in nature, rather
than punitive, and do not violate the double jeopardy
provisions of the Constitution. Id. at 6-7; Manocchio v.
Kusserow, 961 F.2d 1539, 1541 (11th Cir. 1992); Kahn v.
Inspector General of the U.S. Dept. of Health and Human
Services, 848 F. Supp. 432 (S.D.N.Y. 1994); Westin v.
Shalala, 845 F.Supp. 1446 (D. Kan. 1994). Because the
purpose of Petitioner's exclusion is to protect program
beneficiaries from future misconduct from a provider who has
proven himself to be untrustworthy, and not to punish
Petitioner, this exclusion is remedial in nature and not
violative of double jeopardy. Paul Karsch, DAB CR454 (1997).
V. 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 his conviction of a criminal offense related to the
delivery of an item or service under the Medicaid program.
________________________
Joseph K. Riotto
Administrative Law Judge