Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Debra J. Jena, L.P.N., Petitioner,
- v. -
The Inspector General.
Date: October 28, 1997
Docket No. C-97-320
Decision No. CR502
DECISION
By letter dated February 24, 1997, Debra J. Jena, L.P.N., the Petitioner
herein, was notified by the Inspector General (I.G.), United States Department
of Health and 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 Services Block Grant and Block Grants to States for Social
Services programs. 1/ The I.G. explained that the five-year exclusion was
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 a health care 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. Because I have determined that there are no material
and relevant factual issues in dispute (the only matter to be decided is the
legal significance of the undisputed facts), I have decided the case on the
basis of the applicable law and the parties' written submissions in lieu of
an
in-person hearing.
Both parties submitted briefs in this matter (I.G. Br. and P. Br.). The I.G.
submitted seven proposed exhibits (I.G. Ex. 1-7). Petitioner did not object
to these exhibits. I hereby receive into evidence I.G. Ex. 1-7. The I.G.
also submitted a reply brief (I.G. Reply).
I grant the I.G.'s motion for summary disposition. 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 a health care 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 ARGUMENTS
Petitioner contends that she is not subject to mandatory exclusion because
her
offense does not relate to the delivery of a health care item or service under
the Medicaid program. Specifically, she maintains that she did not herself
file false claims with the appropriate State agency and had no knowledge that
such claims involved the Medicaid or Medicare programs. Petitioner relates
that she was employed as a nurse practitioner by Memorial Home Health Care.
She asserts that she was never informed by her employer of the identity of the
ultimate payer for the clients that she served. She simply provided her time
cards to her employer, Memorial Home Health Care, who then submitted the
claims to the appropriate State agency. She asserts also that she was never
directly reimbursed by the State Medicaid agency and never provided her time
cards directly to such agency. She notes that she received all reimbursements
and pay checks from Memorial Home Health Care who paid her at the rate of
$16.50 an hour and that Memorial Home Health Care in turn submitted claims to
Medicaid for her services at the rate of $27.34 an hour.
Petitioner also contends that the I.G. acted improperly in having her
exclusion begin almost two years after the date of her criminal conviction.
Petitioner contends that such exclusion should have begun from the date of her
conviction.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. During the period relevant to this case, Petitioner was a practical
nurse licensed to practice in the State of Indiana and was employed in that
capacity by Memorial Home Health Care.
2. On July 11, 1995, the State of Indiana filed an information
charging Petitioner with Count I, conspiracy to commit Medicaid fraud (a class
D felony), by accepting payment for nursing services which she did not provide
through submission of a falsified time card in furtherance of an agreement
between Petitioner, Rhonda Cravens (the patient's mother), and Coleen Haney
(a
co-worker) to knowingly obtain payments of approximately $18,926.07 from the
Medicaid program by means of false written statements. I.G. Ex 2.
3. The July 11, 1995 information was based on a July 18, 1994
investigative report prepared by the Medicaid Fraud Control Unit of the
Indiana State Attorney General's office. This report alleged that between
August 1993 and May 1994, Petitioner, identified as an employee of Memorial
Home Health Care, falsified her time cards so that the Indiana Medicaid
program was billed for nursing that Petitioner never provided to a Medicaid
recipient, Kristen Cravens, a four-year old child. This report further
alleged that, when the State Medicaid agency reimbursed Petitioner based on
her falsified claims, she shared a portion of the money with Rhonda Cravens,
the child's mother. I.G. Ex 1.
4. On October 17, 1995, the State of Indiana filed an information
charging Petitioner with Count II, conspiracy to commit conversion (a class
A
misdemeanor), by accepting payments from the State Medicaid program from
August 1993 until May 1994 for nursing services which she did not perform by
submitting falsified time cards in furtherance of an agreement between
herself, Rhonda Cravens, and Coleen Haney. I.G. Ex. 3.
5. On October 18, 1995, Petitioner was convicted, based on her plea of
guilty, for conspiracy to commit conversion, Count II of the October 17, 1995
information. I.G. Ex. 4 and 5.
6. As a result of her conviction, Petitioner was sentenced to one year
in prison. Petitioner's sentence was suspended. Petitioner was placed on
probation for one year and assessed court costs. I.G. Ex. 5.
7. Section 1128(a)(1) of the Act provides for the mandatory exclusion
from Medicare and Medicaid of individuals convicted under Federal or State law
of a criminal offense related to the delivery of a health care item or service
under the Medicare or Medicaid program.
8. Petitioner was convicted of a criminal offense within the meaning
of sections 1128(i)(1) and (3) of the Act.
9. Petitioner's conviction for conspiracy to commit conversion is
related to the delivery of a health care item or service under the Medicaid
program within the meaning of section 1128(a)(1) of the Act.
10. Once an individual has been convicted of a program-related criminal
offense under section 1128(a)(1) of the Act, exclusion is mandatory under
section 1128(c)(3)(B) of the Act for a period of at least five years.
11. The I.G. properly excluded Petitioner, pursuant to section
1128(a)(1) of the Act, for a period of five years, as required by the minimum
mandatory exclusion provision of section 1128(c)(3)(B) of the Act.
DISCUSSION
The first statutory requirement for the imposition of mandatory exclusion
pursuant to section 1128(a)(1) of the Act is that the individual or entity in
question be convicted of a criminal offense. In the case at hand, Petitioner
does not contest that she was convicted of a criminal offense. A judgment of
conviction was entered in Petitioner's case and she was sentenced by the State
court. Petitioner was thus convicted within the meaning of section 1128(i)(1)
of the Act. The record reflects that this judgment was based upon the court's
acceptance of Petitioner's guilty plea within the scope of section 1128(i)(3)
of the Act. 2/
Next, it is required by section 1128(a)(1) of the Act that the crime at issue
be related to the delivery of an item or service under Medicare or Medicaid.
Petitioner does not dispute that the services involved related to her skills
as a nurse. She also does not dispute that such services were billed to
Medicaid and the criminal information in her case discloses this fact. In her
defense, Petitioner instead argues that because there was no evidence that she
knew that the patient was a Medicaid recipient or that her employers would be
submitting claims to Medicaid based on her false time sheets, there is no
evidence that her conviction was related to the delivery of health care items
or services under Medicaid. I reject this argument as the Departmental
Appeals Board (DAB) has rejected an identical argument in Robert C. Greenwood,
DAB No. 1423 (1993). In that case the DAB upheld on appeal a mandatory five-
year exclusion of a home health aide who was employed by providers to which
he
submitted false time sheets. His employers then filed claims with Medicaid.
Although the petitioner in Greenwood contended that there was no evidence to
show that he had knowledge that the patient was a Medicaid recipient or that
his employer would file a claim with Medicaid for his services, the DAB found
that exclusion was proper. The DAB found that section 1128(a)(1) of the Act
"does not require any knowledge on the part of a petitioner of the
relationship between the offense and the program; rather the language requires
only that the factual relationship between the offense and the program exist."
Greenwood, at 5.
I find no meaningful distinctions between the facts of Greenwood and
Petitioner's case. Petitioner's argument that she "was never informed by
her
employer" (P. Br. at 4) that the patient was a Medicaid recipient is
irrelevant for purposes of mandatory exclusion under section 1128(a)(1) of the
Act. The only pertinent fact in this case - that Petitioner sought financial
remuneration to which she was not legally entitled and which subsequently
resulted in false claims being submitted to Medicaid - is verified by her
guilty plea and the State court's acceptance of that plea. Under Greenwood,
whether Petitioner knew that the ultimate payer was Medicaid has no bearing
on
the fact that she committed an offense against the Medicaid program.
In her brief, Petitioner also asserts that her exclusion should be back-dated
to October 18, 1995, the date of her conviction for conspiracy to commit
conversion. I find no merit in this claim. It is clear that an exclusion
must take effect 20 days from the date of the I.G.'s notice of exclusion.
Section 1128(c)(1); 42 C.F.R. § 1001.2002. This means that the exclusion
must
take effect 20 days after the February 24, 1997, exclusion letter and not 20
days after Petitioner's conviction. Although Petitioner asserts that her
exclusion should be retroactive, an Administrative Law Judge (ALJ) is without
authority to change the effective date of an exclusion. Stanley Karpo,
D.P.M., DAB CR356 (1995); Chander Kachoria, R.Ph., DAB CR220 (1992), aff'd,
DAB No. 1380 (1993); Laurence Wynn, M.D., DAB CR344 (1994); Samuel W. Chang,
M.D., DAB No. 1198 (1990); Douglas Edmund Foster, L.P.N., DAB CR495 (1997).
Similarly the I.G. has no authority to make exclusions retroactive. All
exclusions are to take place on or after the effective date of the exclusions,
(section 1128(c)(2) of the Act), and neither the ALJ nor the I.G. can move the
effective date of the exclusion back to Petitioner's original October 18, 1995
date of conviction. Foster, at 5. In Kachoria, supra, there was a three year
delay between the date of the I.G.'s initial investigation and the date when
the petitioner received the exclusion notification from the I.G. The
petitioner argued that his rights were violated by the length of time between
the conviction and the exclusion letter. An appellate panel of the DAB ruled,
however, that neither the statute nor the regulations set any specific
deadline for the I.G. to act once an individual is convicted. Kachoria, DAB
No. 1380, at 10 (1993). Consequently I find that the time which has elapsed
between Petitioner's conviction and the receipt of the exclusion letter from
the I.G. does not violate Petitioner's due process rights.
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 at
least five years because she has been convicted of a criminal offense related
to the delivery of a health care item or service under the Medicaid program.
The five-year exclusion is therefore sustained.
Joseph K. Riotto
Administrative Law Judge
* * * Footnotes * * *
1. Unless the context indicates otherwise, I use the term
"Medicaid" to refer to all State health care programs from which Petitioner
was excluded.
2. For Petitioner to be "convicted" of a criminal offense within
the meaning of section 1128(i) of the Act, it is necessary to find that one
of
the four subsections of section 1128(i) has been satisfied. Here, however, I
find that Petitioner's conviction fell within two subsections.
Section 1128(i) of the Act states in part:
(i) CONVICTED DEFINED.-For purposes of subsection (a) and (b), an
individual or entity is considered to have been 'convicted' of a criminal
offense-
(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; . . .
(3) when a plea of guilty or nolo contendere by the
individual or entity has been accepted by a Federal, State, or local court;
.
. .