Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Arlene Elizabeth Hunter, Petitioner,
- v. -
The Inspector General.
Date: November 19, 1997
Docket No. C-97-324
Decision No. CR505
DECISION
By letter dated March 26, 1997, Arlene Elizabeth Hunter, 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 her 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. 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 an item or service under the Medicare 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 parties' written submissions in lieu of an in-person hearing.
Both parties submitted briefs in this matter. The I.G. submitted four
proposed exhibits (I.G. Exs. 1-4). Petitioner did not object to these
exhibits and I receive into evidence I.G. Exs. 1-4. Petitioner did not submit
any exhibits.
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 an item or service under Medicare or Medicaid to be excluded from
participation in such programs for a period of at least five years.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At all times relevant herein, Petitioner was employed by Senior Counseling
Services as a registered nurse providing psychological counseling and "low
vision" counseling to Medicare patients in adult congregate living facilities.
I.G. Ex. 2 at 13-14.
2. Senior Counseling Services was owned by David Redfering. I.G. Ex. 2 at
13.
3. The claims submitted to the Medicare program for Petitioner's services
were submitted by David Redfering under the name "Senior Counseling Services"
and later under the name of "David L. Redfering and Associates." I.G.
Ex. 2
at 13.
4. An Information charging Petitioner with one count of conspiracy to defraud
the Medicare program was filed by the United States Attorney in the United
States District Court, Middle District of Florida, Tampa Division. I.G. Ex.
1.
5. On July 10, 1996, Petitioner pled guilty in United States District Court,
Middle District of Florida, Tampa Division, to Count One of the Information,
conspiracy to defraud the United States in violation of 18 U.S.C. § 371.
I.G.
Exs. 1-3.
6. In her plea agreement, Petitioner admitted that she assisted David
Redfering in preparing false documentation in support of Medicare claims by
Senior Counseling Services and David L. Redfering and Associates for
psychological evaluations and group and individual therapy sessions, although
neither Petitioner nor David Redfering performed these services. I.G. Ex. 2
at 14-15.
7. In her plea agreement, Petitioner admitted that she also assisted David
Redfering in preparing false documentation in support of Medicare claims by
Senior Counseling Services and David L. Redfering and Associates for
psychological evaluations conducted while no qualified clinical psychologist
was present, in violation of Medicare payment rules. I.G. Ex. 2 at 13-14.
8. In her plea agreement, Petitioner acknowledged that she assisted Redfering
in the preparation of false documentation to support the Medicare claims,
including Petitioner's forging patient signatures on forms consenting to
psychological assessments, backdating file entries, and describing low vision
services in terms of psychological counseling in patients' progress notes.
I.G. Ex. 2 at 14-15.
9. As a result of her July 10, 1996 conviction, Petitioner was sentenced to
five years probation, was ordered to pay restitution of $943 (including
$871.29 to Medicare), and was fined $2000. I.G. Ex. 3.
10. 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 an item or service under the
Medicare or Medicaid programs.
11. Petitioner's criminal conviction for conspiracy to defraud the United
States constitutes a conviction within the meaning of section 1128(i)(3) of
the Act. Finding 5.
12. Petitioner's criminal conviction for conspiracy to defraud the United
States is related to the delivery of an item or service under the Medicare
program within the meaning of section 1128(a)(1) of the Act. Findings 1-9.
13. 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.
14. 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. Findings 1-13.
PETITIONER'S ARGUMENTS
Petitioner now appears to contend that she is not subject to mandatory
exclusion because her offense does not relate to the delivery of an item or
service under the Medicare program, although during the initial prehearing
conference she did not dispute the relationship. Specifically, she maintains
that she did not herself file false claims with Medicare. Petitioner relates
that she was an employee and that her employer was the entity that filed the
fraudulent claims. 2/
Petitioner challenges the propriety of her criminal conviction, alleging that
she was not culpable and had no intent to defraud Medicare. In this regard,
she asserts that she did not know that her employer was submitting false
claims to Medicare, and that when she discovered his illegal actions she
changed employment. She also maintains that it was accepted practice in
medical facilities to backdate Medicare claims and to have medical personnel
provide claimed services in the absence of an appropriately licensed provider.
Petitioner maintains that the statute of limitations has passed for bringing
an exclusion action against her. She notes that the dates of service for the
claims in question were in 1990 and 1991. She asserts that the I.G. can only
bring an exclusion action within six years from the time a claim or request
for payment is presented, and cites 42 U.S.C. § 1320a-7a (Act, section
1128A)
as authority for her position.
Petitioner argues in her request for hearing that she did not know that her
guilty plea would trigger an exclusion from the Medicare and Medicaid
programs. She asserts that neither the prosecuting attorney nor the
Department of Health and Human Services representatives with whom she
cooperated in the investigation of her former employer informed her that she
would be excluded as a result of her guilty plea.
Petitioner contends that her exclusion constitutes a constitutionally
impermissible additional punishment. She claims that the effect of such
exclusion is to deprive her of her ability to make a living as a nurse.
Finally, Petitioner argues that if her exclusion is upheld, it should begin
on
July 10, 1996, the date of her criminal conviction, and not 20 days from March
26, 1997, as indicated in the I.G.'s March 26, 1997 notice letter.
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 must have been convicted of a criminal offense under federal or State
law. In the case at hand, Petitioner does not dispute that she was convicted
of a criminal offense. The record reflects that Petitioner pled guilty to one
count of conspiracy to defraud the United States, and her plea was accepted
by
the United States District Court, Middle District of Florida, Tampa Division,
on July 10, 1996. On these facts, section 1128(i)(3) of the Act is satisfied.
Next, it is required under section 1128(a)(1) of the Act that the criminal
offense at issue be related to the delivery of an item or service under
Medicare or Medicaid. Petitioner does not dispute that the services allegedly
involved in the fraudulent claims relate to services within the scope of the
Act. She also does not dispute that such services were billed to Medicare,
and the criminal Information to which she pled guilty reflects this fact. In
her defense, Petitioner cites the fact that she was precluded from filing
Medicare claims and that her employer was the entity that filed the claims at
issue. On these facts, she asserts that the crime for which she was convicted
does not relate to the Medicare program, as she did not herself file the false
claims.
I reject Petitioner's argument. The record reflects that Petitioner assisted
her employer in the submission of false Medicare claims. These claims were
falsified to reflect compliance with Medicare rules when such compliance had,
in fact, not occurred, as the services were not performed when a qualified
clinical psychologist was present. She also assisted her employer in the
submission of fraudulent Medicare claims for psychological services she never
rendered. In this regard, Petitioner worded claims for "low vision"
visits to
read as though she had provided the patients with psychological evaluations
and therapy. She also forged the signatures of patients on consent forms
indicating that they had agreed to psychological assessments and counseling.
These consent forms and records were then presented to the Medicare program
as
supporting documentation for the Medicare claims, in an effort to obtain
reimbursement for psychological services never provided to these patients.
Petitioner's assistance to her employer enabled him to submit false claims to
the Medicare program and resulted in Petitioner's conviction for conspiracy
to
defraud the United States.
It is well established that financial misconduct directed at Medicare or
Medicaid, in connection with the delivery of items or services under the
programs, constitutes a program-related offense invoking mandatory exclusion.
Alan J. Chernick, D.D.S., DAB CR434 (1996). Departmental Appeals Board case
law has long held that filing false Medicare or Medicaid claims constitutes
program misconduct which warrants exclusion. Paul Karsch, DAB CR454 (1997);
Jack W. Greene, DAB CR19 (1989), aff'd, DAB No. 1078 (1989), aff'd, Greene v.
Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990). I find that the offense
for which Petitioner was convicted constitutes criminal fraud related to the
delivery of an item or service under the Medicare program. Petitioner's
fraudulent conduct was instrumental in enabling her employer to submit false
Medicare claims.
I find no merit in Petitioner's argument that she should not be excluded
because her employer filed the claims she was precluded from filing. The
Departmental Appeals Board rejected a similar claim in Robert C. Greenwood,
DAB No. 1423 (1993). In that case, the Departmental Appeals Board upheld on
appeal a mandatory five year exclusion of a home health aide who was employed
by providers to whom he submitted false time sheets. His employers then filed
claims with Medicaid. Although the petitioner 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 Departmental Appeals Board found that his exclusion was
authorized. Petitioner's case is even more compelling, as she was convicted
of conspiring with her employer to defraud the Medicare program.
Petitioner maintains that the statute of limitations has passed for bringing
an exclusion action against her, and cites 42 U.S.C. § 1320a-7a (Act, section
1128A) as authority for her position. I find that Petitioner's argument is
misplaced. The provision upon which Petitioner relies, otherwise known as the
Civil Monetary Penalties Law (CMPL), provides the I.G. with the authority to
impose monetary penalties upon providers who have either directly submitted,
or caused to be submitted, claims which are improper or false. Act, section
1128A. While it is true that an individual or entity may be excluded under
the CMPL as a result of the submission of false or fraudulent claims for
reimbursement, pursuant to section 1128A of the Act, the exclusion at issue
in
this case is predicated upon Petitioner's criminal conviction; therefore,
section 1128A of the Act, and the referenced statute of limitations, do not
apply. As stated in Petitioner's notice of exclusion, Petitioner's exclusion
is the direct result of her conviction for conspiracy to defraud the United
States, specifically, the Medicare program. She is, therefore, subject to
mandatory exclusion pursuant to section 1128(a)(1) of the Act. No statute of
limitations is applicable to this remedial sanction. Act, section 1128(a).
Petitioner argues that she should not be subject to exclusion under section
1128(a)(1) of the Act because she was not informed in her criminal proceeding
that she would be excluded from the Medicare and Medicaid programs as a result
of her conviction. I reject this argument. It is well settled that arguments
regarding the process leading to a petitioner's criminal conviction are
irrelevant for purposes of an exclusion proceeding. Charles W. Wheeler and
Joan K. Todd, DAB No. 1123 (1990); Douglas Schram, R.Ph., DAB No. 1372 (1992);
Karsch, DAB CR454. In Schram, the petitioner argued that because he was not
given adequate notice concerning the consequences of his plea, his right to
due process had been violated. The Departmental Appeals Board rejected this
argument, relying on the proposition in U.S. v. Suter, 755 F.2d 523 (7th Cir.
1985) that a defendant does not have to be advised of all of the possible
consequences of his plea. In essence, Petitioner's argument amounts to a
collateral attack on her conviction, which the Departmental Appeals Board has
previously held to be an ineffectual argument in the context of an exclusion
appeal, as the I.G. and the administrative law judge are not permitted to look
beyond the fact of conviction. Paul R. Scollo, D.P.M., DAB No. 1498 (1994);
Peter J. Edmonson, DAB No. 1330 (1992); Ernest Valle, DAB CR309 (1994).
Petitioner challenges her criminal conviction, alleging that she had no intent
to defraud Medicare and that she is not blameworthy. In this regard, she
maintains that she did not know that her employer was submitting false claims.
Also, she claims that it was accepted practice in medical facilities to
backdate claims and for other medical personnel to provide services in the
absence of an appropriately licensed provider. I find that I have no
authority to consider such claims. Once it is shown that a criminal
conviction within the scope of the Act 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. Edmonson, DAB No. 1330. The intent
of the individual committing the offense is not relevant. 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 argues that her exclusion constitutes an impermissible additional
punishment beyond the punishment imposed upon her in the criminal proceeding.
She asserts also that her exclusion has effectively precluded her from making
a living as a nurse. I reject this argument. Such argument is a claim that
exclusion following a criminal conviction violates the constitutional
protection against double jeopardy. An administrative law judge has no
authority, however, to rule on the constitutionality of the I.G.'s actions.
See Roberta Miller, DAB CR367 (1995). Moreover, the Departmental Appeals
Board and federal courts have 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 by a provider who has proven herself to be untrustworthy, and not
to punish Petitioner, this exclusion is remedial in nature and not violative
of double jeopardy. Karsch, DAB CR454. Consequently, although Petitioner
alleges that her exclusion effectively precludes her employment as a nurse,
such effect is not impermissible punishment.
Finally, I note that an administrative law judge has no authority to alter
the
effective date of an exclusion imposed against an individual by the I.G.
Shanti Jain, M.D., DAB No. 1398 (1993); Samuel W. Chang, M.D., DAB No. 1198
(1990).
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 an item or service under the Medicare program.
Petitioner's five-year exclusion is, therefore, sustained.
Joseph K. Riotto
Administrative Law Judge
* * * Footnotes * * *
In this decision, I use the term "Medicaid" to refer to the State
health care programs enumerated here.
I note that during the initial prehearing conference in this case,
Petitioner did not dispute that she had been convicted of a criminal offense
or that her offense was related to the Medicare program. Petitioner also
requested briefing on only one issue, that being the I.G.'s authority to
exclude her given that the offenses for which she was convicted took place
more than six
years prior to her exclusion. I also informed Petitioner during the
conference that she could brief the issue of whether, if her exclusion is
upheld, her exclusion could begin on July 10, 1996, the date of her
conviction, instead of the date indicated in the I.G.'s March 26, 1997 notice
letter (20 days from March 26, 1997). However, as Petitioner is appearing
before me pro se, I am not limiting my decision to these two issues or holding
Petitioner to any admissions she made during the initial prehearing
conference. Instead, I am addressing all the arguments I now construe
Petitioner to be making in her hearing request and in her briefs subsequent
to
the initial prehearing conference.