Samuel Arnold, D.D.S., DAB CR506 (1997)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: Samuel Arnold, D.D.S., Petitioner,
- v. -
The Inspector General.

Date: November 19, 1997

Docket No. C-97-231
Decision No. CR506

DECISION

By letter dated February 21, 1997, the Inspector General (I.G.), United
States Department of Health and Human Services, notified Samuel Arnold,
D.D.S. (Petitioner), that he would be excluded from participation in the
Medicare, Medicaid, Maternal and Child Health Services Block Grant and
Block Grants to States for Social Services programs for a period of five
years. 1/ The I.G. explained that an exclusion of at least five years
is 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 Medicaid
program.

Petitioner filed a request for review of the I.G.'s action. I convened a
prehearing conference on April 10, 1997. During the conference, counsel
for the I.G. indicated that she did not think that an in-person hearing
was necessary in this case, and that she wished to move for disposition
based on a written record. I established a briefing schedule which I set
forth in my April 21, 1997 Order and Schedule for Filing Briefs and
Documentary Evidence (April 21, 1997 Order).

The I.G. moved for summary disposition, accompanied by an initial brief
and three proposed exhibits (I.G. Ex. 1 - 3). Petitioner filed a
response brief. The I.G. filed a reply


brief. Petitioner did not object to the three exhibits submitted by the
I.G. and I admit I.G. Ex. 1 - 3 into evidence. 2/

Because 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. 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 ARGUMENTS

Petitioner contends that he was not guilty of the criminal conduct for
which he has been convicted but instead pled guilty on the advice of his
attorney. Petitioner contends also that the I.G. acted improperly in
having his exclusion begin four years after the date of his criminal
conviction.
Petitioner alleges that adverse actions were taken against him because he
is Jewish and because he has sought to assist the poor and disadvantaged.
Finally, Petitioner contends that such exclusion is excessive because he
is the only dentist available in the area to provide dental services to
poor and disadvantaged patients.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. During the period relevant to this case, Petitioner was a dentist
licensed to practice in the State of Ohio. I.G. Initial Brief at p. 2;
Petitioner Response Brief at p. 1.

2. On May 21, 1992, a four-count indictment was filed against Petitioner
in the Court of Common Pleas of Franklin County, Ohio, Criminal Division.
I.G. Ex. 1.

3. Count One of that indictment charged that during the period from
September 1986 to February 1991, Petitioner, in his capacity as President
of Midwest Mobile Dental Care, Inc., knowingly made false or misleading
statements on direct entry submission tapes in order to obtain improper
reimbursement from the Ohio Medicaid program. Count One charged also
that the value of the funds reimbursed due to Petitioner's false or
misleading statements was in the amount of $5,000 or more. I.G. Ex. 1.

4. Count One of the indictment alleged that Petitioner's offense
constitutes Medicaid Fraud in violation of Ohio Revised Code Section
2913.40(B). I.G. Ex. 1.

5. On February 11, 1993, Petitioner pled guilty to Count One of the
indictment. Based on its acceptance of Petitioner's plea, the court
found Petitioner guilty of that offense. The court sentenced Petitioner
to a 24-month suspended period of incarceration and to a 36-month period
of probation. In addition, the court directed Petitioner to pay
restitution and court costs. I.G. Ex. 2.

6. 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.

7. Petitioner was convicted of a criminal offense 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. Petitioner may not utilize this administrative proceeding to
collaterally attack his criminal conviction by seeking to show that he
did not do the act charged.

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. 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.

12. An administrative law judge is without authority to change the
effective date of an exclusion imposed and directed by the I.G.

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.

DISCUSSION

Petitioner does not dispute that he was convicted of a criminal offense.
Nor does he dispute that the offense underlying his conviction is
program-related. Moreover, the undisputed evidence adduced by the I.G.
establishes that Petitioner was convicted of a criminal offense related
to the delivery of an item or service under Medicaid, within the meaning
of section 1128(a)(1) of the Act. For this reason, Petitioner is
required to be excluded for at least five years as a matter of law.

The first statutory requirement for mandatory exclusion pursuant to
section 1128(a)(1) of the Act is that the individual to be excluded must
have been convicted of a criminal offense. Section 1128(i)(3) of the Act
expressly provides that when an individual enters a plea of guilty to a
criminal charge and the court accepts such plea, the individual will be
regarded as having been "convicted" within the meaning of the mandatory
exclusion provisions of the Act.

In the case at hand, undisputed evidence establishes that the State of
Ohio charged Petitioner with the offense of Medicaid Fraud. Petitioner
pled guilty to this offense. Based on this plea, the court found
Petitioner guilty of the offense. The evidence establishes that
Petitioner pled guilty in order to dispose of the criminal charge against
him, and the court disposed of the case based on its receipt of
Petitioner's guilty plea. That transaction amounts to "acceptance" of a
guilty plea within the meaning of section 1128(i)(3) of the Act, and
Petitioner was therefore convicted of a criminal offense within the
meaning of that provision.

The statute further requires that the criminal offense in question must
have been "program-related," i.e., related to the delivery of items or
services under Medicaid or Medicare. It is well-established that filing
false Medicare or Medicaid claims relates to the delivery of items or
services under such programs and clearly constitutes program-related
misconduct, sufficient to mandate exclusion. Jack W. Greene, DAB CR19
(1989), aff'd, DAB 1078 (1989), aff'd sub nom. Greene v. Sullivan, 731 F.
Supp. 835, 838 (E.D. Tenn. 1990). In the case at hand, Petitioner was
convicted of defrauding Medicaid by intentionally making false statements
in order to obtain reimbursement to which Petitioner was not entitled.
This offense is tantamount to filing false Medicaid claims, and therefore
it is program-related.

Furthermore, it has been held that a criminal offense meets the statutory
test for program-related misconduct where either the Medicare or Medicaid
program is the victim of the crime. Domingos R. Freitas, DAB CR272, at
30 (1993), citing Napoleon S. Maminta, M.D., DAB 1135 (1990). The record
shows that Petitioner was convicted of making false statements which led
to his receipt of fraudulent Medicaid reimbursement. Petitioner's
offense victimized the Medicaid program because it caused Medicaid to
make payments to Petitioner to which he was not entitled. This had an
adverse financial impact on the Medicaid program. Under the test
enunciated in Maminta and Freitas, I find that Petitioner's offense is
program-related.

Petitioner seeks to challenge his exclusion by asserting that he was not
in fact guilty of the offense for which he has been convicted.
Petitioner claims that he was singled out because he is Jewish and
because he serves a disadvantaged population. However, under section
1128(a)(1) of the Act, proof that an appropriate criminal conviction has
occurred ends the inquiry as to whether mandatory exclusion is called
for. These administrative proceedings cannot be used to attack the
substantive decision arrived at by the court. The law does not permit me
to look behind the fact of conviction. When an individual has been
convicted of a crime encompassed by section 1128(a)(1), exclusion is
mandatory; such individual's subsequent claim of innocence will not be
considered in this forum. Russell E. Baisley and Patricia Mary Baisley,
DAB CR128 (1991); 42 C.F.R. § 1001.2007(d).

Petitioner asserts also that it is unfair that his exclusion did not
commence at the date of his criminal conviction and that such delay
"added to (his) sentence." I find no merit in this claim. The I.G. has
the discretion to determine when to impose an exclusion. Lawrence Wynn,
DAB CR344 (1994). Neither the statute nor the regulations set any
specific deadline for the I.G. to act. As a matter of law, an exclusion
must take effect 20 days from the date of the I.G.'s notice of exclusion.
42 C.F.R. § 1001.2002. An administrative law judge is without authority
to change the effective date of any exclusion imposed and directed by the
I.G. Also, an administrative law judge lacks the authority to compel the
I.G. to send out notices of exclusions by any date certain. The
regulations are clear that the effective date of an exclusion is not a
reviewable issue in this administrative proceeding. 42 C.F.R. §
1001.2007.

Petitioner maintains that his exclusion should be shortened because his
disadvantaged patients do not have access to another dentist who can
treat them. I am without the authority to consider this argument because
I do not have authority to reduce the five-year minimum exclusion
mandated by section 1128(c)(3)(B) of the Act.

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 he has been convicted of a criminal
offense related to the delivery of an item or service under the Medicaid
program. The five-year exclusion is therefore sustained.


Joseph K. Riotto
Administrative Law Judge


* * * Footnotes * * *

Unless the context indicates otherwise, I use the term
"Medicaid" to refer to all State health care programs from which
Petitioner was excluded.
In his August 4, 1997 response brief, Petitioner indicated that
due to a bad connection, he had had difficulty hearing what was said
during the April 10, 1997 telephone conference. Based on this,
Petitioner stated that he does "not understand why any decision could
have been made regarding that conversation." My April 21, 1997 Order
memorializes the April 10, 1997 telephone conference, and it shows that
no outcome determinative rulings or decisions were made by me during the
conference. I merely established a briefing schedule to allow the
parties the opportunity to present their arguments in writing. In
addition, I reserved judgment at that time on the issue of whether an in-
person hearing would be necessary in this case. Accordingly, given that
the April 10, 1997 conference was concerned merely with the procedural
business of establishing a briefing schedule; that the record contains an
Order memorializing what occurred at the April 10, 1997 conference; and
that Petitioner at no time objected to the briefing schedule; I do not
find that Petitioner has shown that he has been prejudiced by any
difficulty he may have had in hearing what was said during the prehearing
conference.