Date: February 2, 1999

In the Case of:
Albert Britton, Jr., M.D.,

Petitioner,

- v. -

The Inspector General

Docket No. C-98-502
Decision No. CR571

By letter dated June 30, 1998, Albert Britton, Jr., M.D., the Petitioner herein, was notified by the Inspector General (I.G.), United States Department of Health and Human Services, that he had been excluded, 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 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. 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.

The I.G. submitted a brief in this matter. The I.G. also submitted proposed exhibits numbered I.G. Exhibits

(I.G. Exs.) 1-6. Petitioner did not object to these proposed exhibits. I admit into evidence I.G. Exs. 1-6. Petitioner submitted a statement in support of his appeal and two exhibits numbered Petitioner Exhibits (P. Exs.) 1 and 2. The I.G. did not object to these proposed exhibits. I admit into evidence Petitioner Exs. 1 and 2.

I affirm the I.G.'s determination to exclude Petitioner from participation in the Medicare and Medicaid programs for a period of five years.

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 contends that he is not subject to exclusion under section 1128(a)(1) of the Act. He implies that his criminal conviction does not relate to the delivery of a health care item or service as the I.G.'s letter of exclusion refers to a conviction involving Medicare fraud and his offense related to Medicaid. He also asserts that the 1996 Health Insurance Portability and Accountability Act (HIPAA) does not apply to him because his crime was committed in 1993 before its enactment.

1. During the period relevant to this case, Petitioner was a physician in the State of Mississippi. I.G. Ex. 4.

2. On August 21, 1997, a criminal complaint was filed in the United States District Court for the Southern District of Mississippi, Jackson Division, charging Petitioner with one count of False Medicaid Claims in violation of 42 U.S.C. section 1320a-7b(a). I.G. Ex. 1.

3. In the information, it was alleged that on or about May 23, 1993 Petitioner knowingly caused to be made and presented a false claim to the Mississippi Medicaid Program for patient services that he knew he did not provide. I.G. Ex. 1.

4. On December 12, 1997, Petitioner entered a plea of guilty to one count of False Medicaid Claims, which plea was accepted by the court. I.G. Exs. 2 and 3.

5. As a result of his plea, Petitioner was placed under home confinement for four months; was placed on probation for three years; was ordered to pay $2533.19 in restitution; and was fined $5000 and a special assessment of $50. I.G. Exs. 2 and 3.

6. On June 30, 1998, the I.G. notified Petitioner that he was being excluded from participation in the Medicare and Medicaid programs for a period of five years pursuant to section 1128(a)(1) of the Act. I.G. Ex. 5.

7. Petitioner's entry of a guilty plea and the acceptance of such plea by the United States District Court constitutes a conviction within the meaning of section 1128(i)(3) of the Act.

8. Petitioner's conviction for 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.

9. Once an individual has been convicted of a program-related criminal offense under section 1128(a)(1) of the Act, exclusion for at least five years is mandatory under section 1128(c)(3)(B) of the Act.

10. 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.

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. I find that this requirement is met in Petitioner's case. The term "convicted" is defined in section 1128(i) of the Act. This section provides that an individual or entity will be 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;

(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.

This section establishes four alternative definitions of the term "convicted." An individual or entity need satisfy only one of the four definitions under section 1128(i) to establish that the individual or entity has been convicted of a criminal offense within the meaning of the Act.

I find that Petitioner was convicted within the scope of section 1128(i)(3) of the Act. Petitioner's guilty plea and the court's acceptance of it constitute a conviction within the scope of section 1128(i)(3) of the Act. A plea is "accepted" within the meaning of that section whenever a party offers the plea and the court consents to receive the plea in disposing of the criminal matter. Maximo Levin, M.D., DAB CR343 (1994); Lila M. Nevrekar, DAB CR319(1994).

Section 1128(a)(1) of the Act also requires that the crime at issue be related to the delivery of a health care item or service under Medicare and Medicaid. The record establishes the Petitioner by being found guilty of the offense charged in the criminal complaint was found to have filed, or caused to be filed, fraudulent claims against Medicaid. The filing of fraudulent Medicare and Medicaid claims consistently has been held to constitute clear program-related misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996) (I.G.'s five-year mandatory exclusion of dentist who was convicted in state court of filing false claims upheld); see also Barbra Johnson, D.D.S., DAB CR78 (1990) (I.G.'s five-year mandatory exclusion of dentist convicted of filing false claims upheld).

To determine if an offense is program-related, the Administrative Law Judge (ALJ) must analyze the facts and circumstances underlying the conviction to determine whether a nexus or common sense connection links the offense for which a petitioner has been convicted and the delivery of an item or service under a covered program. Berton Siegel, D.O., DAB No. 1467 (1994). In Petitioner's case, a necessary nexus links the facts underlying his crime with the delivery of items or services under Medicaid because the falsified claims leading to Petitioner's conviction resulted in his receipt of fraudulent Medicaid reimbursement. In Rosaly Saba Khalil, M.D., DAB CR353 (1995), the ALJ found that a criminal offense stemming from the fraudulent receipt of reimbursement checks from Medicaid provided a sufficient nexus between the offense and the delivery of items or services under Medicaid. Additionally the ALJ in Khalil held that a nexus may exist "despite the fact that Petitioner may not have provided items or services to Medicaid recipients personally or made reimbursement claims for those items or services." Id. In the present case, the nexus between Petitioner's offenses and the delivery of items or services under Medicaid is firmly established by his conviction for the charge of "False Medicaid Claims."

In his defense, Petitioner implies that his crime is not related to the delivery of an item or service because the charge of which he was convicted did not involve Medicare, as cited in the I.G.'s exclusion letter. However it is not necessary that Petitioner's offense involve Medicare, for an offense related to the delivery of an item or service under a State health care program, such as the Medicaid program in Mississippi, also triggers a mandatory exclusion. Buford Gibson, Jr., M.D., DAB CR499 (1997). The evidence clearly shows that Petitioner's offense involved filing false claims under the Mississippi Medicaid program.

Petitioner also asserts that he is not subject to exclusion as his criminal misconduct occurred in 1993, which predated enactment of HIPAA in 1996. I find that Petitioner's contention is misplaced. Exclusion for a minimum mandatory period of five years has been required for program-related offenses since 1987 when Congress enacted the Medicare and Medicaid Patient and Program Protection Act. While HIPAA, which was effective as of January 1, 1997, enacted some new bases for mandatory exclusions, no modifications were made with respect to the existing section 1128(a)(1) authority. See HIPAA section 211 enacting new sections 1128(a)(3) and 1128(a)(4). Consequently, Petitioner is subject to the mandatory five-year exclusion, even though his criminal offense was committed in 1993.

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. Thus, the five-year exclusion is sustained.

Joseph K. Riotto
Administrative Law Judge

1. In this decision, I use the term "Medicaid" to refer to all State health care programs from which Petitioner was excluded.