Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Date: May 11, 1990
Docket No. C-181
In the Case of:
Barbara Johnson, D.D.S.,
Petitioner,
- v. -
The Inspector General.
DECISION
This case is governed by section 1128 of the Social Security Act (Act). Petitioner
filed a timely request for
a hearing before an Administrative Law Judge (ALJ) to contest the October 24,
1989 notice of
determination (Notice) issued by the Inspector General (I.G.) which excluded
Petitioner from participating
in the Medicare and Medicaid programs for five years.
The I.G. filed a motion for summary disposition, and a brief and five exhibits
in support thereof. Petitioner
did not file a response in opposition to the I.G.'s motion for summary disposition.
Based on the entire record before me, I conclude that: (1) summary disposition
is appropriate in this case;
(2) Petitioner is subject to the minimum mandatory exclusion provisions of sections
1128(a)(1) and
1128(c)(3)(B) of the Act; and (3) Petitioner's exclusion for a minimum period
of five years is mandated by
law.
ADMISSIONS
1. Petitioner admitted that she was convicted of a criminal offense within
the meaning of section 1128(i)
of the Act.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute.
Section 1128 of the Social Security Act (Act) is codified at 42 U.S.C. 1320a-7
(West U.S.C.A., 1989
Supp.). Section 1128(a)(1) of the Act provides for the exclusion from Medicare
and Medicaid of those
individuals or entities "convicted" of a criminal offense "related
to" the delivery of an item or service under
the Medicare or Medicaid programs. Section 1128(c)(3)(B) provides for a five
year minimum period of
exclusion for those excluded under section 1128(a)(1).
II. The Federal Regulations.
The governing federal regulations (Regulations) are codified in 42 C.F.R.,
Parts 498, 1001, and 1002
(1988). Part 498 governs the procedural aspects of this exclusion case; Parts
1001 and 1002 govern the
substantive aspects.
Section 1001.123 requires the I.G. to give a party written notice that he or
she is excluded from
participation in Medicare, beginning 15 days from the date on the notice, whenever
the I.G. has conclusive
information that a practitioner or other individual has been convicted of a
crime related to his or her
participation in the delivery of medical care or services under the Medicare,
Medicaid, or the social
services program.
ISSUES
1. Whether the criminal offense for which Petitioner was convicted "related
to the delivery of an item or
service" under the Medicaid program within the meaning of section 1128(a)(1)
of the Act.
2. Whether Petitioner is subject to the minimum mandatory five year exclusion
provisions of sections
1128(a)(1) and 1128(c)(3)(B) of the Act.
3. Whether summary disposition is appropriate in this case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Having considered the entire record, and the submissions of the parties, and
being advised fully herein, I
make the following Findings of Fact and Conclusions of Law:
1. At all times relevant to this case, Petitioner was a practicing dentist.
2. In April 1988, Petitioner was charged with 23 counts of Medicaid Provider
Fraud, in violation of
District of Columbia (D.C.) Code, Section 3-702(b)(3). I.G. Ex. 5.
3. It is a violation of D.C. Code Section 3-702(b)(3) to, with intent to defraud,
by means of false claim,
obtain and attempt to obtain, payment from the District of Columbia as a District
of Columbia Medicaid
provider, for an item or service that a provider knows and has reason to know
was not provided as
claimed." I.G. Ex. 5.
4. In December 1988, Petitioner was found guilty, by jury, of 12 counts of
Medicaid Provider Fraud. I.G.
Ex. 4.
5. Petitioner was sentenced to 18 months probation and ordered to pay: (1)
$100.00 fine; and (2)
$1,140.00 restitution. I.G. Ex. 4.
5. Petitioner was "convicted" of a criminal offense within the meaning
of section 1128(i) of the Act.
Findings 2, 3.
6. Petitioner's conviction relates to Petitioner's commission of a fraud against
the Medicaid program.
Findings 2 - 4.
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. Findings
2 - 5.
8. As required by section 1128 of the Act, the I.G. properly excluded Petitioner
from participation in
Medicare, and properly directed her exclusion from Medicaid, for a period of
five years. Social Security
Act, section 1128(a)(1); Findings 4, 5.
9. The material and relevant facts in this case are not contested.
10. The I.G. is entitled to summary disposition in this proceeding. Finding 7.
DISCUSSION
I. Petitioner was "Convicted" of a Criminal Offense as a Matter of Federal Law.
Petitioner was convicted of 12 counts of Medicaid Provider Fraud. Section 1128(i)
of the Act provides that
an individual has been "convicted" of a criminal offense when:
(1) 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) there has been a finding of guilt against the individual or entity by a
Federal, State, or
local court;
(3) a plea of guilty or nolo contendere by the individual or entity has been
accepted by a
Federal, State, or local court; or
(4) 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.
I find and conclude that Petitioner was "convicted" within the meaning
of section 1128(a)(1) and (i)(2) of
the Act.
II. Petitioner's Conviction "Related to the Delivery of an Item or Service"
Within The Meaning of
Section 1128 of The Act.
Although Petitioner admits, and I find and conclude, that Petitioner was convicted
of a criminal offense
within the meaning of section 1128(i) of the Act, Petitioner argues that she
should not be excluded because
her conviction does not relate to her delivery of an item or service under the
Medicaid program.
Section 1128(a)(1) of the Act requires the I.G. to exclude persons who have
been convicted of a criminal
offense related to the delivery of an item or service under the Medicaid program.
The key determining
factor is whether the criminal offense for which Petitioner was convicted is
related to the delivery of an
item or service under the Medicaid program, not whether Petitioner personally
committed the offense for
which she was convicted.
Petitioner's conviction for falsely obtaining and attempting to obtain reimbursement
from the Medicaid
program for services which she knew and had reason to know were not provided
as claimed, is specifically
the type of criminal offense which the mandatory provisions of the Act seek
to redress.
I find and conclude that 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.
III. A Minimum Mandatory Five Year Exclusion Was Required In This Case.
Section 1128(a)(1) of the Act clearly requires the I.G. to exclude individuals
and entities from the
Medicare program, and direct their exclusion from the Medicaid program, for
a minimum period of five
years, when such individuals and entities have been "convicted" of
a criminal offense "related to the
delivery of an item or service" under the Medicare or Medicaid programs
within the meaning of section
1128(a)(1) of the Act. Congressional intent on this matter is clear:
A minimum five-year exclusion is appropriate, given the seriousness of the
offenses at
issue. . . . Moreover, a mandatory five-year exclusion should provide a clear
and strong deterrent against
the commission of criminal acts.
S. Rep. No. 109, 100th Cong., 1st Sess. 2, reprinted in 1987 U.S. Code Cong. & Admin. News 682, 686.
Since Petitioner was "convicted" of a criminal offense and it was
"related to the delivery of an item or
service" under the Medicaid program within the meaning of section 1128(a)(1)
and (i) of the Act, the I.G.
was required to exclude Petitioner for a minimum of five years.
IV. Summary Disposition is Appropriate in this Case.
I conclude, as a matter of law, that Petitioner was properly excluded and that
the length of her exclusion is
mandated by law. There are no genuine issues of material fact which would require
the submission of
additional evidence, and there is no need for an evidentiary hearing in this
case. The I.G. is entitled to
summary disposition as a matter of law.
CONCLUSION
Based on the law and undisputed material facts in the record of this case,
I conclude the I.G. properly
excluded Petitioner from the Medicare program, and directed her exclusion from
the Medicaid program,
for the minimum mandatory period of five years.
IT IS SO ORDERED.
________________________________
Charles E. Stratton
Administrative Law Judge