Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
DATE: June 21, 1990
Docket No. C-170
In the Case of:
Michael Travers, M.D.,
Petitioner,
- v. -
The Inspector General.
DECISION
By letter dated June 20, 1989, the Inspector General (the I.G.) notified Petitioner
that he was being
excluded from participation in the Medicare and any State health care program
for five years. Petitioner
was advised that his exclusion resulted from his conviction of a criminal offense
related to the delivery of
an item or service under the Medicaid program. Petitioner was further advised
that his exclusion was
mandated by section 1128(a)(1) of the Social Security Act.
Petitioner timely requested a hearing, and the case was assigned to me for
hearing and decision. The I.G.
moved for summary disposition. Petitioner opposed the motion, and moved to dismiss
the exclusion
(which I have treated as a cross motion for summary disposition), or in the
alternative, to be given an
evidentiary hearing. I conducted oral argument of the motions by telephone on
April 19, 1990.
I have considered the applicable law, the parties' arguments, and the undisputed
material facts. I conclude
that the exclusion imposed and directed against Petitioner by the I.G. was mandated
by section 1128(a)(1)
of the Social Security Act. Therefore, I enter summary disposition in favor
of the I.G. and affirm the
exclusion. Petitioner's motions are denied.
ISSUES
The issues in this case are whether:
1. the delegation of authority by the Secretary of Health and Human Services
(the Secretary) to
the I.G. to determine and impose or direct exclusions pursuant to section 1128
is unlawful;
2. the Secretary is required to adopt regulations implementing the 1987 revisions
to section
1128(a) before the I.G. may make exclusion determinations pursuant to the law;
3. there are disputed issues of material fact which would preclude summary
disposition in this
case;
4. Petitioner was convicted of a criminal offense within the meaning of section
1128(i) of the
Social Security Act; and
5. within the meaning of section 1128(a)(1) of the Social Security Act, Petitioner
was convicted
of a criminal offense related to the delivery of an item or service under Medicaid.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On December 16, 1988, Petitioner was charged in a criminal information in
Utah state court with the
offense of filing false Medicaid claims. I.G. Ex. 1; 8A at 3.
2. Petitioner was charged with using the wrong billing code number in claiming
reimbursement for
Medicaid claims, resulting in misrepresentation of the type, quality or quantity
of the services rendered by
Petitioner. I.G. Ex. 1.
3. Petitioner entered a plea agreement with the prosecutor in which he agreed
to enter a plea of "no
contest" to the criminal charge against him. I.G. Ex. 2.
4. Petitioner agreed to pay to the Utah Bureau of Medicaid Fraud, within 60
days, the sum of $8,464. This
consisted of restitution in the amount of $6,464, costs of investigation in
the amount of $1,000, and a civil
penalty in the amount of $1,000. I.G. Ex. 2.
5. The plea agreement provided that the Utah court might take Petitioner's
no contest plea under
advisement, as part of a first offender program, and hold the matter in abeyance
for a period of 60 days.
I.G. Ex. 2.
6. The plea agreement further provided that if Petitioner failed to make the
agreed payment to the Utah
Bureau of Medicaid Fraud, the court should accept his no contest plea and proceed
to schedule the matter
for imposition of sentence. I.G. Ex. 2.
7. On December 16, 1988, the Utah court approved the plea agreement as a disposition
of Petitioner's case,
and accepted Petitioner's no contest plea. I.G. Ex. 3; P. Ex. 8-A at 6-7, 10.
8. On January 9, 1989, Petitioner filed a petition with the Utah court, asserting
that he had complied with
the terms of his plea, and requesting that he be permitted to withdraw his plea
and that the criminal charges
against him be dismissed with prejudice. I.G. Ex. 5.
9. On January 9, 1989, the prosecuting attorney filed with the Utah court a
notice of compliance stating
that Petitioner had complied with the terms of his plea. I.G. Ex. 6.
10. On January 9, 1989, the Utah court entered an Order permitting Petitioner
to withdraw his plea and
dismissing with prejudice the criminal charges against Petitioner. I.G. Ex.
7.
11. Petitioner was convicted of a criminal offense within the meaning of section
1128(i) of the Social
Security Act. Findings 1 - 9; Social Security Act, section 1128(i).
12. 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 Social Security Act.
Findings 1 - 11; Social
Security Act, section 1128(a)(1).
13. Pursuant to section 1128(a)(1) of the Social Security Act, the Secretary
is required to exclude
Petitioner from participating in Medicare and Medicaid. Social Security Act,
section 1128(a)(1).
14. The minimum mandatory period of exclusion for exclusions pursuant to section
1128(a)(1) of the
Social Security Act is five years. Social Security Act, section 1128(c)(3)(B).
15. The Secretary delegated to the I.G. the duty to impose and direct exclusions
pursuant to section 1128
of the Social Security Act. 48 Red. Reg. 21662 (May 13, 1983).
16. On June 20, 1989, the I.G. notified Petitioner that he was being excluded
from participation in the
Medicare and Medicaid programs as a result of his conviction of a criminal offense
related to the delivery
of an item or service under Medicaid. I.G. Ex. 8.
17. Petitioner was notified that he was being excluded from participation for
five years, the minimum
period mandated by law. I.G. Ex. 8.
18. I do not have authority to decide whether the Secretary lawfully delegated
authority to the I.G. to
impose exclusions.
19. The Secretary was not required to adopt implementing regulations prior
to imposing exclusions
pursuant to section 1128(a)(1) of the Social Security Act.
20. There do not exist disputed issues of material fact in this case; therefore
summary disposition is
appropriate.
21. The exclusion imposed against Petitioner by the I.G. was mandated by law. Findings 12 - 17.
ANALYSIS
1. I do not have authority to decide whether the Secretary lawfully delegated
authority to the I.G.
to impose exclusions. Petitioner argues that the Secretary did not lawfully
delegate to the I.G. the authority
to impose and direct exclusions pursuant to section 1128 of the Social Security
Act. This is so, according
to Petitioner, because the authority to impose and direct exclusions is a "program
operating responsibility"
which is prohibited from transfer to the I.G. by 42 U.S.C. 3526(a).
The identical argument concerning the lawfulness of the delegation of exclusion
authority was made by the
petitioner in Jack W. Greene, DAB Civ. Rem. C-56 (1989), aff'd DAB App. 1078
(1989), aff'd sub nom
Greene v. Sullivan, Civil No. 3-89-758 (E.D. Tenn. February 8, 1990). In Greene
I held that I lacked
authority to hear and decide this argument, because the Secretary's decision
to delegate exclusion authority
to the I.G. is a policy determination which I am without authority to review.
This holding was affirmed on appeal by the Departmental Appeals Board (the
Board). DAB App. 1078 at
18 - 19.
I premised this holding on my conclusion that my authority to hear and decide
issues raised by the parties
to exclusion cases is limited to those issues which I am authorized by law and
regulations to hear and
decide. Neither section 1128 of the Social Security Act, nor section 205(b)
of the Act (incorporated by
reference in section 1128) provide for administrative review of regulations
or policy determinations in
exclusion cases. Regulations contained in 42 C.F.R. Parts 498 and 1001 do not
provide for such review.
Petitioner offers nothing to augment that which was argued by the petitioner
in Greene. I incorporate the
analysis of that decision, again concluding that I do not have authority to
hear and decide Petitioner's
contentions concerning the Secretary's delegation of exclusion authority to
the I.G.2. The Secretary is not
required to adopt regulations implementing the 1987 revisions to section 1128(a)
before the I.G. may make
exclusion determinations pursuant to the law. Petitioner contends that the I.G.'s
exclusion determination is
defective because the Secretary has not yet adopted regulations implementing
the 1987 revisions to section
1128(a). Petitioner asserts that section 1128(a) is ambiguous, and that without
regulations explaining and
implementing the law, the law cannot be meaningfully applied in individual cases.
This identical argument
was also raised by the petitioner in Greene, and it was expressly found to be
without merit, both by the
Board and in federal district court.
There is no legal requirement that the Secretary adopt regulations to construe
or implement a law, so long
as the Secretary carries out his statutory duty pursuant to "ascertainable
standards" and provides a
statement showing his reasoning in applying the standards. Patchogue Nursing
Center v. Bowen, 797 F.2d
1137, 1143 (2d Cir. 1986), cert. denied, 479 U.S. 1030 (1987). The Secretary
is not required to adopt
regulations applying section 1128(a), because the law is unambiguous and the
standards for application of
that section are plainly set forth in the law. Greene, supra.
Petitioner pleaded no contest to a charge of filing false Medicaid claims.
The I.G. excluded Petitioner
pursuant to section 1128(a)(1), which mandates exclusion of parties convicted
of criminal offenses related
to the delivery of an item or service under Medicare or Medicaid. As I hold,
infra, this section plainly
applies to the offense of which Petitioner was convicted. That application is
evident from the language of
the statute. It is also evident both from legislative history and from comparison
of the current law with its
predecessor.
Petitioner argues that section 1128(a) is ambiguous because the conduct on
which criminal charges was
premised could arguably have been a basis for exclusion under one of the other
subsections of section
1128. Petitioner asserts that without implementing regulations, it is not possible
to rationally choose which
part of section 1128 applies in individual cases.
I disagree. As I explain infra, section 1128(a)(1) is part of a comprehensive
statute which both mandates
and permits the Secretary to impose exclusions based on specified categories
of conviction or conduct.
The statute is not ambiguous when read in context.
Petitioner also argues that the Secretary's enforcement of section 1128(a)
in the absence of implementing
regulations violates section 552(a)(1)(D) of the Administrative Procedure Act,
5 U.S.C. 552(a)(1)(D). This
section requires an agency to publish:
(S)ubstantive rules of general applicability adopted as authorized by law,
and statements of general
policy or interpretations of general applicability formulated and adopted by
the agency; . . . .
I disagree with Petitioner's contention. Where an agency operates directly
pursuant to the language of a
statute in satisfaction of the standards expressed in Patchogue, there is no
publication requirement imposed
by the Administrative Procedure Act.
3. There are no disputed issues of material fact which would preclude summary
disposition. This
case is before me on the I.G.'s motion for summary disposition. Petitioner objects
to summary disposition
being entered against him, arguing that the reasonableness of the exclusion
cannot be decided without an
evidentiary hearing.
Petitioner asserts that he "never consented to the imposition of a judgment
upon him" (Petitioner's Brief at
21). Therefore, according to Petitioner, he should not be estopped by his criminal
conviction from
presenting evidence to show that he was not actually guilty of the offense of
which he was charged and to
which he pleaded. Petitioner has submitted his affidavit to show: (1) that he
never intentionally committed
a criminal offense, and (2) his understanding of the legal significance of his
plea to the criminal charges.
P. Ex. 1.
I have assumed for purposes of deciding the I.G.'s motion for summary disposition
that the facts alleged by
Petitioner in his affidavit are true. However, the facts alleged by Petitioner
are not material to the issues in
this case.
Summary disposition is appropriate in an exclusion case where there are no
disputed issues of material fact
and where the only issues to be resolved are issues involving application of
the law to the undisputed
material facts. John W. Foderick, M.D., DAB App. 1125 (1990); see Federal Rules
of Civil Procedure,
Rule 56; Collins v. American Optometric Ass'n., 693 F.2d 636 (7th Cir. 1982).
This case involves no disputed issues of material fact. Section 1128(a)(1)
mandates exclusion when a party
is convicted of a criminal offense relating to the delivery of an item or service
under Medicare. The
triggering event is the conviction of an offense and not the commission of the
conduct upon which the
criminal charges are based. The term "conviction" is defined by section
1128(i). If a disposition of a
criminal offense meets the statutory definition of a conviction, then it is
a "conviction" within the meaning
of section 1128(i) regardless of a party's personal belief as to whether he
is guilty of a crime. And, if the
offense of which a party is convicted is related to the delivery of an item
or service under Medicare or
Medicaid, then it falls within the mandatory exclusion provisions of section
1128(a)(1). It is therefore not
relevant, in deciding whether the I.G. had authority to impose an exclusion
pursuant to section 1128(a)(1),
that a party may assert that he is not guilty of the offense of which he was
convicted. See Foderick, supra;
Andy E. Bailey, C.T., DAB App. 1131 (1990).
The facts material to this case consist of the specific criminal charges against
Petitioner, the offense to
which Petitioner pleaded, and the disposition of that plea. The I.G. has offered
as exhibits the official
records which describe the criminal charges against Petitioner and the disposition
of those charges. I.G.
Ex. 1-7, 8A. These exhibits contain the facts necessary to resolve the issues
of material fact. Petitioner has
not disputed the authenticity, accuracy, or completeness of any of these documents.
Nor has Petitioner
offered any exhibits of his own which would dispute the facts contained in these
exhibits. I conclude that
there exist no disputed issues of material fact in this case and that summary
disposition is therefore
appropriate.
4. Petitioner was convicted of a criminal offense. Petitioner asserts that
he was not "convicted" of
any offense within the meaning of section 1128. Specifically, Petitioner contends
that no plea to the
criminal charges against him was "accepted" by the Utah court. I disagree
with Petitioner's contention. I
conclude that Petitioner was convicted of a criminal offense within the meaning
of section 1128(i)(3). I
also conclude that Petitioner was convicted of a criminal offense within the
meaning of section 1128(i)(4)
of the Social Security Act.
Section 1128(i) provides that 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;
(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.
Petitioner offered a plea of "no contest" to a criminal charge. Findings
3, 7. The Utah court received this
plea as a disposition of Petitioner's criminal case. Finding 7.
Petitioner argues that his plea was not "accepted" within the meaning
of section 1128(i)(3), because the
Utah court held imposition of judgment in abeyance pending Petitioner's satisfaction
of the terms of a plea
agreement, and dismissed the charges after Petitioner satisfied the terms of
his plea agreement. Although I
accept as true the facts as argued by Petitioner, I conclude that the Utah court
"accepted" Petitioner's no
contest plea.
Petitioner's no contest plea was "accepted" within the meaning of
section 1128(i)(3), because the Utah
court agreed to dispose of the criminal charges against Petitioner based on
its receipt of his plea. Petitioner
offered a no contest plea to a criminal offense in return for payment by Petitioner
of restitution, costs, and a
penalty; and for the opportunity to apply to the Court to have the criminal
complaint dismissed upon
satisfactory completion of the aforesaid conditions. The Court received this
offer with consent. The fact
that the Utah court held entry of the plea in abeyance and subsequently dismissed
the criminal charges
against Petitioner based on his satisfaction of the terms of the plea agreement
does not derogate from my
conclusion that the plea was accepted within the meaning of the exclusion law.
The term "accept" is not specifically defined in section 1128(i)(3)
or elsewhere in section 1128. In the
absence of a specific statutory definition, the term should be given its common
and ordinary meaning.
"Accept" is defined in Webster's Third New International Dictionary
(1969 Edition) as:
2a: to receive with consent (something given or offered) . . . .
A no contest plea is "accepted" within the meaning of section 1128(i)(3)
whenever a party offers a no
contest plea and a court consents to receive it as an element of an arrangement
to dispose of a pending
criminal complaint against that party. James F. Allen, M.D.F.P., DAB Civ. Rem.
C-152 (1990).
This interpretation is not only consistent with the common and ordinary meaning
of the term "accept" but
with Congressional intent, as expressed through legislative history. Congress
intended that its definition of
conviction sweep in not only the situation where a party has been adjudicated
guilty of an offense, but
where a party admits guilt or pleads nolo contendere (no contest) in order to
dispose of a complaint.
Furthermore, Congress concluded that disposition of a criminal charge based
on a guilty plea or a plea of
no contest would be a conviction even under those circumstances where a court
decided to hold in
abeyance entry of a judgment against a party pending the party's satisfaction
of the terms of a plea
agreement. The Congressional committee which drafted the 1986 version of section
1128 stated:
The principal criminal dispositions to which the exclusion remedy [currently]
does not apply are the
"first offender" or "deferred adjudication" dispositions.
It is the Committee's understanding that States are
increasingly opting to dispose of criminal cases through such programs, where
judgment of conviction is
withheld. The Committee is informed that State first offender or deferred adjudication
programs typically
consist of a procedure whereby an individual pleads guilty or nolo contendere
to criminal charges, but the
court withholds the actual entry of a judgment of conviction against them and
instead imposes certain
conditions of probation, such as community service or a given number of months
of good behavior. If the
individual successfully complies with these terms, the case is dismissed entirely
without a judgment of
conviction ever being entered.
These criminal dispositions may well represent rational criminal justice policy.
The Committee is
concerned, however, that individuals who have entered guilty or nolo contendere
pleas to criminal charges
of defrauding the Medicaid program are not subject to exclusion from either
Medicare or Medicaid. These
individuals have admitted that they engaged in criminal abuse against a Federal
health program and, in the
view of the Committee, they should be subject to exclusion. If the financial
integrity of Medicare and
Medicaid is to be protected, the programs must have the prerogative not to do
business with those who
have pleaded to charges of criminal abuse against them.
H.R. No. 727, 99th Cong., 2d Sess. 75, reprinted in 1986 U.S. Code Cong. &
Admin. News 3607, 3665;
Carlos E. Zamora, M.D., DAB App. 1104 (1989), at 5-6.
The committee also stated that:
With respect to convictions that are "expunged," the Committee intends
to include all instances of
conviction which are removed from the criminal record of an individual for any
reason other than the
vacating of the conviction itself, e.g., a conviction which is vacated on appeal.
Id.; Zamora, supra, at 6.
The Court's disposition of Petitioner's plea under the terms of the plea agreement
also constitutes a "first
offender" program within the meaning of section 1128(i)(4). The plea agreement
specifically recited that
Petitioner's plea was part of a first offender program. I.G. Ex. 2 at Paragraph
5. Moreover, my
interpretation of the law and my application of the law to the facts of the
case is consistent with Congress'
intent as expressed in legislative history. The arrangement entered into by
Petitioner falls squarely within
the kinds of arrangements which the committee responsible for drafting the law
sought to include within
the ambit of section (i)(4). H.R. No. 727, supra.
5. Petitioner was convicted of a criminal offense related to the delivery of
an item or service
under Medicaid. Petitioner argues that the I.G. lacked authority to exclude
him pursuant to section
1128(a)(1) because the offense of which Petitioner was convicted does not relate
to the delivery of an item
or service under Medicare or Medicaid. Petitioner contends that "financial"
offenses, including those that
relate to Medicare or Medicaid, were not intended by Congress to be included
within the reach of section
1128(a)(1). Petitioner also contends that a conviction of an offense does not
fall within section 1128(a)(1)
absent proof that he intentionally engaged in conduct prohibited by law. According
to Petitioner, the
offense of which he was convicted was an offense embodying a "strict liability"
violation standard.
Petitioner asserts that the record does not establish the intent required to
bring his conviction within the
ambit of section 1128(a)(1).
I find that these arguments are not supported by the law. Section 1128(a)(1)
was intended, among other
things, to reach convictions of criminal offenses which made Medicare or Medicaid
programs the intended
victims of theft and fraud. Petitioner's conviction for filing false Medicaid
reimbursement claims is among
the types of offenses that are covered by section 1128(a)(1). I do not find
that Petitioner was convicted of
an offense based on strict liability, as opposed to an offense which required
proof of intent to commit an
unlawful act. However, even if that were the case, Petitioner would still stand
convicted of a criminal
offense related to the delivery of an item or service under Medicaid.
Petitioner contends that the exclusion law, in requiring that the offense be
related to the delivery of an item
or service, requires that the offense relate specifically to an aspect of the
delivery. According to Petitioner,
the items or services delivered by a health care provider are separate and distinct
from the programs'
reimbursement for those services and items. He argues that the offense of which
he was convicted does not
fall within section 1128(a)(1), because that offense relates to the reimbursement
claim he made for an item
or service and not to the actual delivery of the item or service.
Petitioner's argument is inconsistent with both the language and the structure
of the exclusion law. His
analysis of section 1128(a)(1) is narrower than the meaning conveyed by the
term "related to the delivery
of an item or service." It also ignores the companion section, section
1128(a)(2), which mandates
exclusion of parties convicted of criminal offenses relating to neglect or abuse
of patients in connection
with the delivery of a health care item or service. If Petitioner's interpretation
of section 1128(a)(1) were
accepted, then there would be no meaningful difference between sections 1128(a)(1)
and 1128(a)(2),
because Petitioner would limit the reach of section 1128(a)(1) to convictions
of offenses related to
misfeasance or malfeasance in the delivery of items or services covered by Medicare
or Medicaid.
The petitioner in the Greene case also argued that section 1128(a)(1) applied
only to convictions for
misfeasance or malfeasance in the delivery of items or services, as opposed
to the commission of theft or
fraud against Medicare or Medicaid programs. The Board expressly rejected this
argument, holding that:
[The] . . . offense is directly related to the delivery of the item or service
since the submission of a bill
or claim for Medicaid reimbursement is the necessary step, following the delivery
of the item or service, to
bring the "item" within the purview of the program.
DAB App. 1078 at 7. The Board based its holding on the plain meaning of the
law, and also on the law's
legislative history, as well as on comparison of language in the current version
of the law with language
contained in previous versions. Id. In so holding, the Board found that the
current legislation constituted a
broadening of the scope of the mandatory exclusion provisions of the law and
not a narrowing of that
scope, as was contended by the petitioner. DAB App. 1078 at 11.
This case falls squarely within the holding of Greene. The criminal offense
of which Petitioner was
convicted consisted of filing a false claim for Medicaid reimbursement. Here,
as in Greene, Petitioner's
submission of a Medicaid reimbursement claim was the step necessary to bring
his service within the
purview of the Utah Medicaid program.
The Board has recently held that a criminal offense is related to the delivery
of an item or service under
Medicare or Medicaid where the intended victim of the crime is Medicare or a
Medicaid program.
Napoleon S. Maminta, DAB App. 1135 (1990). The criminal offense in Maminta consisted
of the
unlawful conversion of a Medicare reimbursement check, and the victim of the
crime was the Medicare
program. In the present case, the Utah Medicaid program was the victim of Petitioner's
crime because the
offense of which Petitioner was convicted consisted of filing a false claim
against Medicaid.
Petitioner argues that where a conviction or underlying conduct may be a basis
for an exclusion under both
permissive and mandatory exclusion subparts of section 1128, the law compels
the Secretary to consider
the case pursuant to the permissive exclusion subparts. He argues that the offense
of which he was
convicted falls within the ambit of subparts of the exclusion law which provide
for permissive, as opposed
to mandatory, exclusion of parties. Petitioner asserts that the Secretary might
have such authority in this
case, pursuant to sections 1128(b)(1), (b)(6), and (b)(7). Therefore, according
to Petitioner, his conviction
should have, at most, provided the Secretary with discretionary authority to
impose an exclusion.
Petitioner's analysis of the law, if accepted, would emasculate the mandatory
exclusion provisions of
section 1128(a). It would also require the conclusion that Congress' most recent
revision of the law was
intended, through the addition of permissive exclusion subparts, to weaken the
mandatory exclusion
provisions of section 1128(a). This analysis is unsupported by the text, history,
or evolution of the
exclusion law.
The plain meaning of section 1128(a)(1) is that parties who are convicted of
"financial" crimes against
Medicare or Medicaid must be excluded from participation, even if the convictions
or the conduct which
underlies the convictions might arguably give the Secretary permissive authority
to exclude under some
other subpart of section 1128. That meaning is evident when section 1128(a)
is read in context with the
other parts of section 1128. It is also evident when the evolution of the exclusion
law is considered.
The exclusion law is the latest version of a series of Congressional enactments
which have progressively
strengthened remedies against parties who are convicted of crimes related to
or directed against
government-financed health care programs. However, the core of the law has remained
unchanged since
enactment of the earliest version. That core has always been the requirement
that parties who are convicted
of criminal offenses against Medicare or Medicaid be excluded from participation
in these programs.
In 1977, Congress passed a law requiring the Secretary to suspend physicians
or practitioners convicted of
criminal offenses related to their involvement in Medicare or Medicaid. 91 Stat.
1175, 1192-1193 (1977)
(codified as section 1862(e)(1) of the Social Security Act). By its terms and
history, this mandatory
exclusion law was directed against physicians or practitioners who were convicted
of fraud against
Medicare or Medicaid. In the legislative history to the law, Congress specifically
stated its intent to
mandate exclusion of those who were convicted of acts of fraud against these
programs. H.R. Rep. No. 95-
393-Part II, 95th Cong., 1st Sess. 44 (1977).
The law was revised in 1980 to assure that exclusions would also be imposed
against health care
professionals, other than physicians, who committed program-related crimes.
94 Stat. 2599, 2619 (1980)
(codified as section 1128(a) of the Social Security Act). The 1980 revision
maintained the mandatory
exclusion features of the 1977 enactment, but broadened the scope of its coverage.
The current law was adopted by Congress in August 1987. Congress again broadened
the reach of the law
by adding sections which: (1) required exclusion of parties who were convicted
of offenses involving
patient neglect or abuse (section 1128(a)(2)); and (2) permitted exclusion of
parties under a range of
circumstances (section 1128(b)).
Thus, Congress has over time both broadened and strengthened the provisions
of the exclusion law. At no
time has Congress ever intimated by its revisions that the mandatory exclusion
provisions of section
1128(a) were to be weakened, as is contended by Petitioner.
The petitioner in Greene made the same arguments with respect to sections 1128(b)(1)
and (b)(7) as are
made by Petitioner. The Board found these arguments to be without merit:
While it is not inconceivable that one of these provisions could have been
applied in the absence of
section 1128(a), which provides that the Secretary "shall" exclude
individuals where applicable, these
provisions focus on different circumstances from those raised here, such as
where the individual has not
been convicted of an offense or where the conviction does not relate to the
Medicare program or a State
health care program . . . Congress clearly viewed the exclusion provisions,
including sections 1128(a)(1)
and 1128(b)(1), as a comprehensive and inter-related set of provisions. The
application of the provisions
here gives full weight and effect to each of the provisions, and clearly does
not nullify the effect of section
1128(b)(1) as the Petitioner argued.
DAB App. 1078 at 9-10 (emphasis in original).
The Board also found the arguments as to section 1128(b)(7) to be without merit:
(S)ection 1128(b)(7) does not require the Secretary to undertake independent
investigations of possible
further violations when section 1128(a)(1) on its face applies and Petitioner
may be excluded based upon
his actual conviction under State law.
DAB App. 1078 at 10 (emphasis in original).
The petitioner in Greene did not argue that his conduct should have been considered
by the Secretary under
the permissive exclusion authority contained in section 1128(b)(6). However,
there is no more reason to
require the Secretary to evaluate Petitioner's conduct under this section than
there is to require such
evaluation pursuant to sections 1128(b)(1) or (b)(7).
Petitioner has made no showing, and I do not find, that the offense of which
he was convicted embodied a
strict liability standard. The statute under which Petitioner was convicted
does not, on its face, embody or
suggest a strict liability standard. The Utah court refrained from making a
ruling as to the standard of
liability embodied in the statute to which Petitioner entered his no contest
plea. I.G. Ex. 8A at 11-12.
Petitioner offered no authority to support his contention. However, even were
I to accept for purposes of
this decision that Petitioner was convicted of a an offense embodying a strict
liability standard, that finding
would not be material to the issue of whether Petitioner was convicted of a
criminal offense within the
meaning of section 1128(a)(1).
At oral argument, counsel for Petitioner conceded that the offense to which
Petitioner pleaded no contest is
a criminal offense under Utah State law. Conviction pursuant to the State law
therefore is conviction of a
criminal offense within the meaning of Utah law, regardless whether the State
law embodies a strict
liability standard.
In enacting section 1128(a)(1), Congress made no distinction as to the standard
of liability required to
satisfy the conviction of a "criminal offense" test. Congress decided
that any conviction of a criminal
offense, including any conviction of a criminal offense under a state law, would
fall within section
1128(a)(1) so long as it related to the delivery of an item or service under
Medicare or Medicaid.
Furthermore, there is no language in section 1128(i) which suggests that the
definition of "conviction"
should apply only to those cases where the underlying criminal law embodies
an element of intent. I
conclude that, had Congress intended to distinguish between convictions of offenses
which embody an
element of intent and those which are based on a strict liability standard,
it would have done so, either in
section 1128(a)(1) or in section 1128(i). Therefore, I find no merit in Petitioner's
argument that he was not
convicted of an offense within the meaning of section 1128(a)(1) because he
was allegedly convicted of a
statute embodying a strict liability standard.
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the I.G.'s
determination to exclude
Petitioner from participation in Medicare, and to direct that Petitioner be
excluded from participation in
Medicaid, for five years was mandated by law. Therefore, I am entering a decision
in this case sustaining
the five year exclusion imposed and directed against Petitioner.
___________________________
Steven T. Kessel
Administrative Law Judge