Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
DATE: August 8, 1990
Docket No. C-228
In the case of:
Val Manocchio, M.D.,
Petitioner,
- v -
The Inspector General.
DECISION
Petitioner waived his right to a hearing in this exclusion case and the parties
jointly requested that I issue a
decision and order on the basis of their stipulation of facts dated July 9,
1990.
On January 11, 1990 the Inspector General (I.G.) sent Petitioner a Notice that
he was being excluded from
participation in the Medicare and State health care programs. The I.G. alleged
that Petitioner had been
convicted, within the meaning of section 1128(i) of the Social Security Act,
in the United States District
Court Southern District of Florida, of a criminal offense related to the delivery
of an item or service under
Medicare. Exclusions after such a conviction are required by sections 1128(a)(1)
and 1128(c)(3)(B) of the
Act to be for a period of not less than five years. By letter dated March 8,
1990, Petitioner timely
requested a hearing to contest this Notice. Petitioner contended that he should
not be excluded based upon
the mandatory provisions of sections 1128(a)(1) and 1128(c)(3)(B) because: 1)
Petitioner's misdemeanor
conviction was not a "program related crime"; 2) the offense of which
Petitioner was convicted occurred
prior to the amendment and application of the mandatory period and would be
in violation of the ex post
facto clause of the United States Constitution; and 3) Petitioner was not properly
convicted, as he was not
informed that his guilty plea would also result in his exclusion from Medicare
and Medicaid.
I held two telephone prehearing conferences in this case, one on May 24, 1990
and another on June 5,
1990. During the May 24, 1990 conference, Petitioner advised me that he had
filed a law suit in federal
court challenging his exclusion, based primarily on his allegation that the
acts underlying the conviction
occurred prior to the amendments to section 1128, which mandated a minimum period
of exclusion under
section 1128(c)(3)(B). Petitioner believes that this made the application to
him of the amendments an
unconstitutional ex post facto application of the statute. Petitioner requested
a continuance until his court
case was decided. The I.G. opposed this motion during the June 5, 1990 conference
and made a motion for
summary disposition. I denied Petitioner's request. In the absence of an order
by a federal court to defer
adjudication, I felt compelled by the Act to go forward with this case, and
I set a briefing schedule for it.
On July 12, 1990, I received a stipulation of facts, entitled "Stipulation
Of Administrative Judgment of
Exclusion," dated July 9, 1990, in which the parties agreed that: 1) an
administrative judgment of
exclusion should be entered against Petitioner; and 2) the entry of this judgment
meant that Petitioner had
exhausted his administrative remedies and could proceed to litigate his federal
court action.
ISSUES
1. Whether Petitioner was convicted of a criminal offense related to the delivery
of an item or service
under Medicare or Medicaid, within the meaning of section 1128(a)(1) of the
Social Security Act.
2. Whether application to Petitioner of the mandatory minimum period of exclusion
provided for in
section 1128(c)(3)(B) of the Act is unconstitutional under the ex post facto
clause and the Double Jeopardy
clause of the Fifth Amendment.
3. Whether I am without authority to adjudicate the constitutionality of a
statute that I am charged with
applying.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner was convicted of a criminal offense related to the delivery of
a health care item or service
within the meaning of section 1128(a)(1) of the Act. Stipulation Page 1 (Stip.,
1.).
2. As a result of his conviction, Petitioner was sentenced to a term of probation
and was required to pay
restitution of $62.40. Stip., 1.
3. Petitioner was convicted after the effective date of the 1987 amendments
to the Act, and under the terms
of the Act the mandatory minimum period of exclusion provided for in section
1128(c)(3)(B) applies.
Stip., 1.
4. The underlying offense which resulted in Petitioner's conviction occurred in 1984. Stip., 1.
5. I do not have the authority to declare a federal statute unconstitutional or to invalidate a regulation.
DISCUSSION
I have considered the constitutional issues raised in this case carefully and
I conclude that I am without
authority to adjudicate them. See Stip., 2. The scope of my review in these
cases is stated in 42 C.F.R.
1001.128(a). This section limits an appeal in this type of case to the issues
of (1) whether a petitioner was,
in fact, convicted; (2) whether the conviction related to petitioner's participation
in the delivery of medical
care or services under the Medicare or Medicaid programs; and (3) whether the
length of the exclusion is
reasonable. These issues relate to the propriety of the imposition of the exclusion
in a particular case and I
have the authority to interpret section 1128 and the regulations promulgated
thereunder. I do not have the
authority to declare a federal statute unconstitutional or to invalidate a regulation.
Petitioner must address
these arguments in another forum, since I do not have the authority. See Section
205(b) of the Social
Security Act; Jack W. Greene, DAB Civ. Rem. C-56 at 7, aff'd. DAB App. 1078
at 18 (1989); Eulalia
Sentmanat, M.D., DAB Civ. Rem. C-88 at 7 (1989); Frank Waltz, M.D., DAB Civ.
Rem. C-86 at 8 (1989).
Based on the parties' stipulations, there are no genuine issues of material
fact which would require the
submission of additional evidence. There is no need for an evidentiary hearing,
and the parties have not
requested oral argument. The issue of whether the I.G. had the authority to
exclude Petitioner under
Section 1128(a)(1) is a legal issue. I have concluded as a matter of law, and
the parties have so stipulated,
that Petitioner was properly excluded and that the length of his exclusion is
mandated by law.
Accordingly, the I.G. is entitled to summary disposition as a matter of law.
See Charles W. Wheeler and
Joan K. Todd, DAB App. 1123 at 10 (1990), and Rule 56 F.R.C.P.
CONCLUSION
Based on the law and the undisputed facts in the record of this case, I conclude
the I.G. properly excluded
Petitioner from the Medicare and Medicaid programs for the minimum mandatory
period of five years.
Steven T. Kessel
Administrative Law Judge