Raymond R. Valoso, M.D., DAB CR124 (1991)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Raymond R. Veloso, M.D.,

Petitioner,
- v. -
The Inspector General.

DATE: April 4, 1991

Docket No. C-260

DECISION

In this case, governed by section 1128 of the Social
Security Act (Act), Petitioner requested a hearing before
an administrative law judge (ALJ) to contest the June 6,
l990 notice of determination (Notice) issued by the
Inspector General (I.G.). The Notice informed Petitioner
that he was being excluded from participation in the
Medicare and Medicaid programs for five years. 1/

By letter dated June 6, l990, the I.G. advised Petitioner
that he was being excluded from participation in the
Medicare and State health care programs, alleging that
Petitioner had been convicted, within the meaning of
section 1128(i) of the Act, of a criminal offense related
to the delivery of an item or service under Medicaid.
Petitioner was further informed that exclusions from
participation in Medicare and Medicaid of individuals
convicted of such an offense are mandated by section
1128(a)(1) of the Act for a minimum period of five years.
He was advised that his exclusion was for the minimum
five-year period.

Petitioner timely requested a hearing, and the case was
assigned to ALJ Charles E. Stratton for hearing and
decision. After a prehearing telephone conference which
was conducted by Judge Stratton, the I.G. filed a motion
for summary disposition. Petitioner filed an opposition.
On March 8, l99l the case was reassigned to me. On
March l5, l99l I conducted a prehearing telephone
conference at which the parties agreed that the case was
appropriate for summary disposition on the basis that
there were no genuine issues of material fact which
remained to be resolved.

Having reviewed all of the evidence and the arguments
made, I conclude that the exclusion imposed by the I.G.
in this case is mandatory under the law. Therefore, I
enter summary disposition in favor of the I.G.


ISSUES

l. 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 Act.

2. Whether the mandatory provisions of section
1128(c)(3)(B) apply to the facts of this case.


FINDINGS OF FACTS AND CONCLUSIONS OF LAW

1. By Information dated April 21, l989, the Assistant
State Attorney for the State of Florida in the County of
Palm Beach charged Petitioner with three criminal
violations: l) filing a false Medicaid claim; 2)
receiving payment for a false Medicaid claim; and 3)
grand theft in violation of Section 409.325(a) and
(5)(b), section 409.325(4)(c) and (5)(b), and section
812.014 of the Florida statutes. I.G. Exhibit l. 2/


2. On October 6, l989, Petitioner pled guilty to count
one of the Information. Count one charged that on or
about the lst day of December l986 and continuing through
the 30th day of November l987, Petitioner "did knowingly
and unlawfully file, attempt to file, or aid or abet in
the filing of false claims to wit: claims made to the
Florida Medicaid Program, a state or federally funded
assistance program, seeking payment for physician
services, rendered to one or more of the following
persons and/or their dependents . . . said Physician
services having not been rendered as represented in said
claims, the aggregate value of said claims being more
than two hundred ($200.00) in a twelve (12) consecutive
month period, in violation of Section 409.325(a) and
(5)(b), Florida Statutes." I.G. Ex. 1.

3. Petitioner's plea of guilty was accepted by the
court. I.G. Ex.2.; P's Exs. A-D.

4. By Order dated October 6, l989, the Circuit Court of
Palm Beach County, Florida, placed Petitioner on
probation for a period of one year. Petitioner was
required to pay restitution in the amount of $492.00 to
the State Medicaid Fraud Control Unit and to pay
$5,000.00 costs of investigations to the Medicaid Fraud
Control Unit. I.G. Ex. 2.; P's Exs. A-B.

5. On June 6, l990, the I.G. notified Petitioner of his
exclusion for five years from the Medicare and Medicaid
programs. I.G. Ex. 3.

6. Petitioner was "convicted" of a criminal offense
within the meaning of sections 1128(a) and 1128(i) of the
Act (Act). Findings l-4; Act, sections ll28(a) and
1128(i).

7. Petitioner was convicted of a criminal offense which
was "related to the delivery of an item or service" under
a State health care program, within the meaning of
section ll28(a)(1) of the Act. Findings l-4; Act,
sections ll28(a)(l) and 1128(i).

8. Pursuant to section ll28(a)(1) of the Act, the
Secretary is required to exclude Petitioner from
participation in Medicare and to direct his exclusion
from participation in Medicaid. Act, section
ll28(c)(3)(B).

9. The minimum mandatory period for an exclusion
pursuant to section ll28(a)(1) of the Act is five years.
Act, section ll28(c)(3)(B).

10. The Secretary delegated to the I.G. the duty to
impose and direct exclusions pursuant to section 1128 of
the Act. 48 Fed. Reg. 21662 (May l3, l983); 42 U.S.C.
3521.

11. The exclusion imposed and directed against
Petitioner by the I.G. is mandated by law. Findings l-8;
Act, section ll28(a).

ANALYSIS

1. 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.

The undisputed facts in this case show that on October 2,
l989, in the Circuit Court for Palm Beach County,
Florida, Petitioner pled guilty to the criminal offense
of Medicaid Fraud. His plea of guilty was accepted by
the court and Petitioner was sentenced to one year
probation; to pay $492.00 restitution to the State
Medicaid Fraud Control Unit; to pay $5,000.00 for the
cost of investigations to the Medicaid Fraud Control
Unit; and to pay $80.25 court costs. I.G.'s Ex. 2; P's
Exs. A-D; and Petitioner's Amended Reply Brief.

Petitioner's plea was an Alford plea. 3/ Although he
argues that he never admitted guilt to Medicaid fraud,
he does not contest the fact that he was "convicted" of
Medicaid fraud within the meaning of section 1128(i).
In any event, it is well settled that an Alford plea is a
guilty plea. See North Carolina v. Alford, 400 U.S. 25
(l970). For the purposes of the Act, there is a convic-
tion when a plea of guilty or nolo contendere is accepted
by the court. 42 U.S.C. Section 13201-7(i)(3); Charles
W. Wheeler, DAB App. 1123 (l990). Since Petitioner's
plea was accepted by the court, I find that Petitioner
was "convicted" of a criminal offense as that term is
defined in section 1128(i) of the Act.

The evidence further establishes that Petitioner pled
guilty to the statutory offense of "Medicaid Fraud". The
count to which he pled guilty charged that he knowingly
and unlawfully filed, attempted to file, aid or abet in
the filing of false claims made to the Florida Medicaid
Program, a state or federally funded assistance program,
seeking payment for physician services which had not been
rendered as represented in the claims. I.G. Exs. 1 & 2.
The charge on its face shows a program-related offense.
Moreover, that Medicaid was a victim of Petitioner's
fraudulent conduct is shown by the sentence imposed by
the court. The court required Petitioner to make
restitution in the amount of $492.00 and to pay $5,000.00
costs of investigation to the Florida Medicaid program.
See Jack W. Greene, DAB App. l078 (l989); Wheeler,
supra; DeWayne Franzen, DAB App. ll65 (l990). Indeed,
Petitioner has not argued that his conviction was not for
a program-related offense.

I find, therefore, that Petitioner was convicted of an
offense related to the delivery of an item or service
under the Medicaid program.

Petitioner's sole argument against his exclusion from
participation in the Medicare and Medicaid programs
appears to be that he is not guilty of the charge to
which he entered the Alford plea, and therefore he should
not be subject to section 1128(a)(1) sanctions. He
asserts that the nature of his plea (Alford) shows that
he did not admit to any culpability and states that his
plea was entered "under a misunderstanding that resulted
from negotiations between his attorney and the State of
Florida". He argues that he should be allowed to prove
that he did not defraud the Medicaid program.
(Petitioner's Amended Reply Brief).

As the I.G. has pointed out, section 1128(a)(1) requires
Petitioner's exclusion based on the facts in his case,
without a determination of his actual guilt. The I.G.'s
authority to impose and direct exclusions pursuant to
section ll28(a)(1) emanates from the fact of conviction
for a program-related offense. It is not Petitioner's
guilt that has to be determined, but rather the fact of
his conviction. Charles W. Wheeler, DAB App. 1123
(l990). The ALJ is not to delve into the underlying
facts to determine guilt. If Petitioner desires to
challenge the sufficiency of the facts which were used to
support the finding of guilt made by the trial court, or
to otherwise challenge the validity of the guilty plea,
the proper forum for such a challenge is in the trial
court. 4/ Arguments about the process leading to a
petitioner's criminal conviction are irrelevant to an
exclusion proceeding. See David S. Muransky, D.C., DAB
App. 1227 at 6 (l99l); Wheeler, supra; and Andy E.
Bailey, DAB App. 1131 (l990).

Since the undisputed facts before me show that Petitioner
was convicted of a criminal offense, as that term is
defined in section 1128(i) of the Act, and that his
conviction was for an offense related to the delivery of
an item or service under Medicaid, I find that the I.G.
properly excluded Petitioner from participation in the
Medicare and Medicaid programs under section 1128(a)(1)
of the Act.


2. Based on Petitioner's conviction for a criminal
offense related to the delivery of an item or service
under the Medicaid program, the I.G. was required to
exclude Petitioner from participation in the Medicare
program and to direct his exclusion from the Medicaid
program for a minimum period of five years.

The I.G. excluded Petitioner from participation in the
Medicare and Medicaid programs for a period of five
years. Under section 1128(c)(3)(B), a minimum period of
exclusion of five years is mandatory for a conviction of
an offense defined in section 1128(a)(1). Section
1128(c)(3)(B) gives the Secretary no discretion to reduce
the period of exclusion below five years. See David S.
Muransky, D.C., DAB App. 1227 at 6 (l99l); Jack W.
Greene, DAB App. 1078 (l989); Charles W. Wheeler, DAB
App. 1123 at 6 (l990); Mark D. Bornstein, D.P.M., DAB
Civ. Rem. C-218 (l990); and Orlando Ariz, DAB Civ. Rem.
C-115 at 11-12 (l990).

Since Petitioner's criminal conviction fell under section
1128(a)(1), the I.G. was required to exclude his partici-
pation for a mandatory five year period.


CONCLUSION

Having considered all of the evidence and arguments
presented in this case, I find that Petitioner was
convicted of an offense which was related to the delivery
of an item or service under a State health care plan and
that his exclusion by the I.G. from participation in the


Medicare and Medicaid programs for a period of five years
is required under the provisions of sections 1128(a)(1)
and 1129(c)(3)(B) of the Act.


______________________________
Constance T. O'Bryant
Administrative Law Judge


* * * Footnotes * * *

1. "State health care program" is defined by
section ll28(h) of the Act to cover three types of
federally financed programs, including Medicaid. I use
the term "Medicaid" hereafter to represent all state
health care programs from which Petitioner was excluded.
2. The parties' exhibits hereafter will be
referred to as I.G. Ex. (number) for the Inspector
General's exhibits and P. Ex. (letter) for Petitioner's
exhibits.
3. Under an Alford plea, a defendant does not
admit guilt but concedes that the state has sufficient
evidence for conviction. See North Carolina v. Alford,
400 U.S. 25, 35-38.
4. Petitioner did, in fact, appeal certain
aspects of the judgment of conviction to the Fourth
District Court of Appeals. P. Exs. C and D. The
specific issues raised on appeal are not set forth in the
documents of record; however, they are not material to
the resolution of the issues before me. What is clear is
that Petitioner's conviction was not vacated by either
court. P. Exs. C and D and P; Amended Reply Brief.