By letter dated October 30, 1998, the Inspector General (I.G.), U.S. Department of Health and Human Services (HHS) notified Celia Tindale, R.P.A., the Petitioner herein, that she was being excluded from participation in the Medicare, Medicaid and all federal health care programs. The I.G. explained that the exclusion was being taken, pursuant to section 1128(b)(5) of the Social Security Act (Act), because Petitioner had been excluded, suspended, or otherwise sanctioned by the New York State Department of Social Services (NYSDSS), which operates the New York State Medicaid program, a federal or State health care program, for reasons bearing on her professional competence, professional performance, or financial integrity. The I.G. further explained that such exclusion would remain in effect until Petitioner has been reinstated to the health care program which originally took action against her.

Petitioner filed a timely request for review of the I.G.'s action, and the I.G. moved for summary disposition.

Because I have determined that there are no material and relevant factual issues in dispute (i.e., the only matter to be decided is the legal significance of the undisputed facts), I have granted the I.G.'s motion and decide the case on the basis of written submissions in lieu of an in-person hearing. Petitioner submitted a written statement in support of her case. The I.G. submitted a brief and five proposed exhibits. (I.G. Exhibits (Exs.) 1-5). Petitioner did not object to these exhibits and I accept I.G. Exs. 1-5 into evidence.

I affirm the I.G.'s determination to exclude Petitioner from participation in the Medicare and Medicaid programs for until such time as Petitioner is reinstated to the health care program which took action against her.

Section 1128(b)(5) of the Act authorizes the I.G. to exclude "[a]ny individual or entity which has been suspended or excluded from participation or otherwise sanctioned under . . . a State health care program, for reasons bearing on the individual's or entity's professional competence, professional performance, or financial integrity." The regulation governing the length of exclusion under section 1128(b)(5) of the Act, 42 C.F.R. § 1001.601(b)(1), states that "[a]n exclusion imposed in accordance with this section will not be for a period of time less than the period during which the individual or entity is excluded or suspended from a Federal or State health care program."

In this proceeding, Petitioner challenges the basis for her exclusion by NYSDSS. She asserts that the billing irregularities for which she was excluded did not involve any misconduct on her part. Rather, she maintains that the physician for whom she worked was responsible for the billings and that she was uninvolved in such activities.

In her Brief in Support of Exclusion (I.G. Br.), the I.G. proposed certain findings of fact and conclusions of law. I.G. Br. at 2-4. Petitioner did not expressly deny any of the I.G.'s proposed findings. Accordingly, I adopt many of the I.G.'s proposed findings as undisputed.

1. At all times relevant herein, Petitioner was a Registered Physician's Assistant providing services to elderly and disabled Medicaid patients in New York. I.G. Ex. 4.

2. As a result of an audit investigation by NYSDSS, the Director of Provider Audit determined that Petitioner engaged in unacceptable practices including filing false claims and unacceptable record keeping regarding claims submitted to Medicaid for payment for medical services that she provided. I.G. Ex. 2.

3. On October 31, 1997, the Director terminated Petitioner from participation in the New York State Medicaid program for a period of five years. I.G. Ex. 2.

4. On October 30, 1998, the I.G. notified Petitioner that she was being excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(5) of the Act for reasons bearing on Petitioner's professional competence, professional performance, or financial integrity. I.G. Ex. 1.

5. Pursuant to section 1128(b)(5) of the Act, the Secretary of the Department of Health and Human Services has authority to impose and direct an exclusion against Petitioner from participating in Medicare and Medicaid.

6. The Secretary has delegated to the I.G. the duty to impose and direct exclusions pursuant to section 1128 of the Act.

7. New York Medical Assistance (Medicaid) is a State health care program within the meaning of sections 1128(h) and 1128(b)(5)(B) of the Act.

8. Petitioner's termination from participation in the New York Medicaid program constitutes an exclusion or suspension or other sanction as those terms are used in section 1128(b)(5)(B) of the Act and 42 C.F.R. § 1001.601(a)(2).

9. Petitioner was excluded from participation in a State health care program for reasons bearing on her professional competence, professional performance, or financial integrity, within the meaning of section 1128(b)(5) of the Act.

10. An exclusion imposed in accordance with section 1128(b)(5) of the Act will not be period of time less than the period during which the individual or entity is excluded or suspended from a federal or State health care program. 42 C.F.R. § 1001.601(b)(1).

11. The I.G. properly excluded Petitioner from participation in the Medicare, Medicaid, and all federal health care programs until NYSDSS reinstates her to the New York Medicaid program.

To sustain an exclusion under section 1128(b)(5) of the Act, the I.G. must prove that the petitioner was excluded from a State health care program and that the exclusion or suspension was for reasons bearing on the petitioner's professional competence, professional performance, or financial integrity. I find that these elements have been satisfied in Petitioner's case. The record reflects that on October 31, 1997, the New York State Department of Social Services notified Petitioner that she was excluded from the State's Medicaid program for five years and that her exclusion would "have the effect of denying her payment for any care, services or supplies furnished" to Medicaid patients during the period of exclusion. I.G. Ex. 2. It also advised her that she would appear on a monthly list of persons "not permitted to order or prescribe medical care, services, or supplies reimbursed by Medicaid." Id. There is no evidence that Petitioner challenged such exclusion or that it does not presently remain in effect. Such exclusion is therefore a proper basis for the federal exclusion action.

I further find that Petitioner's exclusion from participation in the State Medicaid program was for reasons bearing on her professional competence, professional performance, or financial integrity. The DAB has established that an exclusion is authorized where there is a "a common sense connection" between the basis for the underlying State exclusion and professional competence, professional performance, or financial integrity. George Iturralde, M.D., DAB No. 1374 (1992). The Board found the connection obvious in cases of overbilling (Iturralde, DAB No. 1374); submission of claims for services not covered by the program (C. William Alexander, Ph.D., DAB No. CR479 (1997)); and violation of record keeping, and provision of services which did not comply with professionally recognized standards (Hassan M. Ibraham, M.D., DAB No. CR445 (1996)). In Thelma Villanueva, M.D., DAB No. CR431 (1996), the ALJ found that where the State agency had excluded a provider because she "submitted or caused to be submitted claims for unnecessary services, engaged in improper record keeping, provided excessive services, and failed to comply with professionally recognized standards of health care, each of these findings related to petitioner's performance as a physician and to her professional competence." Id. at 5.

In the present case, NYSDSS found that Petitioner engaged in unacceptable practices very similar to those which resulted in the exclusion in the Villanueva case. The State found that Petitioner submitted false claims and engaged in unacceptable record keeping by failing to maintain records necessary to fully disclose the medical necessity for and the nature of the medical care, services or supplies furnished. I.G. Ex. 2. In its audit of a sample of medical charts, the State found that Petitioner failed to document a medical necessity for many orders for ambulette transportation and physiotherapy. Id. The State also found that there was no clear medical necessity established for numerous supplies and services. Id. The findings made by NYSDSS address issues of Petitioner's professional competence and professional performance. Petitioner's consistent failure both to document the medical necessity for ambulette services and to indicate the specific goals of the patients' physiotherapy, such as the benefits of physiotherapy and the reasons for its frequency, clearly have a common sense connection to professional competence and professional performance within the scope of section 1128(b)(5) of the Act.

In her defense, Petitioner maintains that she was not responsible for any aspects of the billing or record keeping procedure and thereby implies her conduct was not involved in the shortcomings cited by NYSDSS in its exclusion notice. It is well-established, however, that a section 1128(b)(5) exclusion is derivative, i.e., it stems from the action of another agency, and the I.G. is not required to re-establish the factual or legal basis for an underlying State action. See 57 Fed. Reg. 3299 (Jan. 29, 1992). The DAB has held that the basis of the underlying State action cannot be collaterally attacked or relitigated. See Iturralde, DAB No. 1374; Olufemi Okunoren, M.D., DAB No. 1319 (1992).

NYSDSS terminated Petitioner's participation in the New York State Medicaid program for five years. I.G. Ex. 2. The I.G. excluded Petitioner from Medicare, Medicaid and all federal health care programs for a period lasting until Petitioner has been reinstated to the New York State Medicaid program, the program which originally took the action against her. This length of exclusion is proper. 42 C.F.R. section 1001.601(b)(1).

Section 1128(b)(5) of the Act mandates that Petitioner herein be excluded from the Medicare, Medicaid and all federal health care programs for a period of time not less than the period during which she has been excluded from the New York Medicaid program. The exclusion is therefore sustained.