By letter dated August 31, 1998, the Inspector General (I.G.), United States Department of Health and Human Services (DHHS), notified Sandra Marie Petersen (Petitioner) that she would be excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act), for a period of five years.⁽¹⁾ The I.G. explained that the five-year exclusion was mandatory under section 1128(a)(1) of the Act, based upon Petitioner's conviction, in the County Court of Jefferson County, Colorado (Jefferson County Court), of a criminal offense related to the delivery of an item or service under the Medicaid program.

Petitioner filed a request for review of the I.G.'s action. The I.G. moved for summary disposition. Because I have determined that there are no material and relevant factual issues in dispute (the only matter to be decided is the legal significance of the undisputed facts), I have decided this case on the basis of the parties' written submissions in lieu of an in-person hearing.

Both parties submitted briefs in this matter. The I.G. submitted five proposed exhibits (I.G. Exs. 1-5). Petitioner did not object to these exhibits and I admit I.G. Exs. 1-5 into evidence. Petitioner submitted 17 letters and documents, which I have designated as Petitioner's exhibits 1-17 (P. Exs. 1-17). The I.G. did not object to these exhibits and I admit P. Exs. 1-17 into evidence. Petitioner also submitted a Response to the I.G.'s Brief.

I grant the I.G.'s motion for summary disposition. I affirm the I.G.'s determination to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs for a period of five years.

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act make it mandatory for any individual who has been convicted of a criminal offense related to the delivery of an item or service under Medicare or Medicaid to be excluded from participation in all federal health care programs for a period of at least five years.

Section 1128(i) of the Act provides that an individual or entity will be 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.

Section 1128(i) of the Act establishes four alternative definitions of the term "convicted." An individual or entity need satisfy only one of the four definitions under section 1128(i) to establish that the individual or entity has been convicted of a criminal offense within the meaning of the Act.

PETITIONER'S ARGUMENTS

Petitioner contends that she was not responsible for her misconduct. Rather, she maintains that the record reflects that she worked as a bookkeeper for her former husband in his practice as a psychologist, and that he instructed her to prepare false billings for submission to Medicaid. Petitioner states that she engaged in the fraudulent billing practice scheme under duress, and attempted unsuccessfully to expose the fraudulent practice. Petitioner also asserts that, as she was not paid for her services, she was not an employee of her former husband. She also argues that she did not profit financially from her husband's fraudulent Medicaid billing scheme. Petitioner contends that the services she performed as her former husband's bookkeeper were not related to the delivery of an item or service under the Medicaid program. Finally, although not contesting the fact that she was convicted of a criminal offense, Petitioner argues that she was not advised in the criminal proceedings of all the potential consequences of her guilty plea.

1. During the period relevant to this case, Petitioner worked as a bookkeeper for her former husband, Dr. Brian Brody, a clinical psychologist. I.G. Ex. 1.

2. As bookkeeper for Dr. Brody, Petitioner did the billing for him, in accordance with his instructions, which included submission of false claims to Medicaid for services not provided. I.G. Ex. 1; P. Ex. 1.

3. On February 17, 1998, Petitioner was charged, in a complaint filed in the Jefferson County Court, with one count of Second Degree Offering of a False Instrument for Recording, a criminal misdemeanor offense. I.G. Ex. 2.

4. On March 17, 1998, Petitioner pled guilty to one count of Second Degree Offering of a False Instrument for Recording, in Jefferson County Court. I.G. Ex. 3.

5. On March 17, 1998, after accepting Petitioner's guilty plea, the Jefferson County Court sentenced Petitioner to one year of supervised probation, 100 hours of community service, $198 in court costs, and joint and several liability with Dr. Brody for restitution of $18,527.00. I.G. Ex. 3.

6. Section 1128(a)(1) of the Act provides for mandatory exclusion from the Medicare, Medicaid, and all federal health care programs of individuals convicted, after August 21, 1996, of a criminal offense related to the delivery of an item or service under the Medicaid program.

7. By letter dated August 31, 1998 (Notice), the I.G. informed Petitioner that, pursuant to section 1128(a)(1) of the Act, she would be excluded from participation in the Medicare, Medicaid, and all federal health care programs for five years, effective 20 days from the date of the Notice. P. Ex. 3.

8. Petitioner's guilty plea, the Jefferson County Court's acceptance of that plea, and her subsequent conviction, constitute conviction of a criminal offense within the meaning of sections 1128(a)(1) and 1128(i)(3) of the Act. FFCL 3-5.

9. Petitioner's conviction for Second Degree Offering of a False Instrument for Recording on March 17, 1998, as a result of her participation in a scheme to submit false billings to Medicaid, is related to the delivery of an item or service under the Medicaid program, within the meaning of section 1128(a)(1) of the Act.

10. An individual or entity convicted of a program-related criminal offense under section 1128(a)(1) of the Act must be excluded for a minimum period of five years, pursuant to section 1128(c)(3)(B) of the Act.

11. The I.G. properly excluded Petitioner for a five-year period, pursuant to section 1128(a)(1) of the Act, which is the minimum period mandated under section 1128(c)(3)(B) of the Act and regulations codified at 42 C.F.R. § 1001.102(a).

12. Petitioner's assertions that the statutory five-year minimum exclusion mandated under sections 1128(a)(1) and (c)(3)(B) of the Act should be modified or reduced, due to mitigating circumstances, or that the nature of the exclusion be altered so that she may obtain federally guaranteed educational loans, cannot be addressed in this forum.

13. Neither the I.G. nor an administrative law judge (ALJ) has the authority or discretion to reduce the five-year minimum exclusion mandated by section 1128(c)(3)(B) of the Act.

DISCUSSION

The first statutory requirement for the imposition of mandatory exclusion, pursuant to section 1128(a)(1) of the Act, is that the individual or entity in question be convicted of a criminal offense under federal or state law. In the present case, the record reflects that on March 17, 1998, Petitioner entered a plea of guilty to one count of Second Degree Offering of a False Instrument for Recording, in the Jefferson County Court. The Jefferson County Court accepted her plea. Petitioner's admissions are supported by the evidence adduced by the I.G. I.G. Ex. 3. Petitioner does not challenge that she has been convicted of a criminal offense under State law, and I so find. Thus, Petitioner was convicted within the meaning of section 1128(i)(3) of the Act.

Next, under the requirements of section 1128(a)(1) of the Act, the crime at issue must be related to the delivery of an item or service under the Medicare or Medicaid programs. To determine if an offense is program-related, an ALJ must analyze the facts and circumstances underlying the conviction to determine whether a nexus or common sense connection links the offense for which a petitioner has been convicted and the delivery of a health care item or service under a covered program. Berton Siegel, D.O., DAB No. 1467 (1994). In Rosaly Saba Khalil, M.D., DAB CR353 (1995), an ALJ found that a criminal offense stemming from the fraudulent receipt of reimbursement checks from Medicaid provided a sufficient nexus between the offense and the delivery of items or services under Medicaid. Additionally, the ALJ in Khalil held that a nexus may exist "despite the fact that Petitioner may not have provided items or services to Medicaid recipients personally or made reimbursement claims for those items or services." Id.

The record clearly shows that Petitioner worked in her former husband's office as a bookkeeper. As part of her job, she wrote a computer program for Medicaid billing that would bill for one and one-half hours for every one hour of service her former husband rendered. I.G. Ex. 5. As a result of Petitioner's use of this billing program in her former husband's practice, Medicaid paid for psycho-therapy services that Dr. Brody never rendered. Petitioner also admits that she was involved in submitting claims to Medicaid for services never provided, such as, instances in which patients canceled appointments. Id.

In this case, the nexus between Petitioner's offenses and the delivery of items or services under Medicaid is firmly established by her conviction for the charge of Second Degree Offering of a False Instrument for Filing, as the underlying conviction related to false filing of Medicaid claims. Petitioner does not dispute that her conviction related to false filing of Medicaid claims for services her former husband never provided. Although she did not actually provide the services eligible for Medicaid reimbursement, Petitioner, as bookkeeper for her former husband's practice, played an active role in her former husband's scheme to defraud Medicaid.

The I.G. is not precluded from excluding Petitioner under section 1128(a)(1) of the Act because she personally did not provide the services. See Khalil, DAB CR353 (1995), supra. Appellate panels of the Departmental Appeals Board (DAB) and ALJs consistently have held that the filing of fraudulent Medicare and Medicaid claims constitutes clear program-related misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996) (I.G.'s five-year mandatory exclusion of dentist who was convicted in state court of filing false claims upheld); see also, Barbara Johnson, D.D.S., DAB CR78 (1990) (I.G.'s five year mandatory exclusion of dentist convicted of filing false claims upheld).

Petitioner also argues that she should not be subject to exclusion under section 1128(a)(1) of the Act, because she accepted the terms of a plea bargain agreement and entered her guilty plea under duress, and was not informed during the criminal proceeding of the consequences of her guilty plea and conviction. Specifically, Petitioner asserts that she was unaware that she would be excluded from all federal health care programs, and precluded from obtaining federally guaranteed student loans as a result of her criminal conviction. For reasons stated below, I find Petitioner's arguments to be irrelevant, and reject them.

It is well established that arguments regarding the process leading to a petitioner's criminal conviction are irrelevant for purposes of an exclusion proceeding. Charles W. Wheeler, DAB No. 1123 (1990); Douglas Schram, R.Ph., DAB CR215 (1992), aff'd DAB No. 1372 (1992); Paul Karsch, DAB CR454 (1997); Krishan Kumar Batra, M.D., DAB CR537 (1998). In Schram, the petitioner argued that he was not given adequate notice of the consequences of his plea and that his due process rights were violated. An ALJ rejected this argument, relying on the proposition in United States v. Suter, 755 F.2d 523, 525 (7th Cir. 1985), that a defendant does not have to be advised of all of the possible consequences of his plea. Therefore, to the extent that Petitioner's arguments constitute a collateral attack on her criminal conviction, I cannot consider them. Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Peter Edmondson, DAB No. 1330 (1992).

Petitioner also makes several arguments in an apparent attempt to mitigate or alter the nature of her exclusion. Petitioner asserts that (1) she attempted to expose her husband's fraud; (2) she did not profit financially from her offense; and, (3) she was treated leniently by the State court. Even assuming Petitioner's arguments to be true, I cannot consider arguments that the statutory minimum five-year exclusion required by section 1128(a)(1) of the Act "should be modified because of mitigating circumstances . . . ." Alan J. Chernick, D.D.S., DAB CR434, at 5 (1996); see also, Janet Wallace, L.P.N., DAB CR155, at 4 (1991), aff'd, DAB No. 1326 (1992).⁽²⁾

Mitigating factors are not relevant unless the I.G. relies upon aggravating factors to exclude a petitioner for more than five years. 42 C.F.R. § 1001.102(a) and (c). Petitioner was excluded for the minimum mandated period, and the I.G. cited no aggravating factors. Therefore, I am unable to consider Petitioner's assertions that the length of her exclusion period should be reduced. Diane Amicucci, L.P.N., DAB CR540 (1998).

Finally, Petitioner asserts that her nature of her exclusion should be changed, thereby enabling her to qualify for federally guaranteed student loans. In support of her position, Petitioner contends that her attempts to expose her former husband's scheme, her failure to profit financially from his scheme, and her actions taken under duress are factors which the I.G. should have considered. With respect to these arguments, it is well established that when a mandatory exclusion is appropriate, it is irrelevant that a petitioner's conduct might also satisfy the permissive exclusion provisions of section 1128(b). Batra, DAB CR537 (1998), supra. Therefore, I will not consider arguments challenging the nature of Petitioner's exclusion, that is, whether Petitioner should have been excluded under the permissive exclusion provisions of section 1128(b) of the Act, rather than the mandatory provisions of section 1128(a) of the Act.

Petitioner was properly excluded, and the length of her exclusion is mandated by law. Sections 1128(a)(1) and 1128(c)(3)(B) of the Act require that Petitioner herein be excluded from the Medicare, Medicaid and all federal health care programs for a period of at least five years, because she has been convicted of a criminal offense related to the delivery of an item or service under the Medicaid program. Therefore, I sustain the five-year exclusion.

1. In this decision, I use the term "Medicaid" to include any State health care program which receives federal funds, as defined by section 1128(h) of the Act.

2. Although the Wallace case involved an exclusion imposed under section 1128(a)(2) of the Act, rather than an exclusion under section 1128(a)(1) of the Act, as in Petitioner's case, it has been held that "the derivative authority for exclusions under the two sections (convictions for specified offenses) is the same." Rosaly Saba Khalil, M.D., DAB CR353 (1995), at 7, fn.4.