Under section 1128(a)(1) of the Act, the Secretary may exclude from participation in the Medicare and Medicaid programs any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII or under any State health care program. Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a)(1) of the Act shall be for a period not less than five years. See also, 42 C.F.R. § 1001.102(a).

42 C.F.R. § 1001.102(b) provides that the following factors may be considered to be aggravating and a basis for lengthening the period of exclusion: "(1) [t]he acts resulting in the conviction, or similar acts, resulted in financial loss of $1500 or more to a government program or to one or more other entities. (The entire amount of financial loss to such programs or entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made); (2) [t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; (3) [t]he acts that resulted in the conviction, or similar acts, had a significant adverse physical, mental or financial impact on one or more program beneficiaries or other individuals; (4) in convictions involving patient abuse or neglect, the action that resulted in the conviction was premeditated, was part of a continuing pattern or behavior, or consisted of non-consensual sex acts; (5) [t]he sentence imposed by the court included incarceration; (6) whether the individual or entity has a documented history of criminal, civil or administrative wrongdoing; (7) the individual or entity has at any time been overpaid a total of $1500 or more by Medicare, Medicaid and all other federal health care programs, or other third-party payers, as a result of improper billings; or (8) whether the individual or entity was convicted of other offenses besides those which formed the basis for the exclusion, or has been the subject of any other adverse action by any federal, state or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for the exclusion."

42 C.F.R. § 1001.102(c) provides that only in the event that any of the aforementioned aggravating factors justifies the exclusion for a period longer than five years may any of the following factors be considered as mitigating and a basis for reducing the period of exclusion: "(1) [t]he individual or entity was convicted of 3 or fewer misdemeanor offenses, and the entire amount of financial loss to Medicare and the State health care programs due to the acts that resulted in the conviction is less than $1500; (2) [t]he record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional, or physical condition before or during the commission of the offense that reduced the individual's culpability; (3) [t]he individual's or entity's cooperation with Federal or State officials resulted in -- (i) [o]thers being convicted or excluded from Medicare, Medicaid, or all other Federal health care programs, (ii) [a]dditional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or (iii) [t]he imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter."

1. During the period of time relevant to this case, Petitioner owned and operated a business, Hand-in-Hand Counseling Services, in the State of Georgia. I.G. Ex.7.



2. Hand-in-Hand Counseling Services provided tutoring and counseling services that were not reimbursable by the Georgia State Medicaid Program. I.G. Ex.7.



3. On April 23, 1997, an Indictment was filed in the Glynn Superior Court, State of Georgia, charging Petitioner with two counts of Medicaid Fraud. I.G. Ex. 7.



4. According to the indictment, from April 26, 1993 through January 1995, Petitioner through her business, Hand-in-Hand Counseling Services billed the Georgia Medicaid program using the provider number of another for psychological therapy and other psychological services which were never provided. I.G. Ex. 7.



5. On May 18, 1998, a Judgment was entered in Petitioner's case in accord with the verdict in her case finding her guilty of two counts of Medicaid fraud. I.G. Ex. 2.



6. As a result of her conviction, Petitioner was sentenced to five years in prison; five years on probation; and she was ordered to pay restitution in the amount of $149,315.00 to Medicaid. I.G. Ex. 2.



7. On October 30, 1998, Petitioner was notified by the I.G. that she was being excluded from participation in the Medicare and Medicaid programs for a 15-year period pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the Act. I.G. Ex. 1.



8. Under section 1128(a)(1) of the Act, the I.G. is authorized to exclude any individual or entity that has been convicted of a criminal offense related to the delivery of a health care item or service under Medicare or Medicaid.



9. Where the I.G. determines to exclude an individual pursuant to section 1128(a)(1) of the Act, the term of exclusion will be for a period of five years, in the absence of aggravating or mitigating factors that would support an exclusion of more or less than five years.



10. Petitioner's criminal conviction constitutes a conviction within the scope of section 1128(i) of the Act.



11. Petitioner's conviction for Medicaid Fraud, two counts, is related to the delivery of a health care item or service under the Medicare and/or Medicaid programs within the meaning of section 1128(a)(1) of the Act. The I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act.



12. Petitioner did not prove the presence of any mitigating factors.



13. The aggravating factors established by the I.G. prove Petitioner to be untrustworthy.



14. A 15-year exclusion of Petitioner is reasonable and appropriate.
    
    

Petitioner has argued in her brief that her 15 year exclusion should be reduced because it is unreasonable. In her favor she maintains that she has otherwise had an unblemished record and has submitted character references; that the criminal court has precluded her from employment in a position where she would be responsible for financial management; and that she has already received a severe punishment in the criminal matter. Petitioner has the burden to show the existence of mitigating factors. James H. Holmes, DAB CR270 (1993). Petitioner has not established any of the mitigating factors listed at 42 C.F.R § 1001.102(c). Her claims that she is an otherwise law-abiding person and has been punished sufficiently in the criminal matter are not relevant. As Petitioner has the burden concerning mitigating factors, I find that she has not met such burden and conclude that Petitioner has not proved the existence of any mitigating factors.

In determining whether the length of an exclusion is reasonable, it is the responsibility of the administrative law judge to consider and evaluate all of the relevant evidence brought to bear in this case. The regulation at 42 C.F.R. § 1001.102(b) sets forth the aggravating factors which may be considered in determining the length of an exclusion. I find that the I.G. proved the presence of three aggravating factors. The three aggravating factors consist of the following:

• The acts resulting in Petitioner's conviction, or similar acts, caused financial loss of $1,500 or more to a government program or to one or more other entities. 42 C.F.R. § 1001.102(b)(1). Petitioner's fraud caused very substantial losses to be incurred by Medicaid. The record reflects that the loss to Medicaid was calculated at $149,315.00 and Petitioner was ordered to pay restitution in that amount to Medicaid.
  

• The acts that resulted in Petitioner's conviction, or similar acts, were committed by Petitioner over a period of one year or more. 42 C.F.R. § 1001.102(b)(2). The indictment under which Petitioner was found guilty reflects that the acts occurred from April 1993 through January 1995, a period of one-year and nine months. I.G. Ex. 7.

• The sentence imposed on Petitioner for her crimes included a period of incarceration. 42 C.F.R. §1001.201(b)(2)(v). Petitioner was sentenced to five years in prison. I.G. Ex. 2.
  

Considering Petitioner's evidence of mitigation and the I.G.'s evidence of aggravating factors, I find that the aggravating factors in Petitioner's case make the imposition of the 15-year exclusion reasonable. I note that in evaluating these factors, it is not the mere presence of a greater number of aggravating factors which forms the basis for my decision here. As the Appellate panel has previously held in Barry D. Garfinkel, M.D., DAB No. 1572 (1996), it is the quality of the circumstances, whether aggravating or mitigating, which is to be dispositive in analyzing evidence of these factors. Garfinkel, at 31.

In this case, the aggravating factors established by the I.G. prove Petitioner to be an untrustworthy individual. Petitioner's lack of trustworthiness is established by her involvement of at least 21 months in a scheme to defraud Medicaid. Her fraud was persistent and deliberate, not random or impulsive. The extent to which Petitioner persisted in defrauding Medicaid is established by the large losses she caused the Medicaid program to incur. Her high level of culpability is reflected in the lengthy prison sentence she received. I therefore find that the 15-year exclusion is reasonable and appropriate.

Petitioner also raises a number of challenges to the exclusion in her case. She asserts that the exclusion is unfair because she has been severely punished in the criminal matter and that the exclusion is unnecessary because, as part of the criminal matter she is precluded from employment where she would be responsible for any financial management. I find that such circumstances do not preclude an exclusion action by the I.G. Petitioner also contends that such a lengthy exclusion deprives her of her right to practice her profession but such argument has been previously rejected in other cases. See Arlene Elizabeth Hunter, DAB CR505 (1997).

Petitioner also asserts that in view of her punishment in the criminal matter both the 5-year mandatory exclusion and the 10-year extension are in violation of the protection against double jeopardy. I find no merit in such claim. In Greene v. Sullivan, 731 F.Supp. 838 (E.D.Tenn. 1990), the court found that an exclusion was intended to protect the Medicare and Medicaid programs by barring excluded persons convicted of defrauding those programs from program participation. The court found that these goals "are clearly remedial and include protecting beneficiaries, maintaining program integrity, fostering public confidence in the program, etc." and that the exclusion remedy therefore is more analogous to the revocation of a professional license for misconduct than it is punitive. Id., at 840. The court held that there was no double jeopardy violation. This remedial purpose of a program exclusion was affirmed in Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir 1992). The court determined that the double jeopardy clause was not violated by an exclusion, because the intent, as well as the nature and effect, of the exclusion was remedial rather than punitive. The court looked to the purposes served by the program exclusion and concluded that the legislative history demonstrated that the primary goal of the legislation was to protect present and future Medicare and Medicaid beneficiaries from abusers of these programs.

Joseph K. Riotto,
Administrative Law Judge

⁽¹⁾In this decision, I use the term "Medicaid" to refer to these State health care programs.