1. Petitioner was a doctor of osteopathic medicine licensed to practice in the State of Ohio.

2. On August 31, 1998, a Complaint was filed in the Franklin County Municipal Court, State of Ohio, charging that Petitioner knowingly made or caused to be made a false or misleading statement or representation in a claim submitted to the Ohio Department of Human Services, Medicaid Division, for use in obtaining reimbursement from the State of Ohio Medical Assistance Program (Medicaid), a violation of section 2913.40(B) of the Ohio Revised Code. I.G. Ex. 3.

3. Petitioner treated patients for weight loss, which is not an item or service covered by Medicaid, and would thereafter bill Medicaid for the same visit using a false diagnosis for a Medicaid covered item or service. I.G. Ex. 4.

4. On September 29, 1998, Petitioner pled guilty to, and was convicted of, one count of Medicaid Fraud, in violation of section 2913.40(B) of the Ohio Revised Code. I.G. Ex. 5.

5. Petitioner was sentenced to a six-month suspended period of incarceration, followed by a 24-month probation period and was directed to pay $2,380.31 in restitution, $250.00 in fines, and $1,000.00 in investigative costs. I.G. Exs. 4 and 5.

6. Petitioner's criminal plea constitutes a conviction within the meaning of section 1128(i)(3) of the Act.

7. Petitioner's conviction for Medicaid Fraud in violation of section 2913.40(B) of the Ohio Revised Code is related to the delivery of a health care item or service under the Medicare/Medicaid programs within the meaning of section 1128(a)(1) of the Act.

8. Once an individual has been convicted of a program-related criminal offense under section 1128(a)(1) of the Act, exclusion is mandatory under section 1128(c)(3)(B) of the Act.

9. The I.G. properly excluded Petitioner, pursuant to section 1128(a)(1) of the Act, for a period of five years, as required by the minimum mandatory exclusion provision of 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. For purposes of 1128(a) of the Act, an individual is considered to have been convicted of a criminal offense –

when a plea of guilty or nolo contendere by the individual . . . has been accepted
by a Federal, State, or local court . . . . Section 1128(i)(3) of the Act.

The record reflects that a judgment of conviction was entered in Petitioner's case and he was sentenced by the State court. This judgment was based upon the court's acceptance of Petitioner's guilty plea on September 29, 1998. Petitioner was thus convicted within the meaning of section 1128(i)(3) of the Act.

Next, it is required under section 1128(a)(1) of the Act that the crime at issue be related to the delivery of a health care item or service under the Medicare/Medicaid program. The record establishes that the Petitioner, in pleading guilty to the indictment, admitted to filing, or causing to be filed, claims against Medicaid that charged for items or services which were never provided. The filing of fraudulent Medicare and Medicaid claims has consistently been held to constitute 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).

To determine if an offense is program-related, the administrative law judge (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 an health care item or service under a covered program. Berton Siegel, D.O., DAB CR298 (1993); aff'd, DAB No. 1467 (1994). In Petitioner's case, a necessary nexus links the facts underlying his crime with the delivery of a health care item or service under Medicaid because the falsified claim leading to Petitioner's conviction resulted in his receipt of fraudulent Medicaid reimbursement. In Rosaly Saba Khalil, M.D., DAB CR353 (1995), the 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 health care 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. In the present case, the nexus between Petitioner's offense and the delivery of a health care item or service is firmly established by his guilty plea to the charge of "Medicaid Fraud" in violation of section 2913.40(B) of the Ohio Revised Code.

Petitioner also seeks to challenge the propriety of his criminal conviction, claiming that he was in fact not guilty of the offense for which he has been convicted. Petitioner's argument amounts to a collateral attack on his conviction, which the Departmental Appeals Board has previously held to be an ineffectual argument in the context of an exclusion appeal as the I.G. and the ALJ are not permitted to look beyond the fact of conviction. Paul R. Scollo, D.P.M., DAB CR300 (1994); aff'd, DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter Edmondson, DAB CR163 (1991); aff'd, DAB No. 1330 (1992).

Petitioner also raises other challenges to his exclusion. He asserts that his exclusion has the impermissibly harsh consequence of depriving him of employment as such exclusion makes it difficult for him to practice medicine. Similar claims regarding loss of employment opportunities however have been previously rejected. See Arlene Hunter, R.N., DAB CR505 (1997). Finally, Petitioner claims that he suffers from a mental illness (bipolar disorder) which precludes his exclusion under protections afforded by the Americans with Disabilities Act. I have no authority to consider such claim, and Petitioner, if he so chooses, must pursue his claim in another forum.

^{(1) In this decision, I refer to all programs from which Petitioner has been excluded, other than Medicare, as "Medicaid."}