CASE | DECISION | APPLICABLE LAW | FINDINGS OF FACT AND CONCLUSIONS OF LAW | ANALYSIS | CONCLUSION | JUDGE | FOOTNOTES
Decision No. CR633
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division

IN THE CASE OF  

SUBJECT:

Tanya A. Chuoke, R.N.,

 Petitioner,
DATE: Dec. 14, 1999
                                         
             - v -
 
The Inspector General. Docket No. C-99-418
DECISION
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By letter dated May 29, 1998, the Inspector General (I.G.), U.S. Department of Health and Human Services (DHHS), notified Tanya A. Chuoke, R.N., the Petitioner herein, 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 sections 1128(a)(1) and 1128(c)(3)(B) of the Act, because Petitioner had been convicted of a criminal offense in connection with the delivery of a health care item or service under the Medicare 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 the case on the basis of the parties' written submissions in lieu of an in-person hearing.(2)

Both parties submitted briefs in this matter. The I.G. submitted eleven proposed exhibits (I.G. Exs. 1-11). Petitioner did not object to these exhibits and I accept I.G. Exhibits 1-11 into evidence. Petitioner submitted one exhibit (P. Ex.). The I.G. did not object to this exhibit and I admit P. Ex. 1 into evidence. Petitioner also submitted a reply to the I.G.'s Brief. Petitioner submitted an attachment to her reply brief, which I have designated as Attachment 1. The I.G. did not object to this attachment and I admit Attachment 1 into evidence.

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.

APPLICABLE LAW
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Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate exclusion of any individual, who has been convicted of a criminal offense related to the delivery of an item or service under Medicare or Medicaid, 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 is considered to have been "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
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Petitioner contends that the I.G. has not met the burden of proof in this case. She alleges that the I.G. has not shown by the evidence that 1) the criminal conviction at issue actually relates to her; 2) she was on probation at the time the exclusion letter was mailed or received; and, 3) if she is guilty of the offense, she committed such offense prior to the effective date of the statute under which the I.G. is proceeding.

Petitioner also challenges the fairness of both the criminal proceedings and the exclusion proceedings in her case. She asserts that she was not advised in the criminal proceedings of all the potential consequences of her guilty plea, such as, exclusion from participation in Medicare, Medicaid and other federally funded health care programs.

Regarding the exclusion proceedings, Petitioner asserts that the I.G.'s notice does not state with clarity or particularity the offense for which she was excluded. She also maintains that she did not receive reasonable notice of the exclusion, as required by the regulations. On this issue, Petitioner notes that she was convicted in 1997, but the I.G. did not commence exclusion proceedings until May 1998. She argues that if the I.G. had acted promptly, her exclusion should have commenced shortly after her conviction in 1997. Petitioner also contends that the I.G. has conceded error in mailing the exclusion notice to an incorrect address, which resulted in a lengthy delay in her receipt of the I.G.'s notice, and that she should not be penalized for such delay.

Finally, Petitioner asserts that the five-year length of her exclusion is unreasonable. In particular, Petitioner notes that she has successfully completed a drug counseling program and no longer poses a threat to beneficiaries of federally funded health care programs.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
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  1. At all times relevant herein, Petitioner was a registered nurse licensed in the State of Texas. I.G. Exs. 2, 3, and 11; P. Ex. 1.
  2. During the period relevant to this case, Petitioner was employed as a registered nurse at the Rockport Care Center in Rockport, Texas. I.G. Exs. 2 and 3.
  3. On or about September 2, 1995, in the course of her employment as a nurse at the Rockport Care Center, Petitioner stole three tablets of Ritalin that had been prescribed for a nursing home patient who was a Medicaid recipient. I. G. Exs. 2, 3, 5, 6-9, 11.
  4. On September 20, 1996, Petitioner was indicted for possession of a controlled substance, Methylphenidate (Ritalin), a Class A criminal misdemeanor, in the County Court of Aransas County, Texas (Aransas County Court). I.G. Ex. 10.
  5. On October 28, 1997, Petitioner pled guilty to the charge of possession of a controlled substance, a criminal misdemeanor, in the Aransas County Court. I.G. Ex. 1.
  6. On October 28, 1997, after accepting Petitioner's guilty plea, the Aransas County Court deferred further proceedings without entering an adjudication of guilt, placed Petitioner on supervised probation for six months, assessed a $250 fine, ordered payment of $152 in court costs, and ordered her to perform 80 hours of community service. I.G. Ex. 1.
  7. 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.
  8. By letter dated May 29, 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.
  9. Petitioner's guilty plea in the Aransas County Court, and the Court's acceptance of that plea, constitute conviction of a criminal offense within the meaning of section 1128(i)(3) of the Act. FFCL 4-6.
  10. Petitioner agreed to participate in a deferred adjudication program whereby the Court withheld entry of a judgment of conviction while Petitioner satisfactorily completed a term of supervised probation. FFCL 6; I.G. Ex. 1.
  11. Petitioner's deferred adjudication constitutes a conviction of a criminal offense within the meaning of section 1128(i)(4) of the Act.
  12. Petitioner's criminal misdemeanor conviction for possession of a controlled substance is related to the delivery of a health care item or service under the Medicaid program within the meaning of section 1128(a)(1) of the Act. FFCL 2-6.
  13. 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.
  14. The Secretary of DHHS, has delegated to the I.G. the duty to determine and impose exclusions pursuant to section 1128(a)(1) of the Act.
  15. 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).
  16. 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, cannot be addressed in this forum.
  17. 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.
  18. 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.

 

ANALYSIS
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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.(3) In the instant case, Petitioner disputes that she was convicted of a criminal offense, asserting that there is no evidence that the criminal conviction relates to her. I find no merit in such claim.

The criminal conviction concerns an individual with the same name and personal circumstances as Petitioner. Moreover, in her request for hearing dated March 22, 1999, Petitioner concedes that such conviction relates to her. I also note that the record reflects that Petitioner entered a guilty plea on October 28, 1997. I.G. Ex. 1, at 1. Petitioner entered a plea of guilty to one count of possession of a controlled substance, in the Aransas County Court. The Aransas County Court accepted her plea. Petitioner's admissions are supported by the evidence adduced by the I.G. I.G. Ex. 1. Thus, Petitioner was convicted within the meaning of section 1128(i)(3) of the Act.

I further find that Petitioner's plea of guilty for possession of a controlled substance, which resulted in a deferred adjudication under Texas law, constitutes a conviction within the scope of section 1128(i)(4) of the Act. Other ALJs of the Departmental Appeals Board (DAB) have found that Congress intended to exclude from Medicare and Medicaid individuals who enter into first offender or deferred adjudication programs, and that such procedures constitute convictions within the meaning of section 1128(i)(4) of the Act. Benjamin Council, M.D., DAB CR391 (1995), at 7 (citing H.R. Rep. No. 727, 99th Cong., 2d Sess. 75, reprinted in 1986 U.S.C.C.A.N. 3607, 3665); Ann M. MacDonald, DAB CR519 (1998)(five-year exclusion upheld of nurse whose admissions were determined equivalent to a guilty plea, and whose case was ultimately dismissed upon completion of the conditions of her release); Krishan Kumar Batra, M.D., CR537 (1998). In Council, the petitioner pled guilty and was placed on probation as part of a deferred adjudication. In that case, the ALJ found that the petitioner had been convicted under section 1128(i)(4) of the Act. Similarly, Petitioner's plea of guilty in a deferred adjudication procedure whereby she was placed on probation, pending the successful completion of probationary requirements, constitutes a conviction under section 1128(i)(4).(4)

Next, it is required under section 1128(a)(1) of the Act that the crime at issue be related to the delivery of an item or service under Medicare or Medicaid. To determine if an offense is program-related, the ALJ must analyze the facts and circumstances underlying the conviction to determine whether a nexus or common sense connection links the offense for which the petitioner has been convicted with the delivery of an item or service under a covered program. Berton Siegel, D.O., DAB No. 1467 (1994); Krishan Kumar Batra, M.D., CR537 (1998). Petitioner need not be convicted of Medicaid fraud to be subject to exclusion under section 1128(a)(1) of the Act; instead it is sufficient if the delivery of a Medicaid item or service is an element in the chain of events giving rise to the offense. Donald Purcell, II, M.D., DAB CR572 (1999).

In Norman Barber, D.D.S., DAB CR123 (1991), an ALJ determined that it is consistent with Congressional intent to use extrinsic evidence to explain ambiguities in criminal complaints or pleas, and that such evidence is admissible to explain unstated but necessarily implied elements of the offense to which a party pleads. In the present case, the evidence of record reflects that Petitioner, a registered nurse employed in a nursing home, was convicted for the possession of a controlled substance.

Petitioner admitted in a sworn statement that while employed by a nursing home she stole Ritalin from a patient of the nursing home where she worked. I.G. Ex. 3. The record also reflects that the patient was a Medicaid recipient and that Medicaid paid for his medication. I.G. Exs. 7-9. Based on these facts, it is clear that a nexus exists between Petitioner's misconduct and the delivery of a Medicaid item or service.

Petitioner also contends that she should not be subject to an exclusion under section 1128(a)(1) of the Act because she was not informed in the criminal proceeding that she would be excluded from the Medicare/Medicaid programs as a result of her conviction. I reject this argument. It is well-settled 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). In Schram, the petitioner argued that because he was not given adequate notice concerning the consequences of his plea, his right to due process had been violated. The DAB 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. In essence, Petitioner's argument amounts to a collateral attack on her conviction, which the DAB previously has 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 No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter Edmondson, DAB No. 1330 (1992).

Petitioner also challenges the fairness of the exclusion proceedings in her case. She asserts that the Notice does not state with any particularity or clarity the offense for which Petitioner is being excluded. However, the Notice clearly states that Petitioner was subject to exclusion under section 1128(a)(1) of the Act, based upon her criminal conviction in Aransas County Court. Such statement is adequate notice of the grounds for exclusion. Moreover, under the briefing procedure Petitioner was afforded ample notice of the basis for exclusion and an opportunity to contest it.

Petitioner also asserts that it is unfair that her exclusion did not commence at the date of her criminal conviction and that the I.G. impermissibly delayed initiating such proceedings. I find no merit in such claim. The I.G. has discretion to determine when to impose an exclusion, and neither the statute nor the regulations set any specific deadline for the I.G. to act. Lawrence Wynn, DAB CR344 (1994); Chander Kachoria, DAB No. 1380 (1993). Petitioner made no showing that the timing of her exclusion or her receipt of the Notice made the length of her exclusion extreme or excessive. Kachoria, supra, at 10. Nor does an ALJ have the authority to change the effective date of an exclusion so that it runs concurrently with her probationary period, or to require the I.G. to notify an individual of an exclusion by a certain date. Stanley Karpo, D.P.M., DAB CR356 (1995), at 17; Kachoria, supra; Wynn, supra; Samuel W. Chang, M.D., DAB No. 1198 (1990).

Finally, Petitioner asserts that five-year exclusion under section 1128(a)(1) of the Act is not reasonable, as she was convicted of a misdemeanor, rather than a felony offense, but such term is the mandatory minimum term under that provision.(5)

CONCLUSION
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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.
JUDGE
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Joseph K. Riotto
Administrative Law Judge

FOOTNOTES
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  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. Petitioner submitted a motion for discovery on July 1, 1999, seeking all documentary or other evidence that the I.G. intended to introduce in this case. The I.G. filed a response in opposition to the motion on July 9, 1999. In its response, the I.G. contended that Petitioner bore the burden of showing that discovery should be allowed under 42 C.F.R. § 1005.7(e)(3), and that Petitioner would be afforded an opportunity to rebut any evidence the I.G. presented by submitting a reply brief, as provided for in my Order dated June 22, 1999. After the parties submitted briefs and documentary evidence in this case, I granted Petitioner's request to file a reply brief on September 13, 1999. Petitioner filed a reply brief on October 4, 1999, after having ample opportunity to review the I.G.'s brief and documentary evidence attached thereto. Accordingly, Petitioner's motion is denied as moot.
  3. Petitioner asserts that "no . . . evidence shows that Petitioner, if she committed any offense, committed any such offense prior to the effective date of the statute under which the government is proceeding." Petitioner's Brief (P. Br.) at 1. It is unclear whether Petitioner challenges the applicability of section 1128(a)(1) of the Act to her case.
  4. Petitioner asserts that "no . . . evidence shows that Petitioner was on probation at the time the Inspector General's letter of exclusion was mailed to or received by Petitioner." P. Br. at 1. The statute requires only that Petitioner has been convicted, as I have found, of a relevant offense. There is no requirement that she must be on probation at the time the I.G. initiates exclusion proceedings.
  5. Petitioner asserts that "no . . . evidence shows that Petitioner was on probation at the time the Inspector General's letter of exclusion was mailed to or received by Petitioner." P. Br. at 1. The statute requires only that Petitioner has been convicted, as I have found, of a relevant offense. There is no requirement that she must be on probation at the time the I.G. initiates exclusion proceedings.

 

CASE | DECISION | APPLICABLE LAW | FINDINGS OF FACT AND CONCLUSIONS OF LAW | ANALYSIS | CONCLUSION | JUDGE | FOOTNOTES