CASE | DECISION | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Carlos Rivera-Cruz,

Petitioner,

DATE: June 23, 2000
                                          
             - v -

 

The Inspector General

 

Docket No.C-00-185
Decision No. CR677
DECISION
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By letter dated November 30, 1999, Carlos Rivera-Cruz, M.D., the Petitioner herein, was notified by the Inspector General (I.G.), U.S. Department of Health and Human Services (H.H.S.), that it had been decided to exclude him for a period of five years from participation in the Medicare, Medicaid, Maternal and Child Services Block grant, and Block Grant to States for Social Services programs.(1) The I.G. explained that the five- year exclusion was mandatory under section 1128(a)(1) of the Social Security Act (Act) because Petitioner had been convicted, in the United States District Court for the District of Puerto Rico, of a criminal offense in connection with the delivery of a health care item or service under the Medicaid program.

On December 20, 1999, 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. Both parties submitted briefs in this matter. The I.G. submitted four proposed exhibits (I.G. Exs. 1-4). Petitioner did not object to these exhibits and I accept them 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 and Medicaid programs for a period of five years.

APPLICABLE LAW

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 a health care item or service under Medicare or Medicaid to be excluded from participation in such programs for a period of at least five years.

PETITIONER'S ARGUMENTS

Petitioner contends that his exclusion from participation in the Medicare and Medicaid programs constitutes double jeopardy as he has already been punished in the criminal proceeding. He further asserts that such exclusion effectively precludes his employment as a physician as most of his patients are Medicare or Medicaid recipients. He also notes that he was permitted to practice as a physician after his criminal conviction but before his exclusion by the I.G. and he contends that his good record during this time shows that he is rehabilitated. He also maintains that such facts show that his exclusion is not remedial but punitive. In the alternative, Petitioner requests that, if his exclusion is upheld, he be permitted to practice during the five-year exclusion under the supervision of the government.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

  • During the period relevant to this case, Petitioner was a medical doctor licensed to practice in the Commonwealth of Puerto Rico.


  • On November 15, 1995, an Indictment was filed in the United States District Court for the District of Puerto Rico charging Petitioner with knowingly, wilfully, and unlawfully making or causing to be made a false statement or representation of a material fact in an application for payment under Medicare or Medicaid in that Petitioner certified to Medicare that a patient was unable to swallow and was receiving enteral nutrition therapy through a gatrostomy tube, when in truth and in fact, and as Petitioner then well knew, such statement was false. I.G. Ex. 4.


  • In July 1996, Petitioner entered a plea of guilty to the charge contained in the November 15, 1995 indictment. I.G. Ex. 2.


  • On November 25, 1996, judgment was entered against Petitioner for the charge contained in the November 15, 1995 indictment.


  • As a result of his conviction, Petitioner was ordered to pay a special assessment of $50; was placed on probation for three years under specific terms and conditions, including performing 300 hours of community service as a medical doctor; was assessed a fine of $10,000; and was ordered to pay restitution of $48,240 to the United States Government. I.G. Ex. 3.


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


  • Petitioner's conviction for Medicare fraud 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.


  • 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.


  • 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. The record reflects that a judgment of conviction was entered in Petitioner's case and he was sentenced by the United States District Court. This judgment was based upon the court's acceptance of Petitioner's guilty plea on November 25, 1996. 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 Petitioner, in pleading guilty to the indictment, admitted to filing, or causing to be filed, claims against Medicare that were false. The filing of fraudulent Medicare and Medicaid claims consistently has 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 a 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 health care items or services under Medicare because the falsified claims leading to Petitioner's conviction resulted in receipt of fraudulent Medicare 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 offenses and the delivery of health care items or services is firmly established by his guilty plea to the charge contained in the indictment.

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 Elizabeth Hunter, R.N., DAB CR505 (1997).

Petitioner also claims that his exclusion constitutes double jeopardy. I find no merit in such claim. Petitioner's exclusion was imposed to protect program beneficiaries from future misconduct by him, a provider who has proven himself to be untrustworthy based on his conviction for a program-related crime, not to punish him. See Paul Karsch, DAB CR454 (1997). Federal Courts, Board administrative law judges, and appellate panels have held consistently that exclusions imposed pursuant to section 1128 are remedial in nature and do not violate the Double Jeopardy clause. Barry D. Garfinkel, M.D., DAB CR400 (1995), rev'd in part, DAB No. 1572 (1996); see Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); Francis Shaenboen, R.Ph., DAB CR97 (1990), aff'd, DAB No. 1249 (1991).

Finally Petitioner asserts that he should be permitted to practice medicine as he did for the period after his criminal conviction and before notice of his exclusion in 1999. It is clear however that the I.G. has the discretion to determine when to impose an exclusion. Laurence Wynn, M.D., DAB CR344 (1994). Neither the statute nor the implementing regulations set any specific deadline for the I.G. to act. Chander Kachoria, R.Ph., DAB CR220 (1992), aff'd, DAB No. 1380 (1993). The DAB has held that the ALJ does not have the power to change the commencement date of an exclusion. Samuel W. Chang, M.D., DAB CR74 (1990), aff'd, DAB No. 1198 (1990).

CONCLUSION

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner herein be excluded from the Medicare and Medicaid programs for a period of at least five years based upon his conviction for a criminal offense related to the delivery of a health care item or service under the Medicaid program. The five-year exclusion is therefore sustained.

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 refer to these State health care programs.

CASE | DECISION | JUDGE | FOOTNOTES