SUBJECT:

Jayne Hoffman,

Petitioner,

The Inspector General

DECISION

By letter dated December 30, 1999, the Inspector General (I.G.) of the United States Department of Health and Human Services (DHHS) notified Petitioner that she was being 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 10 years. The I.G. informed Petitioner that this action was taken under section 1128(a)(1) of the Act because of her conviction in the United States District Court, Northern District of Georgia, Atlanta Division (District Court), of a criminal offense related to the delivery of an item or service under the Medicaid program.

The I.G. imposed an exclusion period greater than five years pursuant to 42 C.F.R. §§1001.102(b)(1), (2), (5), and (6) and based on the following findings of the District Court:

(1) the federal court ordered Petitioner, jointly and severally with Dr. Mark Hoffman, to pay restitution of approximately $32,000 to the Medicaid program;

(2) the court determined that the acts were committed during the period of September 13, 1994 to on or about September 29, 1997;

(3) Petitioner was sentenced to home confinement for a period of six months; and

(4) Petitioner surrendered her license to practice as a nurse to the Georgia Board of Nursing on March 4, 1999.

Before this case was assigned to me it was assigned to Administrative Law Judge Joseph K. Riotto. He discussed the case with the parties in a March 21, 2000 telephone prehearing conference, which he subsequently memorialized in an Order dated April 13, 2000. During the telephone conference, the parties agreed that this case could be decided based on written submissions and a schedule was established for the parties to file briefs and documentary evidence.

The I.G. filed a brief (I.G. Br.) and submitted five proposed exhibits. These have been identified as I.G. Exs. 1 - 5. Petitioner filed a brief (P. Br.) and submitted eight proposed exhibits. These have been identified as P. Exs. 1 - 8. Neither party objected to the other parties' submissions. In the absence of objection, I am admitting I.G. Exs. 1 - 5 and P. Exs. 1 - 8 into evidence.

I grant the I.G.'s motion for summary disposition and I am sustaining the I.G.'s determination to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs for a period of 10 years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties.

I. Issues

The issues in this case are:

• Whether the I.G. is authorized to exclude from Medicare, Medicaid, and all federal health care programs pursuant to Section 1128(a)(1) of the Act; and



• Whether the length of the exclusion imposed and directed against Petitioner by the I.G. is unreasonable.

II. Applicable Law and Regulations

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 item or service under Medicare and Medicaid to be excluded from participation in such programs for a period of at least five years. 42 C.F.R. § 1001.102(b) contains factors that may be considered to be aggravating and authorizes the I.G. to consider such as a basis for lengthening the period of an exclusion. 42 C.F.R. § 1001.102(c) contains factors that may be considered to be mitigating and authorizes the I.G. to consider such as a basis for reducing the period of an exclusion.⁽¹⁾

III. Findings of Fact and Conclusions of Law

1. During the period relevant to this case, Petitioner was licensed to practice nursing in the State of Georgia. I.G. Ex. 4.

2. On February 11, 1999, Petitioner was charged, along with Mark D. Hoffman, in a Criminal Information of knowingly and willfully making, and causing to be made, false statements and representations of material fact in applications for payment under the State of Georgia Medicaid and Medicare programs, in violation of Title 42, United States Code, Section 1320a-7b, and Title 18, United States Code, Section 2. I.G. Ex. 1.

3. On February 25, 1999, in the United States District Court, Northern District of Georgia, Atlanta Division, Petitioner pleaded guilty to the Criminal Information. I.G. Ex. 2.

4. On March 10, 1999, Petitioner surrendered her license to the Georgia Board of Nursing and to the Department of Professional Regulation in Illinois. I.G. Ex. 4; P. Ex. 6.

5. Petitioner's conviction was related to the delivery of an item or service under the Medicaid program. I.G. Ex. 5.

6. On June 10, 1999, Petitioner was sentenced to home confinement, probation, community service and to pay restitution, a special assessment, and a fine. I.G. Ex. 3; I.G. Ex. 5; P. Ex. 7; P. Br. at 10.

7. The Secretary of DHHS has delegated to the I.G. the authority to determine and impose exclusions pursuant to section 1128(a)(1) of the Act.

8. On December 30, 1999, the I.G. notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all federal health care programs for a period of 10 years pursuant to section 1128(a)(1) of the Act. I.G. Ex. 5.

9. Aggravating factors are present, which warrant increasing the exclusion for more than five years. See 42 C.F.R. § 1001.102(b).

10. There were no established mitigating factors present.

11. I am upholding the 10-year exclusion.

IV. Discussion

Section 1128(a)(1) requires that the Secretary of Health and Human Services (Secretary) exclude an individual who has been convicted under federal or State law of a criminal offense related to the delivery of an item or service under Medicare or a State health care program.⁽²⁾ 42 C.F.R. § 1001.101. Individuals excluded under section 1128(a)(1) of the Act must be excluded for a period of not less than five years. Act, section 1128(c)(3)(B). The mandatory minimum period of exclusion may be increased with the existence of aggravating factors that are not offset by any mitigating factors. 42 C.F.R. § 1001.102.

The following factors may serve as a basis for lengthening the period of exclusion:

•the acts resulting in the conviction, or similar acts, resulted in a financial loss to a government program or to one or more entities of $1,500 or more. (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)(42 C.F.R. §1001.102(b)(1));

•the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more (42 C.F.R. §1001.102(b)(2));

•the 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 (42 C.F.R. §1001.102(b)(3));

•in convictions involving patient abuse or neglect, the action that resulted in the conviction was premeditated, was part of a continuing pattern of behavior, or consisted of non-consensual sexual acts (42 C.F.R.

§ 1001.102(b)(4));

• the sentence imposed by the court included incarceration (42 C.F.R. § 1001.102(b)(5));



• the convicted individual or entity has a prior criminal, civil, or administrative sanction record (42 C.F.R. § 1001.102(b)(6));



• the individual or entity has at any time been overpaid a total of $1,500 or more by Medicare, Medicaid or any other federal health care programs as a result of intentional improper billings (42 C.F.R. § 1001.102(b)(7));



• the individual or entity has previously been convicted of a criminal offense involving the same or similar circumstances (42 C.F.R. § 1001.102(b)(8)); or



• 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 in the same set of circumstances that serves as the basis for imposition of the exclusion.

The Secretary has delegated to the I.G. the authority to impose exclusions. 42 C.F.R. § 1001.401(a). As long as the length of the exclusion imposed on Petitioner by the I.G. is within a reasonable range, based on demonstrated criteria, I have no authority to change it. Joann Fletcher Cash, DAB No. 1725, at 7 (2000) (citing 57 Fed. Reg. 3298, 3321 (1992)).

A. Petitioner was convicted of program-related crimes, within the meaning of section 1128(a)(1) of the Act.

Petitioner was convicted under federal law of criminal offenses related to the delivery of an item or service under the Medicaid and Medicare programs. I.G. Ex.1; I.G. Ex. 5. Petitioner has admitted her guilt. I.G. Ex. 2; P. Br. at 6. Section 1128(a)(1) of the Act applies to any individual or entity convicted of a criminal offense that is related to the delivery of an item or service under Medicare or any State health care program.

The record reflects that Petitioner knowingly and willfully made, and caused to be made, false statements and representations of material fact in applications for payment under the Medicaid and Medicare programs. I.G. Ex. 1. As a result of Petitioner's false claim submissions, she received monies from the Medicaid program to which she was not entitled. I.G. Ex. 3. The filing of fraudulent Medicare or Medicaid claims constitutes program-related misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996); Rasaly Saba Khalil, M.D., DAB CR353 (1995). I find that Petitioner's conviction, as described above, is for crimes that are program-related, within the meaning of section 1128(a)(1) of the Act. Nevertheless, in her submissions to this tribunal, Petitioner seems to suggest that her problems were a result of her dysfunctional childhood and mistreatment by her husband. P. Ex. 1.

This is not an appropriate forum for relitigating Petitioner's criminal convictions. The regulations state:

[w]hen the exclusion is based on the existence of a conviction . . . the basis for the underlying determination is not reviewable and the individual or entity may not collaterally attack the underlying determination, either on substantive or procedural grounds, in this appeal.

42 C.F.R. §1001.2007(d); see also Joann Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, R. Ph., DAB No. 1380, at 8 (1993).

Section 1128(a)(1) of the Act mandates that the I.G. exclude any individual or entity convicted of an offense which is related to the delivery of an item or service under Medicare or any State health care program. The I.G. must exclude Petitioner, inasmuch as Petitioner was convicted of such offenses.

B. The I.G. has demonstrated the existence of aggravating factors.

I find that the I.G.'s determination to extend Petitioner's exclusion beyond the minimum 5 years to a 10-year term of exclusion was appropriate. The evidence shows that at least four of the aggravating factors are present and have been conceded by Petitioner. The mitigating factors Petitioner asserts are not supported by the District Court's final action. I.G. Exs. 1 and 2; P. Exs. 6 and 7; P. Br. at 19.

By regulation, the Secretary established the criteria for determining the length of exclusions imposed pursuant to section 1128 of the Act. 42 C.F.R. § 1001.102 lists the aggravating and mitigating factors applicable to a section 1128(a) exclusion. The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory five-year period of exclusion. Evidence that does not pertain to one of the specific aggravating or mitigating factors is not relevant and may not be used to decide whether an exclusion of a particular length is reasonable.

1. The acts which were the basis for Petitioner's conviction resulted in a loss to the State health care program of more than $1,500. 42 C.F.R. § 1001.102(b)(1).

Petitioner does not dispute that the acts which serve as the basis for her conviction resulted in a financial loss to the Medicaid and Medicare programs of more than $1,500. P. Br. at 10. Pursuant to Petitioner's Plea Agreement, Petitioner's sentence included restitution in the amount of approximately $115,000 of the $747,800 total restitution, the balance of which was attributed to her co-defendant. I.G. Ex. 2; P. Br. at 10. Approximately $32,000 was paid to the Medicaid program. Id. As demonstrated by the amount of restitution ordered, Petitioner's criminal acts clearly resulted in a financial loss to the Medicaid and Medicare programs of more than $1,500.

2. The acts resulting in Petitioner's conviction, or similar acts, were committed over a period of one year or more. 42 C.F.R. § 1001.102(b)(2).

Petitioner does not challenge that this aggravating factor is applicable. P. Br. at 2, 6. In fact, the record reflects that Petitioner pleaded guilty to criminal acts covering a period from on or before September 13, 1994 until on or about September 29, 1997, a period of more than one year. I.G. Ex. 1.

3. Petitioner's sentence for her crimes included a period of incarceration. 42 C.F.R. § 1001.102(b)(5).

Petitioner was sentenced to home confinement for a period of six months beginning September 1, 1999, probation for a term of two years, and 500 hours of community service. P. Ex. 7; see P. Br. at 11. While Petitioner argues that she was "free to come and go as she pleased within the Northern District of Georgia during daylight hours as long as she logged in her whereabouts," I find that Petitioner's sentence is well within the definition of "incarceration." Id.

4. Petitioner surrendered her license to practice as a nurse to the Georgia Board of Nursing. 42 C.F.R. § 1001.102(b)(6).

On March 10, 1999, Petitioner tendered her license to the Georgia Board of Nursing. P. Ex. 6. By a document dated June 5, 2000, Petitioner was found to be in violation of the Nursing and Advanced Practice Nursing Act and was given an administrative warning. P. Ex. 5. I find that this is well within the definition of a prior administrative sanction.

5. Petitioner was overpaid a total of $1,500 or more by the State health care program as a result of intentional improper billings. 42 C.F.R. § 1001.102(b)(7).

Petitioner admits having engaged in illegal billing activities which were carried out while she was the office manager in her husband's practice. What she does argue is that the illegal billing activities were a direct result of her ignorance of billing procedures and her husband's tyrannical behavior. P. Br. at 4. However horrendous Petitioner's work environment was, the fact remains that she knowingly submitted inaccurate information to the Medicaid and Medicare programs in order to profit. I.G. Ex. 1; I.G. Ex. 2; P. Ex. 7. Hence, Petitioner was ordered to pay restitution.

D. Petitioner did not establish the presence of any mitigating factors.

Petitioner alleges that the record in the criminal proceedings, including the sentencing documents, demonstrates that the court determined that she had a mental, emotional or physical condition before or during the commission of the offense that reduced her culpability. Therefore, Petitioner is asserting that a mitigating factor, as delineated at 42 C.F.R. §1001.102(c)(2), has been established. Based on the evidence before me, I do not find that the record reflects this conclusion. Unless the District Court made an explicit finding on the record that mitigating factors exist, their weight or merit is irrelevant. Therefore, this contention is not relevant to the issue of whether the length of the exclusion is unreasonable.

E. A 10-year exclusion is not unreasonable.

The evidence relating to the established aggravating factors demonstrates that Petitioner is untrustworthy. I did not find any mitigating factors to compensate for the aggravating factors. The 10-year exclusion is not unreasonable based on such evidence.

IV. Conclusion

I find that the I.G. was authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act. I find that a 10-year exclusion is reasonable.

Richard J. Smith

Administrative Law Judge

1. Effective October 1, 2000, Title 42 of the Code of Federal Regulations was revised. In this matter, the controlling regulatory provisions are those on effect prior to October 2000, i.e., the version in effect at the time of the I.G.'s notice of exclusion dated December 30, 1999. See Robert Alan Spriggs, R.P.T., DAB CR718 (2000).

2. The term "State health care program" includes a State's Medicaid program. Section 1128(h)(1) of the Act; 42 U.S.C. § 1320a-7(h)(1).