CASE | DECISION | JUDGE

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


SUBJECT:

Carolyn Joyce Watson McKinney,

Petitioner,

DATE: December 17, 2001
                                          
             - v -

 

The Inspector General

 

Docket No.C-01-725
Decision No. CR849
DECISION
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DECISION

I decide that the arguments which Petitioner, Carolyn Joyce Watson McKinney, made to challenge the reasonableness of a 15-year exclusion that the Inspector General (I.G.) imposed against her pursuant to section 1128(a)(1) of the Social Security Act (Act) are rendered moot by her previous agreement to be excluded permanently pursuant to section 1128(b)(7) of the Act. Therefore, Petitioner's hearing request raises no issues that I may hear and decide. I dismiss Petitioner's hearing request pursuant to 42 C.F.R. § 1005.2(e)(4), because I conclude that Petitioner has not raised any issue which properly may be addressed in a hearing.

I. Background

A. Procedural history

On March 30, 2001, the Inspector General (I.G.) notified Petitioner that she was being excluded from participating in Medicare and other federally funded health care programs for a period of 15 years. The I.G. told Petitioner that she was being excluded pursuant to section 1128(a)(1) of the Act based on Petitioner's conviction of a criminal offense related to the delivery of an item or service under Medicare or a State Medicaid program.

Petitioner requested a hearing. The case was assigned to me for a hearing and a decision. I held a pre-hearing conference at which the parties agreed to make written submissions of their cases in lieu of an in-person hearing. At that pre-hearing conference, I advised the parties that I thought Petitioner's arguments might be moot and I advised them to brief that issue.

The parties each submitted briefs. The I.G. submitted four exhibits along with her brief (I.G. Ex. 1 - I.G. Ex. 4). Petitioner did not submit exhibits. Petitioner did not object to my receiving the I.G.'s exhibits into evidence and, therefore, I receive them.

B. Undisputed facts

The facts that I recite in this part are not disputed. On January 18, 2000, a criminal indictment was issued against Petitioner in the United States District Court for the Southern District of Texas, Houston Division. I.G. Ex. 2. The indictment alleges that Petitioner, along with another individual, conspired and executed a scheme against the United States to defraud Medicare and the Texas Medicaid program by making false statements and by submitting false, fraudulent, and fictitious reimbursement claims to these programs. Id. at 1. Count One of the indictment describes the fraudulent scheme. Id. at 1 - 9. Counts Two through Fifteen allege specific fraudulent claims for services. Id. at 10 - 11.

On May 30, 2000, Petitioner entered into a plea agreement. I.G. Ex. 3. The plea agreement was signed by Petitioner, her attorney, and, on behalf of the United States, by an Assistant United States Attorney. Id. at 13 - 14. Petitioner agreed to plead guilty to Count Eight of the indictment. Id. at 1; see I.G. Ex. 2 at 1 - 7, 10 - 11. At Paragraph 20 of the plea agreement, Petitioner also agreed that:

In compromise and settlement of the rights of . . . [the I.G.] to exclude . . . [Petitioner] pursuant to 42 U.S.C. § 1320a-7(b)(7), . . . [Petitioner] agrees to be permanently excluded from participation in the Medicare, Medicaid and all Federal health care programs . . . Such exclusion will be implemented in accordance with the authority contained in section 1128 of the . . . [Act]. . . This period is to commence on the filing date of this Plea Agreement and . . . [Petitioner] waives any further notice of the exclusion. . . [Petitioner] agrees not to contest such exclusion either administratively or in any State or Federal court.

Id. at 10.

Judgment was entered against Petitioner on November 1, 2000. I.G. Ex. 4. The Judgment makes no specific reference to Petitioner's plea agreement. However, it recites that Petitioner pled guilty to Count Eight of the indictment on May 30, 2000. Id. at 1. Count Eight is the count to which Petitioner agreed to plead guilty. See I.G. Ex. 3 at 1. May 30, 2000 is the date of the plea agreement. See id.

II. Issue, findings of fact and conclusions of law

A. Issue

The issue in this case is whether Petitioner's agreement to be excluded permanently pursuant to section 1128(b)(7) of the Act renders moot her request for a hearing to challenge the 15-year exclusion that the I.G. imposed pursuant to section 1128(a)(1) of the Act.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. These are set forth below as separately numbered headings. I discuss each Finding in detail.

1. Petitioner is excluded permanently pursuant to section 1128(b)(7) of the Act.

In her plea agreement, at Paragraph 20, Petitioner agreed to be excluded permanently pursuant to section 1128(b)(7) of the Act. The language of that agreement is explicit. It contains no ambiguities. It provides for exclusion to be made effective on the filing date of the plea agreement without further notice to Petitioner. Petitioner made no showing that the agreement has at any time been rescinded. The exclusion pursuant to section 1128(b)(7) was not superseded by the I.G.'s subsequent exclusion of Petitioner pursuant to section 1128(a)(1) of the Act. Therefore, Petitioner remains excluded permanently pursuant to section 1128(b)(7).

Section 1128(b)(7) authorizes the Secretary of the United States Department of Health and Human Services (or his delegate, the I.G.) to exclude any individual or entity who has committed an act which is described at sections 1128A, 1128B, or 1129 of the Act. Section 1128A establishes penalties for, among other things, the filing of false and fraudulent claims. By contrast, section 1128(a)(1) of the Act, which is the basis for the I.G.'s more recent 15-year exclusion of Petitioner, mandates the exclusion of any individual who has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a State Medicaid program. The two sections (1128(b)(7) and 1128(a)(1)) obviously address very similar, but not necessarily identical, conduct. The principal difference between them is that under (a)(1) an exclusion is mandated only if there is a conviction for program fraud, whereas under (b)(7) an exclusion is permitted without a conviction where the I.G. can establish conduct in the nature of program fraud.

I asked the parties to brief the question of the effect of Petitioner's plea agreement on Petitioner's right to a hearing in this case. The I.G. argued that Petitioner was excluded permanently pursuant to section 1128(b)(7) regardless of any findings that I might make concerning the exclusion that was imposed pursuant to section 1128(a)(1). The I.G. contended that, as a consequence of the permanent 1128(b)(7) exclusion, Petitioner had no basis with which to challenge the subsequently imposed 1128(a)(1) exclusion. Petitioner offered no argument concerning that issue. I take Petitioner's silence as an admission that she entered into a binding agreement with the United States which included a provision that she be excluded permanently pursuant to section 1128(b)(7) of the Act.

I do not find that the I.G.'s notice to Petitioner informing Petitioner of a 15-year exclusion pursuant to section 1128(a)(1) supersedes or replaces Petitioner's previous agreement to accept a permanent exclusion pursuant to section 1128(b)(7). The I.G. has not explained why she elected to impose a second exclusion. I infer that the I.G. felt that she had no choice but to impose the second exclusion under section 1128(a)(1) because that exclusion was mandated by Petitioner's conviction of a program related criminal offense. That is not to suggest, however, that the I.G. intended to rescind the 1128(b)(7) exclusion that was imposed pursuant to Petitioner's plea agreement. Moreover, the I.G. makes it clear in her brief that she has not rescinded the (b)(7) exclusion. I.G.'s brief at 10.

2. Petitioner has not challenged the exclusion that was imposed pursuant to section 1128(b)(7) of the Act and I have no authority to decide whether it is authorized or reasonable.

Petitioner did not request a hearing to challenge the exclusion that she agreed to accept pursuant to section 1128(b)(7) of the Act. She is not at this time arguing that the exclusion under section 1128(b)(7) was unauthorized or that it is unreasonable. Therefore, I have no authority to decide whether Petitioner's exclusion under section 1128(b)(7) was authorized or is unreasonable.

3. The issue of reasonableness of the 15-year exclusion that the I.G. imposed pursuant to section 1128(a)(1) is made moot by the preexisting permanent exclusion of Petitioner imposed pursuant to section 1128(b)(7).

In her brief, Petitioner argues that the 15-year exclusion that the I.G. imposed against her is excessive and unreasonable. However, the issue of whether that exclusion is unreasonable is moot. Petitioner was excluded permanently pursuant to section 1128(b)(7) of the Act and has not challenged that exclusion. Petitioner would remain excluded permanently even if I were to find to be unreasonable that portion of the exclusion that the I.G. imposed under section 1128(a)(1) which exceeds the five-year minimum mandatory period for exclusions that are imposed under that section. See Act, section 1128(c)(3)(B).

4. Petitioner's hearing request has not raised any issue that I properly may hear and decide. Consequently, it is appropriate to dismiss the hearing request.

I dismiss Petitioner's hearing request pursuant to 42 C.F.R. § 1005.2(b)(4). Petitioner has not raised any issue that I may properly hear and decide. The only issue raised by Petitioner in this case is whether the 15-year exclusion that the I.G. imposed pursuant to section 1128(a)(1) of the Act is unreasonable. However, that issue is moot.

JUDGE
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Steven T. Kessel

Administrative Law Judge

 

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