SUBJECT: Tanya A. Chouke, R.N.,

Petitioner,

The Inspector General

DECISION ON REMAND

This case is before me on remand from an appellate panel of the Departmental Appeals Board (DAB). By Order dated April 10, 2000, the appellate panel remanded this case with instructions to reopen the record for the purpose of receiving a submission of supplemental evidence concerning a material fact in dispute; whether or not Petitioner's criminal conviction was for an offense related to the delivery of an item or service under Medicaid. I was directed to reconsider the entire record in light of any supplemental submissions.

I have reconsidered this case in accordance with the appellate panel's instructions. I deny Petitioner's motion to dismiss and sustain the determination of the Inspector General (I.G.) to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of five years.

I. Background

Petitioner requested a hearing before the Civil Remedies Division (CRD) disputing a May 29, 1998 determination by I.G. to exclude her from participation in Medicare, Medicaid, and all federal health care programs for a period of five years pursuant to section 1128 (a)(1) of the Social Security Act (Act). The I.G. advised that the exclusion was due to Petitioner's conviction, as defined in section 1128(i) of the Act, in the County Court, Aransas County, Texas, of a criminal offense related to the delivery of an item or service under the Medicaid program.

On December 14, 1999, a decision was issued by Administrative Law Judge (ALJ) Joseph Riotto (previously assigned to this case) in which he affirmed the I.G.'s determination to exclude Petitioner from participation in Medicare and Medicaid for a period of five years. Tanya A. Chuoke, R.N., DAB CR633 (1999). Judge Riotto determined that the I.G. had the authority to exclude Petitioner under section 1128(a)(1) of the Act because of Petitioner's conviction of a criminal offense related to the delivery of an item or service under the Medicaid program. Judge Riotto's determination to decide this matter upon written submissions only was based upon his determination that no material factual issues were in dispute. See Order dated June 22, 1999, at 2. Accordingly, based upon the written submissions, Judge Riotto concluded that the five-year exclusion imposed by the I.G. was reasonable, and therefore granted the I.G.'s motion for summary disposition.

Petitioner appealed the decision to an appellate panel of the Departmental Appeals Board (DAB). On appeal, Petitioner argued, among other things, that there was no evidence in the record which established that Petitioner's conviction was related to the delivery of a health care item or service under Medicaid. Petitioner further asserted that the ALJ erred in his assumption that Petitioner's conviction was for the same offense as the written admission and the indictment. Thus, Petitioner concluded that the I.G. had failed to show a connection between the conviction and a program-related health care service, which is a required element under section 1128(a)(1) of the Act. Finally, Petitioner argued that the length of the exclusion was unreasonable asserting that: 1) she was never convicted of a felony; and 2) based upon government error, the exclusion commencement date was unfairly delayed.

On April 10, 2000, the appellate panel issued its decision. Tanya A. Chuoke, R.N., DAB No. 1721 (2000). Pursuant to 42 C.F.R. § 1005.21(f), an appellate panel is authorized to remand a case to the ALJ to consider evidence not presented at hearing if a party successfully demonstrates that such evidence is material and relevant and that there were reasonable grounds why such information was not previously presented before the ALJ.

The appellate panel found that "the ALJ erred in granting summary disposition, because Petitioner raised a genuine issue of material fact as to whether the specific conviction on which the I.G. relied related to the program-related misconduct to which Petitioner admitted and for which she was indicted." Chuoke, DAB No. 1721, at 1. Accordingly, the case was remanded to the CRD for further proceedings on an issue of material fact. Specifically, the appellate panel instructed that the record be reopened and further evidence be received on the question of whether a sufficient nexus existed between Petitioner's conviction and the delivery of a health care item or service, such that the offense could be tied to the delivery of an item or service under Medicaid. The ALJ was instructed to, among other things, "permit additional documentary submissions as necessary to create a sound record on which to resolve the factual dispute." Id., at 11. The appellate panel ascertained that, based upon the evidence presented by the I.G. in support of the exclusion, "the content of the indictment cannot demonstrate by itself that a later conviction resulted from that particular indictment and no other, without more. The I.G. did not offer anything more to show that the conviction in the record was tied to the indictment or the events that led to the indictment." Id., at 7.

On May 3, 2001, this case was reassigned to me for hearing and decision. On May 24, 2001, I issued an Order reopening the record for supplemental briefing in accordance with the appellate panel's instructions. Specifically, I established a briefing schedule to afford the parties the opportunity to submit supplemental documentation and express their respective arguments on the issues before me on remand. On August 29, 2001, the I.G. requested a 60-day extension of time in which to file her supplemental submission. On the same day, Petitioner filed a Motion to Dismiss and Opposition to the I.G.'s Motion for Extension of Time. At issue in Petitioner's Motion to Dismiss was the timeliness of the I.G.'s response to the my Order for evidentiary supplementation. In ruling on the I.G.'s request for an extension, I weighed a number of factors: 1) whether receipt of the May 24^th Order by the I.G. could be satisfactorily demonstrated; 2) whether the change of I.G. counsel on this matter during the period at issue adversely affected the progression of this case; 3) whether an extension would unduly prejudice or delay Petitioner's opportunity to fully present her case; and 4) whether a delay would be in the best interest and for the protection of the Medicare and Medicaid programs and their intended beneficiaries. In light of the totality of the circumstances, in an Order dated September 17, 2001, I determined that granting the I.G. a brief extension of five days would not be unreasonable. In the same Order, I also established a deadline for the I.G.'s response to Petitioner's Motion to Dismiss. On September 25, 2001, the I.G. filed her supplemental brief in support of exclusion, along with 13 proposed supplemental exhibits (I.G. Supp. Exs. 1-13). The I.G. subsequently filed her opposition to Petitioner's motion to dismiss on September 28, 2001. On October 11, 2001, Petitioner filed her replies to the I.G.'s supplemental brief and the I.G.'s opposition to Petitioner's motion to dismiss. Petitioner did not object to my receiving into evidence the I.G.'s proposed supplemental exhibits and, therefore, I receive into evidence I.G. Supp. Exs. 1-13.⁽¹⁾

I have considered the issues before me on remand based upon the entire record before me, and I conclude that the evidence does establish that Petitioner's conviction was related to the delivery of a health care item or service in accordance with section 1128(a)(1) of the Act. I further find that the five-year exclusion imposed by the I.G. is reasonable and, therefore, I sustain the I.G.'s determination to impose the exclusion.

II. Findings of fact and Conclusions of Law (FFCL)

Judge Riotto's December 14, 1999 decision was based on 18 FFCLs set forth at pages 4-6 of the decision. On appeal, Petitioner took exception to FFCLs 4, 9, 11, 12, 15, and 18. Since Petitioner did not take exception to the remaining FFCLs, the appellate panel affirmed them without further discussion. Upon consideration of the parties' arguments pertaining to the FFCLs to which Petitioner took exception, the appellate panel affirmed FFCLs 9 and 11 and vacated FFCLs 4, 12, 15, and 18. Accordingly, based upon the appellate panel's affirmance of these FFCLs, I incorporate FFCLs 1-3, 5-11, 13-14, and 16-17 into this decision. The appellate panel remanded the case and directed "the ALJ to reopen the record and receive further evidence" as to FFCLs 4, 12, 15, and 18. Chuoke, DAB No. 1721, at 11.

On remand, I amend FFCL 4 to read:

4. On September 20, 1996, Petitioner was indicted for possession of a controlled substance, Methylphenidate (Ritalin), a Class A criminal Misdemeanor, in the District Court of Aransas County, Texas (District Court). In October 1996, the case was transferred to the County Court of Aransas County, Texas (County Court), where, based upon Texas law, the District Court indictment was converted to a County Court information, although maintaining the legal substance of the original indictment. I.G. Supp. Exs. 1-4.

I amend FFCL 12 to read:

12. The I.G. has demonstrated that Petitioner's criminal misdemeanor conviction for possession of a controlled substance is related to the delivery of an item or service under the Medicaid program within the meaning of section 1128(a)(1) of the Act.

I amend FFCL 15 to read:

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 the regulations codified at 42 C.F.R. § 1001.102(a).

Finally, I amend FFCL 18 to read:

18. The I.G. properly excluded Petitioner pursuant to section 1128(a)(1) of the Act for a period of five years.

III. Discussion

In her Motion to Dismiss (P. Br.), Petitioner asserts that at no time during the entirety of these proceedings did the I.G. present any evidence into the record that shows that Petitioner's conviction was related to the delivery of a health care service. P. Br. at 1-2. Specifically, Petitioner attacks the accuracy of the judgment instrument itself. Petitioner asserts that the language in the judgment is inconsistent with the I.G.'s asserted basis for exclusion. Specifically, Petitioner states that the judgment indicates that Petitioner was charged by information and not tried by indictment, as advanced throughout by the I.G. Petitioner's Reply (P. Reply) at 2. Petitioner avers that the I.G. has presented no evidence to make a connection between the indictment originally filed in District Court against Petitioner and the information alleged to be the basis for Petitioner's ultimate conviction in County Court. Id.

The I.G. refuted this argument by claiming that the apparent inconsistencies lie within the various court processing systems within the State of Texas, which were created in accordance with Texas law. The I.G. asserts that the original indictment was filed in District Court. That indictment charged a Class A Misdemeanor. See I.G. Supp. Ex. 1, at 1. When the indictment was transferred to County Court, for lack of jurisdiction, the title of the charging instrument changed to "information," but the substance of the original charging instrument remained unchanged. Likewise, the information received a case docket number which was consistent with the procedures within the County Court system. I.G. Br. at 8-9.

A. The District Court "indictment" was converted, upon transfer of the case, and became an "information" in the County Court.

The I.G. has adequately demonstrated that the information, which is the basis for the I.G.'s exclusion, is the same document as the original indictment. Once the original indictment was filed in the District Court, the court determined that they lacked jurisdiction to hear Petitioner's case and, therefore, the matter was transferred to County Court. I.G. Ex. 2. Succeeding review of Texas statutory and case law supports the I.G.'s assertions. The Texas Constitution grants original jurisdiction of all misdemeanors to a county court. See TX Const. art. V, § 16 (1876). All indictments must be presented in a district court, and those for misdemeanors, over which said court has no jurisdiction, must be transferred to the proper tribunal for trial. Davis v. State, 6 Tex.Crim.App. 133 (1879). In Garza v. State, 11 Tex.Ct.App. 410 (1882), the appellate tribunal determined that all prosecutions of misdemeanors in county court must be by information. A county court cannot "acquire jurisdiction or try a misdemeanor where it originated in county court, until an information has been filed." Etheridge v. State, 172 S.W. 784 (1915). Upon a district court's determination to transfer a matter to a county court:

[t]he clerk of the court, without delay, shall deliver the indictments in all cases transferred, together with all the papers relating to each case, to the proper court or justice, as directed in the order of transfer; and shall accompany each case with a certified copy of all the proceedings taken therein in the district court, . . .

Tex. Code Crim. Proc. Ann. art. 21.28 (West 2001).

Upon receipt of the transferred case by the county court clerk, the case must:

. . . be entered on the docket of the court to which it is transferred. All process thereon shall be issued and the defendant tried as if the case had originated in the court to which it was transferred.

Id., at art. 21.29.

Based upon Texas law and the evidence submitted, I conclude that the original District Court indictment dated September 20, 1996 was technically converted to an "information" upon transfer to the County Court. As a result, the Class A Misdemeanor charge against Petitioner became a matter to be decided by the County Court.

B. The I.G. has met her burden of establishing a nexus between Petitioner's conviction and the delivery of a health care item or service under Medicaid.

Having resolved the above-referenced threshold matter, the next issue to be addressed is whether the I.G. has established a connection between the ultimate County Court judgment and the delivery of an item or service under Medicaid to which Petitioner may be excluded from participation. I have concluded that the I.G. has successfully made the connection.

It is well established DAB practice that extrinsic evidence is admissible to prove "surrounding facts and circumstances to discern whether a connection exists between the conviction and delivery of an item or service under a covered health care program." Tanya A. Chuoke, R.N., DAB No. 1721 (2000). The appellate panel determined that, in the instant case on appeal:

[t]he only extrinsic evidence relevant to determining this question is that which clarifies the basis for conviction [original emphasis] on which the I.G. relied rather than merely relating to some other misconduct of Petitioner, however egregious. Even evidence of the basis for an indictment for a program-related offense related to health care delivery is irrelevant unless it resulted in the conviction on which the I.G. then relied.

Id., at 7.

Applying the standard described by the appellate panel, I conclude that the I.G. has met her burden of proof. The extrinsic link, which had not been produced when this matter was before the appellate panel, was the cover letter attached to the documents being transferred from District Court to County Court (I.G. Supp. Ex. 3). This letter makes the connection between the original indictment and the subsequent information upon which Petitioner was convicted. Petitioner originally argued in the case below that the case number on the indictment (A-96-0061-CR) and the case number assigned to the transferred case (16110) differed and that the I.G. failed to provide any evidence connecting the two case numbers. Petitioner's Reply Brief (Docket No. C-99-418) dated October 8, 1999, at 1-2. Further, Petitioner asserted that without such proof the I.G. could not establish "that the judgment concerns criminal conduct related to the alleged crime which the government relies upon in this action." Id., at 1. Petitioner's argument, in large part, formed the basis for the appellate panel's remand of the case. See Chuoke, DAB No. 1721, at 8-9. The I.G.'s submission of the previously omitted I.G. Supp. Ex. 3 adequately substantiates that the original indictment and the subsequent information are one and the same document. Upon transfer of all of the court papers from District Court to County Court, the County Court Clerk filled out a receipt provision at the bottom of the transmittal letter which identified the docket number assigned to the case by the District Court and which assigned a new docket number (16110) to Petitioner's case in accordance with County Court practices. I.G. Ex. 3. That particular piece of documentation, in conjunction with evidence previously submitted in this matter, sufficiently creates the nexus between Petitioner's charge and conviction and the delivery of an item or service under Medicaid.

IV. Conclusion

Based upon the entirety of the record, I deny Petitioner's motion to dismiss this case, and further find that the I.G. was authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act.

Marion T. Silva

Chief Administrative Law Judge

1. I.G. Supp. Exs. 1 and 4-13 were previously admitted into evidence and already a part of the record. However, for the sake of clarity and convenience, since I am admitting I.G. Supp. Exs. 2 and 3 into evidence, I am admitting the I.G.'s submission in its entirety.