SUBJECT:

Vincent Bennett, a/k/a Vincent Bernard Bennett,

Petitioner,

The Inspector General

DECISION

I grant the I.G.'s motion for summary disposition, and sustain the determination of the I.G. to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of five years.⁽¹⁾ I find that a basis exists for Petitioner's exclusion pursuant to section 1128(a)(1) of the Social Security Act (Act). I further find that the I.G.'s exclusion for a minimum period of five years is mandatory.

I. Background

By letter dated February 28, 2001, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. The I.G. imposed this exclusion pursuant to section 1128(a)(1) of the Act, based on Petitioner's conviction in the State of Michigan, Third Judicial Circuit Court, Wayne County, for a criminal offense related to the delivery of an item or service under the Medicaid program.⁽²⁾

By letter dated March 27, 2001, Petitioner requested a hearing before an administrative law judge (ALJ). The case was assigned to me for hearing and decision.

On May 14, 2001, I convened a prehearing telephone conference. During the conference, Petitioner advised of his efforts to retain legal counsel.⁽³⁾ Petitioner further suggested that a briefing schedule be established. With the parties' agreement, a briefing schedule was established.

On June 25, 2001, the I.G. submitted her brief (I.G. Br.), which was accompanied by four proposed exhibits (I.G. Exs. 1-4). Petitioner's response brief (P. Br.) was submitted on November 20, 2001. The I.G. did not file a reply brief. Petitioner did not object to my receiving into evidence the I.G.'s proposed exhibits, and therefore, I receive into evidence I.G. Exs. 1-4. I base my decision in this case on the parties' arguments, the exhibits, and the applicable law.

II. 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 an item or service under Medicare or Medicaid to be excluded from participation in such programs for a minimum period of five years.

III. Issues, findings of fact and conclusions of law

A. Issues

The issue in this case is whether a basis exists to exclude Petitioner.

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. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Summary disposition is appropriate in this case.

Petitioner opposes the I.G.'s motion for summary disposition and petitioned for an in-person hearing. I find that there are no disputed issues of material fact and, consequently, summary disposition is appropriate.

Petitioner stipulates that he was excluded from Medicaid participation by the I.G., and that the exclusion was based upon his conviction for Medicaid fraud. P. Br. at 1. Petitioner does argue that:

1. circumstances exist which make the five-year exclusion unreasonable;

2. his exclusion should be "based upon the permissive exclusion provisions of the Act . . . [and] eliminated or reduced to three years or less;" and

3. Petitioner should be given the opportunity to offer such proof at an in-person hearing.

Id. at 2. However, as I discuss below, at Finding 2, none of these alleged circumstances are relevant to the issue of whether a basis exists for the exclusion. Consequently, no basis exists for me to give Petitioner a hearing as to these alleged facts.

2. A basis exists to impose an exclusion against Petitioner.

From August 1996 through February 1997, Petitioner was employed at a substance abuse treatment facility as a counselor. I.G. Ex. 4. The undisputed material facts of this case establish that, on July 21, 2000, Petitioner pled guilty to the one count of submitting a false claim to the Michigan Medicaid program. I.G. Ex. 3. The particulars of his crime are delineated in an 18-count felony complaint that was filed against Petitioner in the State of Michigan, Third Judicial Circuit Court, Wayne County, on June 2, 1999. I.G. Ex. 4. The complaint charged that, among other things, Petitioner knowingly submitted false claims to the Michigan Medicaid program for substance abuse counseling which, in fact, Petitioner did not provide. Id., at 2-4. Petitioner does not contend that he did not enter into a plea agreement. Instead, he argues that the plea instrument itself is flawed in that he was not adequately advised of the consequences (i.e. his exclusion from Medicaid participation) that would result from his acceptance of the plea agreement. P. Br. at 2. Therefore, based upon Petitioner's contentions, he concludes that his constitutional rights have been violated.

Petitioner's guilty plea and the Court's acceptance of the plea satisfy the definition of "conviction" under section 1128(i)(3) of the Act which states in relevant part:

CONVICTED DEFINED. -- For purposes of subsections (a) and (b) [section 1128 of the Act], an individual or entity is considered to have been "convicted" of a criminal offense --

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court[.]

It is the fact of the conviction for a criminal offense which establishes a basis for an exclusion. I do not have the authority to delve into the intricacies behind the conviction, and Petitioner may not use the administrative appeals process set forth at 42 C.F.R. Part 1005 et seq. to obtain redress for his alleged constitutional harms. See Serban I. Cocioba, M.D., DAB CR654 (2000) (finding no jurisdiction to rule on constitutional claims); Morton Markoff, D.O., DAB CR538 (1998) (administrative law judges lack authority to decide constitutional claims).

Petitioner was "convicted" within the meaning of section 1128(a)(1) of the Act of a criminal offense related to the delivery of an item or service under the Medicaid program. Under section 1128(a)(1) of the Act, the I.G. is required to exclude any individual who is convicted of a crime related to the delivery of an item or service under the Medicaid program. There is no dispute in this case that Petitioner's crime is such a crime and, therefore, a basis exists to exclude Petitioner.

3. An exclusion of five years is mandatory.

An exclusion of at least five years is mandatory for any individual or entity that has been convicted of a criminal offense that is related to the delivery of an item or service under Medicare or under any State health care program. Therefore, the question of "reasonableness" is not a subject for consideration. See 42 C.F.R. § 1001.2007(a)(2). The I.G. is required to exclude, for at least five years, any individual who is excluded pursuant to section 1128(a)(1) of the Act. Act, section 1128(c)(3)(B).

IV. Conclusion

I find that the I.G. was authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act. I further find that a minimum five-year exclusion is mandatory. Therefore, I sustain the I.G.'s determination to exclude Petitioner from participation in the Medicaid program for a five-year period.

Marion T. Silva

Chief Administrative Law Judge

1. "Federal health care program" is defined in section 1128(f) of the Act and includes any State health care program, as defined in section 1128(h) of the Act.

2. In this decision, I use the term "Medicaid" to refer to any State health care program which receives federal funds as defined by section 1128(h) of the Act.

3. On October 31, 2001, Attorney Douglas Monds entered notice of appearance as counsel for Petitioner.