SUBJECT:

Dorothy A. Woodrum,

Petitioner,

The Inspector General

DECISION

This case is before me pursuant to a request for hearing filed on December 20, 2001 by Dorothy A. Woodrum (Petitioner).

BACKGROUND

By letter dated October 31, 2001, the Inspector General (I.G.) notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all other federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) for a period of five years. The I.G. informed Petitioner that her exclusion was imposed pursuant to section 1128(a)(1) of the Act, due to her conviction (as defined in section 1128(i) of the Act), in the Vermont District Court of a criminal offense related to the delivery of an item or service under the Medicare program.

I conducted a telephone conference on February 25, 2002. The I.G. is represented in this case by the Office of Counsel to the Inspector General. Petitioner is represented by Norman Blais, Esq. The parties agreed that the case could be decided based on written submissions without the need for an in-person hearing. On April 15, 2002, the I.G. submitted her initial brief (I.G. Br.) and proposed exhibits. The I.G. filed seven proposed exhibits with her initial brief. These have been identified as I.G. Exhibits (I.G. Exs.) 1-7. On April 29, 2002, Petitioner filed her brief (P. Br.). With her brief, Petitioner filed four proposed exhibits. These have been identified as Petitioner Exhibits (P. Exs.) 1-4. On May 3, 2002, the Petitioner filed a response to the I.G.'s brief. (Pet. Resp.). On May 8, 2002, the I.G. notified this office that the I.G. would not be submitting a reply brief in the matter, but the I.G. did submit an additional proposed exhibit which was marked as I.G. Ex. 8. Although given until June 14, 2002 to do so, the Petitioner did not file anything further. There being no objection to the proposed exhibits, I admitted into evidence I.G. Exs. 1-8 and P. Exs. 1-4.

On July 3, 2002, after reviewing the evidence submitted to date, I issued a ruling to advise the parties, in particular the I.G., that I needed additional evidence concerning whether Petitioner's crime was program-related. I gave the I.G. until July 19, 2002 to provide additional evidence and I gave Petitioner until August 5, 2002 to respond. The I.G. submitted I.G. Ex. 9. The Petitioner did not respond. I have admitted I.G. Ex. 9 with no objection from Petitioner.

Based on all the evidence in the record, it is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a period of five years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that the mandatory exclusion provisions of §1128 (a)(1) do apply in this case because the Petitioner was convicted of a program-related crime. Additionally, I find that no aggravating factors exist, and accordingly, no mitigating factors can be considered. Therefore, the five year exclusion cannot be shortened.

ISSUES

The issues in this case are: (1) whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all other health care programs; and (2) whether the Petitioner committed a program-related crime, such that her five year exclusion is mandatory.

APPLICABLE LAW AND REGULATIONS

Section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)) requires the Secretary of Health and Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under a federal or state health care program.

An exclusion under section 1128(a) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B). Aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. § 1001.102(b). If aggravating factors justify an exclusion longer than five years, mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c).

Under the "permissive" exclusion provision, the Secretary may exclude an individual from participation in any federal health care program who has been convicted of a:

criminal offense consisting of a misdemeanor relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct- (i) in connection with the delivery of a health care item or service, . . .

Act, section 1128(b)(1)(A)(i)

Pursuant to 42 C.F.R. § 1001.2007, a person excluded under section 1128(a)(1) of the Act may file a request for hearing before an administrative law judge (ALJ).

PARTIES' ARGUMENTS

I.G.'s Arguments

The I.G. argues that Petitioner was convicted of a criminal offense related to the delivery of an item or service under a federal or state health care program.. Therefore, Petitioner is subject to the statutory minimum mandatory period of exclusion of five years. Act, section 1128(c)(B).

Petitioner's Arguments

Petitioner's primary argument is that her crime was not program related and therefore, since it was a misdemeanor, it should have been considered by the I.G. under the permissive, rather than mandatory, exclusion provisions. Petitioner points out that the issue of whether the putative victim was a recipient of Medicaid or Medicare, or even whether the services provided to the patient by Petitioner were part of a Medicaid or Medicare program, was never raised or litigated in the criminal proceedings in state criminal court. Petitioner argues that, where it is determined that the offending conduct was not for a "program-related crime," the Secretary is allowed to employ the permissive exclusion provision. P. Br., at 1, 2.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. At all times relevant in this case, Petitioner was a licensed nursing assistant in the State of Vermont. I.G. Ex. 4.

2. On December 11, 1998 Petitioner stole coins in the amount of $30.50 from the home of a daughter of a Medicare beneficiary. I.G. Ex. 6.

3. Petitioner was providing Medicare reimbursable home nursing care services during the time and at the address where the Petitioner stole coins. I.G. Ex. 9.

4. Petitioner was charged with one count of petit larceny in violation of 13 V.S.A. § 2502. I.G. Ex. 5.

5. On September 30, 1999, Petitioner was found guilty in the District Court of Vermont of Chittenden County of petit larceny. I.G. Ex. 4.

6. Petitioner was sentenced to probation, fined, and ordered to pay restitution in the amount of $30.50. I.G. Ex. 4.

7. Section 1128(a)(1) of the Act requires the exclusion of any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Medicare or any state health care program. Section 1128(a)(1) of the Act; 42 U.S.C. § 1320a-7(a)(1).

8. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under Medicare.

9. Petitioner was properly excluded for the mandatory minimum period of five years.

ANALYSIS

I discuss specific Findings in detail below.

1. Petitioner's conviction is subject to the mandatory exclusion authority.

Petitioner argues that since her conviction was for a misdemeanor, she is subject to the permissive exclusion authority only. I disagree. Section 1128(a) of the Act provides that mandatory exclusion applies in any of the following four situations:

a. The person has been convicted of a "criminal offense," any criminal offense, related to the delivery of an item or service under Medicare; that is, the crime was "program-related;"

b. The person has been convicted of a "criminal offense," any criminal offense, relating to neglect or abuse of patients in connection with the delivery of a health care item or service;

c. The person has been convicted of a felony of financial misconduct in connection with the delivery of a health care item or service, or for any act or omission in a health care program that is not Medicare or Medicaid but is operated by or financed by another government agency;

d. The person has been convicted of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

Section 1128 (b) of the Act provides that permissive exclusion applies in any of fifteen different situations, most of which are not relevant to this proceeding. The subsections arguably at issue here provide that the I.G. may (permissively) exclude:

a person who has been convicted of a misdemeanor of financial misconduct in connection with the delivery of a health care item or service or for any act or omission in a health care program that is not Medicare or Medicaid but is operated by or financed by another government agency; or

a person who has been convicted of any criminal offense of financial misconduct for any act or omission in a program other than health care that is operated by or financed by a government agency.

Thus, the language of the statute makes clear that whether the Petitioner's act was a felony or misdemeanor does not change whether the mandatory or permissive exclusions should apply. The applicable question is whether the conviction was for an act that was "under Title XVIII" or, in other words, was "program-related." In Lorna Fay Gardner, DAB No. 1733 (2000), the DAB stated:

We reject Petitioner's contention that the statutory provisions should be interpreted such that any individual or entity convicted of a misdemeanor is subject to the permissive, rather than the mandatory, exclusion provisions . . . . The statute as enacted by Congress draws a distinction between felony and misdemeanor offenses only for fraud committed in connection with the delivery of a health care item or service in a health program other than Medicare or State health care programs.

2. Petitioner's conviction was for a program related crime.

Petitioner in this case did not steal from Medicare or any other health care program. She was in the home of a person for whom she was providing home health care and Medicare was paying for that care. Petitioner did not steal from the person who was a Medicare beneficiary. Petitioner stole from the beneficiary's daughter. The daughter was in harm's way because her mother, the beneficiary, was living with her. The Information from which Petitioner was convicted does not mention Medicare or any other health care program. P. Exs. 3, 4. ⁽¹⁾

The question is whether the criminal offense was related to the delivery of a health care item or service under Medicare or Medicaid. I looked at prior cases for which the nexus between the act resulting in criminal conviction and the Medicare/Medicaid program was more tenuous than a direct fraud against Medicare. In Mary Ann Jimenez, DAB CR304, (1994), the petitioner, a registered nurse, was convicted of a misdemeanor of practicing medicine without a certificate because she had directed that a co-worker inject a patient (who was being treated at the clinic pursuant to a Medicaid card) with penicillin. The ALJ in the Jimenez case found there was no evidence the clinic that employed the petitioner had ever asked the patient or Medicaid to pay for the injection. Nonetheless, the ALJ found that the required common sense relationship between the conviction and Medicaid existed if the offense was committed against a Medicaid patient in the course of delivering services to that patient. The ALJ in the Jimenez case cited Jerry L. Edmonton, DAB CR59 (1989), in that case an appellate panel of the Departmental Appeals Board (Board) upheld a mandatory exclusion against a nursing home administrator who had been convicted of misapplying funds of a Medicaid recipient-patient that had been held in trust at the administrator's facility. This crime was also deemed to be program-related.

The case of Teri L. Gregory, DAB CR336 (1994) appears to be most analogous to the instant case. In the Gregory case, the petitioner worked as a certified nurse's aide at a facility where an elderly individual with dementia resided and for whom the petitioner provided care which included services reimbursed by Medicaid. Petitioner in the Gregory case was charged with a "misdemeanor" for stealing the elderly individual's wedding ring and appropriating it to her own use. The ALJ ruled that the requisite nexus existed if the I.G. established that the nurse's aide services delivered at the time of the theft were covered services under Medicaid. Gregory, at 6. The ALJ pointed out that:

Theft of personal belongings violates professional standards of care expected of a nurse's aide. The expectation that Petitioner would not steal personal property from patients under her care was an integral element of the nurse's aide services she provided to her patients.

I find in providing home health services, it is equally, if not more important for those receiving the services to have an expectation that the nurses aide will not take personal belongings of the beneficiary, or of those with whom the beneficiary resides. In determining whether Petitioner's conviction was for a program-related crime, I find it immaterial whether the stolen items belonged to the beneficiary or the beneficiary's daughter, if the items were taken during the time the Petitioner was providing home health services paid for by Medicare. The overall statutory purpose of exclusion under section 1128 of the Act is to protect federally funded health care programs, beneficiaries, and recipients of those programs from an individual who has been shown not to be trustworthy. Home health care recipients especially must be protected in their homes from individuals who have been proven untrustworthy. Therefore, I find that the misdemeanor offense for which Petitioner was convicted was a program related crime.

CONCLUSION

Sections 1128(a)(3) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs for a period of at least five years because of her conviction of a criminal offense related to the delivery of an item or service under a federal or state health care program. The five-year exclusion is therefore sustained.

Anne E. Blair

Administrative Law Judge

1. In an early case involving mandatory exclusions for patient neglect, the Departmental Appeals Board found that because the Act specifically provides for exclusion where a party is convicted of a crime "related to" patient neglect, it does not matter that "neglect" was not mentioned during the criminal process. Carolyn Westin, DAB No. 1381 (1993). Similarly with this case, it does not matter that Medicare or Medicaid was not mentioned in Petitioner's trial papers. The test of whether a conviction is related to Medicare or Medicaid "must be a common sense determination based on all relevant facts as determined by the finder of fact, not merely a narrow examination of the language within the four corners of the final judgment and order of the criminal trial court." Teri L. Gregory, DAB CR336 (1994).