Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Barbara Hart, |
DATE: January 8, 2001 |
- v - |
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The
Inspector General
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Docket No.C-00-021 Decision No. CR727 |
DECISION | |
The Inspector General (I.G.) of the United
States Department of Health and Human Services (DHHS) imposed against Barbara
Hart (Petitioner) a 10-year period of exclusion from participating in Medicare,
Medicaid, and other federally financed health care programs. I provide here
a brief summary of my decision. First, I find that Petitioner's Alford plea
of guilty to Medicaid fraud was accepted by a Maryland judge (judge), who
then found Petitioner guilty of Medicaid fraud. The judge then struck the
finding of guilt and placed Petitioner on probation before judgment, thereby
giving Petitioner the opportunity to avoid being convicted of Medicaid fraud
for purposes other than exclusion. Nevertheless, due to the definition of
"convicted" applicable to exclusions, I find that Petitioner was
convicted of Medicaid fraud for the purpose of
exclusion. Consequently, the I.G. was required
to exclude Petitioner for at least five years. The I.G. in her discretion
extended the exclusion to 10 years based upon 4 aggravating factors. I decide
that the 10-year period of exclusion is within a reasonable range. I. Procedural History By letter dated August 31, 1999, the I.G. notified Petitioner
that she was being excluded for a minimum period of ten years from participating
in the Medicare, Medicaid, and all other federally financed health care
programs, as defined in section 1128B(f) of the Social Security Act (the
Act). Hereafter, I refer to these programs generally as "Medicare and
Medicaid." The I.G. explained that Petitioner's exclusion, under section
1128(a)(1) of the Act (42 U.S.C. 1320a-7(a)), was due to her conviction
of a criminal offense related to the delivery of an item or service under
the Medicaid program. The I.G. explained further that five years of exclusion
were mandatory under section 1128(c)(3)(B) of the Act. The I.G. notified
Petitioner that, based upon the evidence of four aggravating factors,
the I.G. extended the period of exclusion to 10 years. By letter dated
October 7, 1999, Petitioner timely requested a hearing, and the case was
assigned to me for decision. During a prehearing conference, the parties agreed that an in-person (oral) hearing was not necessary, and the case could be decided upon written submissions of documentary evidence (exhibits) and written argument (briefs), as provided in 42 C.F.R. � 1005.6(b)(5). Petitioner filed her brief in opposition to exclusion (P. Br.), accompanied by one exhibit, which I refer to as Petitioner Exhibit (P. Ex.) 1. The I.G. did not object to P. Ex. 1 (P. Ex. 1 is the same as I.G. Ex. 4.), and I admit into evidence P. Ex. 1. The I.G. filed her response brief in support of exclusion (I.G. Br.), accompanied by I.G. Exhibits (Exs.) 1 - 7. Petitioner did not object to I.G. Exs. 1 - 7, and I admit into evidence I.G. Exs. 1 - 7. Petitioner filed her reply brief (P. R. Br.). Petitioner thereafter filed a letter dated August 31, 2000 which included additional argument as to Petitioner's position. At my request, Petitioner obtained and filed a previously
recorded video tape of Petitioner's appearance in the Baltimore City Circuit
Court (the Court) on May 21, 1999. I refer to the video tape as ALJ Ex.
1 and hereby admit it into evidence. The video tape is continuously annotated
with the date of 5-21-99. Also annotated is the time during Petitioner's
hearing, in a hh:mm:ss (hours:minutes:seconds) format. The video
tape begins at 10:32:25 and ends at 11:04:02. I decide the case based on the written record plus the
video tape. II. Applicable Law Under section 1128(a)(1) of the Act (42 U.S.C. 1320a-7(a)(1)),
the Secretary of DHHS shall exclude from participation in Medicare and
Medicaid any individual or entity that has been convicted of a criminal
offense related to the delivery of an item or service under Medicare or
Medicaid. The Secretary of DHHS has delegated to the I.G. the authority
to exclude individuals from participation in Medicare and Medicaid. 53
Fed. Reg. 12,993 (1988). Section 1128(c)(3)(B) of the Act (42 U.S.C. 1320a-7(c)(3)(B)),
provides that an exclusion imposed under Section 1128(a)(1) of the Act
shall be for a period of at least five years. Under the regulations, if
certain aggravating factors are present, the length of the exclusion may
be extended beyond the minimum five-year period. 42 C.F.R. � 1001.102(b).
If aggravating factors are present, the ALJ may consider certain mitigating
factors, specified at 42 C.F.R. � 1001.102(c). Section 1128(i) of the Act (42 U.S.C. � 1320a-7(i)) specifically
defines conviction for purposes of the Act and states:
III. Issues The issues are whether there is a basis for the exclusion,
and whether the ten-year exclusion imposed by the I.G. fell within a reasonable
range. Joann Fletcher Cash, DAB No. 1725 at 17 - 18 (2000) (citing
C.F.R. � 1001.2007(a)(1) and the preamble to the regulations, found at
57 Fed. Reg. 3298, 3321 (1992)). As to the general issue of whether there
is a basis for the exclusion, the specific underlying issue is whether
it is mandatory that Petitioner be excluded, pursuant to sections 1128
(a)(1) and (c)(3)(B) of the Act. To determine whether Petitioner's exclusion
is mandatory, I must resolve whether Petitioner was "convicted" of a criminal
offense in accordance with the definition of "conviction" found in section
1128(i) of the Act, more specifically:
If the Petitioner was so "convicted," a further issue
is whether the conviction is related to the delivery of an item or service
under Medicaid, as provided in section 1128(a)(1) of the Act. If I find that Petitioner was "convicted," of a program-related offense, the final issue is whether the I.G.'s decision to extend Petitioner's exclusion to a 10-year period is unreasonable. Germane to that issue is whether "aggravating factors" are present, and, if so, whether the 10-year period of exclusion is within a reasonable range based on those aggravating factors, found at 42 C.F.R. � 1001.102(b). IV. Findings of Fact and Conclusions
of Law
5. Pursuant to the Agreement, Criminal Information #
299109030 was filed in the Circuit Court for Baltimore City, State of
Maryland (the Court), charging Petitioner with felony Medicaid fraud
(Count One) and misdemeanor willful failure to file a 1996 Maryland
income tax return (Count Two). I.G. Ex. 2. 6. The Medicaid fraud count alleged that, from on or
about November 11, 1994, through on or about December 29, 1996, Petitioner
had intentionally made false statements and claims regarding apnea monitor
rental and related respiratory therapy goods and services that Petitioner
had provided to Medicaid recipients. I.G. Ex. 2; I.G. 3 at 9. 7. On May 21, 1999, Petitioner appeared in Court and, pursuant to the Agreement, entered her Alford plea to Medicaid fraud and her guilty plea to the income tax count. I.G. Exs. 4 - 6. 8. Petitioner's Alford plea to
Medicaid fraud, rather than admitting her guilt, signified her acknowledgment
that she had given up all factual and legal defenses to the Medicaid
fraud charge. ALJ Ex. 1 at 10:50:35 - 10:50:56. 10. As the judge advised Petitioner's
counsel in a recorded bench conference, "A guilty plea pursuant to Alford
is a guilty plea . . ." ALJ Ex. 1 at 10:35:28. 12. Petitioner's Alford plea,
coupled with her Agreement, through which Petitioner knowingly consented
to having the SOF containing the elements of intentional Medicaid fraud
read into and made part of the record, is the functional equivalent
of a guilty plea, within the meaning of section 1128(i) of the Act.
18. As to the income tax count, the judge entered judgment of conviction and sentenced Petitioner to 18 months' imprisonment, suspended that sentence, and granted Petitioner probation. ALJ Ex. 1 at 11:01:15; I.G. Ex. 5 at 2. 19. On each count, the judge placed Petitioner on 5 years' supervised probation, requiring as conditions of probation that Petitioner: serve 90 days of home detention with an electronic monitor; reimburse Maryland Department of Health & Mental Hygiene $23,008.15; perform 300 hours of community service; file federal and State income tax returns for the tax years of 1993 through 1997; and pay $170.00 in costs. ALJ Ex. 1 at 11:01:14 - 11:02:08; I.G. Exs. 5 - 7. 20. Md. Ann. Code art. 27, � 641 (1957) provides in part:
V. Discussion A. Petitioner was convicted of a criminal offense
within the meaning of section 1128(i) of the Social Security Act. The first statutory requirement for the imposition of
mandatory exclusion pursuant to section 1128(a)(1) of the Act is that
the individual be convicted of a criminal offense. I find that this requirement
is met in Petitioner's case. The term "convicted" is defined in section
1128(i) of the Act. This section provides that under four alternative
definitions of the term "convicted," an individual will be deemed convicted
of a criminal offense:
The disposition of an individual's criminal case need
meet only one of the statutory definitions for that person to be deemed
"convicted" within the meaning of section 1128(i) of the Act. Petitioner contends that because the Court vacated its
previous guilty verdict when it changed its disposition of Petitioner's
case to probation before judgment, pursuant to Md. Ann. Code art. 27,
� 641, that none of the definitions of "convicted" found in section 1128(i)
of the Act may be applied to her. Petitioner argues that an adjudication
of probation before judgment in Maryland is not considered a "conviction"
under Maryland law. Petitioner contends that probation before judgment
does not provide legal justification for the I.G. to exclude her from
Medicare and Medicaid. Petitioner argues that to base exclusion upon a
finding of probation before judgment is opposite of the legislative intent
and the case law in Maryland. P. R. Br. at 4. Petitioner attempts to draw
distinctions between her case and that of the case relied upon by the
I.G., Michael P. Hiotis, DAB CR316 (1994). In particular, Petitioner
argues that unlike Hiotis, Petitioner offered an Alford plea to a written
statement of facts, but did not plead guilty. Petitioner further states
that ". . . unlike Mr. Hiotis, [she] was never subject to a finding of
guilt. Ms. Hart was granted probation before judgment under Md. Ann. Code
art. 27, � 641 (1957), and was not the subject of an entered guilty finding."
P. R. Br. at 3. Petitioner does agree that ". . . in Hiotis [sic], exclusion
is proper." P. R. Br. at 3. In her letter of August 31, 2000, Petitioner
argues that ". . . the State of Maryland cannot exclude [Petitioner] from
its program on a finding of probation before judgment." The I.G. contends that Petitioner was convicted within
the meaning of section 1128(i)(3) and (4). I agree with the I.G.'s position.
In addition, I conclude that Petitioner was also convicted within the
meaning of section 1128(i)(2). Petitioner was convicted of a criminal offense within
the meaning of section 1128(i)(2) of the Act. An individual will be deemed convicted:
Section 1128(i)(2) of the Act. During Petitioner's plea allocution, the State's attorney
read portions of the agreed SOF into the record, and by agreement, made
the whole SOF part of the record. It is clearly understood from a fair
review of the video tape record of the court proceedings that the Court
entered a guilty verdict. ALJ Ex. 1. at 10:57:18 - 26. Petitioner was
convicted of count one, a criminal offense within the meaning of section
1128(i)(2) of the Act and count two, a misdemeanor income tax offense.
Thereafter, the Court imposed a penalty upon her. ALJ Ex. 1 at 10:57:18
- 26. The guilty verdict is also indicated by the letter "G"
entered in the court docket sheet in the space labeled "VER." I.G. Ex.
5 at 2. Citing Hiotis, Petitioner argues that "Petitioner,
unlike Hiotis, was never subject to a finding of guilt." Petitioner does
not directly challenge the legal principal set out in Hiotis, but
seeks to persuade this court that the legal principal in Hiotis
does not apply because there was no finding of "guilt." P. R. Br. at 2.
I do not agree. Petitioner's argument flies in the face of the literal
words clearly recorded and heard on the video tape. ALJ Ex. 1 at 10:57:18
- 26. The only convictions which cannot serve as the basis for an exclusion
are those which have been reversed or vacated. Douglas L. Reece, D.O.,
DAB CR305 (1994). In the present case, the Court's action in striking the
guilty verdict it had entered against Petitioner did not amount to a finding
that she was not guilty of the offenses to which she had pled. Indeed,
by the terms of Md. Ann. Code art. 27, � 641, a plea of guilty or a finding
of guilt is required before a court may place a person on probation before
judgment. Thus, the Court's original acceptance of Petitioner's Alford
plea and the entering of a guilty verdict were not deprived of their force
and effect as a "conviction" within the meaning of section 1128(i)(2)
by the Court's later action in striking the verdict. I conclude that the
court's entry of a guilty verdict against Petitioner represents a finding
of guilt against Petitioner, within the meaning of section 1128(i)(2). However, even were I to find that Petitioner had not been
convicted within the meaning of section 1128(i)(2), I would nevertheless
find that Petitioner has been convicted within the meaning of sections
1128(i)(3) and (i)(4) of the Act. Petitioner was convicted of a criminal offense within
the meaning of section 1128(i)(3) of the Act. An individual will be deemed convicted:
Section 1128(i)(3) of the Act. In the present case, it is undisputed that, pursuant to
the Agreement, Petitioner offered an Alford Plea in the Court to one count
of felony Medicaid fraud and guilty to one count of willfully and intentionally
failing to file a income tax return (a misdemeanor) for the year 1996. During a lengthy qualification recital(1) by her counsel:
Petitioner contends that the offering of an Alford Plea
along with reading the agreed SOF into the record and the Court's guilty
verdict may not be the basis for a finding that she was "convicted" within
the meaning of section 1128(i) and may not provide a basis for exclusion.
P. Br. at 7. Petitioner appears to argue that because she couched her
plea as an Alford plea, the Judge's finding of guilt upon hearing the
SOF was different in quality or character than if the guilty verdict was
declared under any other traditional means. That is not so. After calling Petitioner's case for hearing, the judge advised Petitioner's counsel in a recorded bench conference that "A guilty plea pursuant to Alford is a guilty plea . . ." ALJ Ex. 1 at 10:35:28. Petitioner's Alford plea, coupled with her Agreement,
through which Petitioner knowingly consented to having the SOF containing
the elements of Medicaid fraud read into and made part of the record,
is a guilty plea, within the meaning of section 1128(i) of the Act. Maryland's
Court of Appeals states that "An Alford plea [is] a specialized type of
guilty plea, where the defendant, although pleading guilty, continues
to deny his or her guilt, but enters the plea to avoid the threat of greater
punishment. . . . an Alford plea is the functional equivalent of a guilty
plea . . ." Ward v. State, 83 Md. App. 474, 575 A.2d 771 (1990)
at 773. Section 1128(i)(4) of the Act. Subsequent to entering the guilty verdict, the Court granted
Petitioner's motion and imposed probation before judgment pursuant to
Md. Ann. Code, art. 27, � 641. As quoted above, that statutory provision
permits a court, after a plea or finding of guilt, to stay the entering
of judgment, defer further proceedings, and place the offender on probation.
If the offender successfully completes probation, the court will dispose
of the matter by discharging the offender from probation, without judgment
of conviction (as defined under Maryland Law). Petitioner argues in her
letter of August 31, 2000, that she would not lose the opportunity to
do business with Medicaid in Maryland as a direct result of the Court
proceedings, because probation before judgment does not constitute a conviction
under State law. Under the Medicaid funding scheme, however, States administer
grants from the federal government in accordance with federal statutes
and regulations. Thus, what constitutes a conviction under the Medicaid
Act is determined by federal law, not state law. Travers v. Shalala,
20 F.3d 993 (9th Cir. 1994). See also Yavacone v.
Bolger, 645 F. 2d 1028, 1034 (D.C. Cir. 1981). This disposition falls
squarely within the definition of conviction at section 1128(i)(4), which
includes all dispositions involving deferred adjudications and arrangements
where a judgment of conviction is withheld. Moreover, if there were any
doubt that the language of section 1128(i)(4) encompasses the disposition
of Petitioner's case pursuant to Md. Ann. Code, art. 27, � 641, examination
of the legislative history of section 1128(i) shows that Congress intended
to cover situations like the present case. The congressional committee
charged with drafting the 1986 amendments to the Act stated:
H.R. Rep. No. 727, 99th Cong., 2d Sess. 75 (1986), reprinted
in 1986 U.S.C.C.A.N. 3607, 3665. I find that disposition of Petitioner's criminal case
pursuant to Md. Ann. Code art. 27, � 641 constitutes a conviction under
the definition of the first offender and deferred adjudication provisions
mentioned in the committee report. Petitioner offered an Alford plea accompanied
by the agreed SOF related to Medicaid fraud and was found guilty of a
felony. Even if she ultimately is discharged by the Court without a judgment
of conviction under Maryland State law, Congress has made clear that it
does not intend for Medicare and Medicaid to do business with her. Therefore,
Petitioner was convicted within the meaning of section 1128(i)(4). B. Petitioner's conviction is related to the delivery
of a health care item or service. Under section 1128(a)(1) of the Act, Petitioner was convicted
of a criminal offense related to the delivery of a health care item or
service under Medicaid. The record establishes that, in agreeing to the SOF for Count 1 of the Criminal Information, Petitioner admitted that the facts would prove that she intentionally filed, or caused to be filed, claims against Medicaid that charged for items or services which were never provided. Petitioner's conviction is related to the delivery of items or services under the Medicaid program, within the meaning of section 1128(a)(1) of the Act, because the SOF clearly states that Petitioner intentionally billed the Medicaid program for the delivery of an [health care] item or service which was not delivered to Medicaid recipients. I.G. Ex. 3 at 7. Pursuant to her Agreement with the State, Petitioner offered an Alford plea to Count 1 of the State's Criminal Information (charging her with Medicaid fraud) followed by a reading of an agreed SOF. Specifically, Count 1 alleged that Petitioner:
I.G. Ex. 2 at 2. This language plainly establishes a direct connection
between the criminal offense for which Petitioner was convicted and the
Medicaid program. Petitioner's fraudulent claims for Medicaid reimbursement
related to the furnishing of apnea monitors and related supplies and services
to Medicaid recipients. I find that there exists the requisite nexus and
common sense connection between the criminal offense for which Petitioner
was convicted and the delivery of an item or service under Medicaid. It is well established that financial misconduct directed
at the Medicare and Medicaid programs, connected with the delivery of
items or services under a covered program, constitutes a program-related
offense invoking mandatory exclusion. Id. at 5-6. In particular,
filing fraudulent Medicare or Medicaid claims has been held to constitute
program-related misconduct. Jack W. Greene, DAB No. 1078 (1989),
aff'd sub nom; Greene v. Sullivan, 731 F.
Supp. 835, 838 (E.D. Tenn. 1990). Further, as an appellate panel of the
Departmental Appeals Board pointed out in Niranjana B. Parikh, M.D.,
DAB No. 1334 (1992), the Board "has consistently recognized common sense
connections between an offense and the delivery of an item or service,
even if the individual at issue did not physically deliver the item or
service." Id. at 5. The filing of fraudulent Medicare and Medicaid claims
consistently has been held to constitute clear program-related misconduct.
Alan J. Chernick, D.D.S., DAB CR434 (1996) (I.G.'s five-year mandatory
exclusion of dentist who was convicted in state court of filing false
claims upheld); see also Barbara Johnson, D.D.S.,
DAB CR78 (1990) (I.G.'s five-year mandatory exclusion of dentist convicted
of filing false claims upheld). To determine if an offense is program-related, the Administrative
Law Judge (ALJ) must analyze the facts and circumstances underlying the
conviction to determine whether a nexus or common sense connection links
the offense for which a petitioner has been convicted and the delivery
of a health care item or service under a covered program. Berton Siegel,
D.O., DAB No.1467 (1994). The falsified claims leading to Petitioner's
conviction resulted in her receipt of fraudulent Medicare reimbursement.
In Rosaly Saba Khalil, M.D., DAB CR353 (1995), the ALJ found that
a criminal offense stemming from the fraudulent receipt of reimbursement
checks from Medicaid provided a sufficient nexus between the offense and
the delivery of health care items or services under Medicaid. Additionally,
the ALJ in Khalil held that a nexus may exist "despite the fact
that Petitioner may not have provided items or services to Medicaid recipients
personally or made reimbursement claims for those items or services."
Id. In the present case, the nexus between Petitioner's offense
and the delivery of health care items or services under Medicaid is firmly
established by Petitioner's having been found guilty of Medicaid fraud,
based on the facts contained in the agreed SOF. The Conclusion portion
of the SOF states: "Had this case gone to trial, the State would have
proven beyond a reasonable doubt that Barbara Hart deliberately submitted
claims to the Medicaid program for services that she knew had not been
provided as billed, for a total loss to the State of at least $23,008.15."
Thus, I find that the criminal offense which provided the basis for Petitioner's
conviction constitutes a criminal offense related to the delivery of an
item or service under Medicaid, within the meaning of section 1128(a)(1)
of the Act [42 U.S.C. � 1320a-7(a)(1)]. Accordingly, Petitioner is subject
to a mandatory exclusion of at least five years. Section 1128 (c)(3)(B)
of the Act [42 U.S.C. � 1320a-7(c)(3)(B)]. C. The I.G. is authorized to impose an exclusion
longer that five years because of the aggravating factors. The Secretary has promulgated regulations concerning the
factors which should be used in establishing the length of an exclusion.
These factors go to the seriousness of the offenses and the cooperation
of the offending party. They are reasonably related to the goal of determining
the degree of untrustworthiness of an individual and the future threat
posed by that person to the integrity of Federal health care programs.
Cash, DAB No. 1725 at 14. The regulations referred to in Cash and found at 42 C.F.R. � 1001.102(b), provide that factors to be considered aggravating may be used as a basis for lengthening a period of exclusion. I find that aggravating factors exist in Petitioner's case. In Petitioner's case, four of nine possible aggravating factors are present and should be considered in determining the length of exclusion. The following factors apply in Petitioner's case:
In addition, the exhibits provided by the I.G. establish
that there is a fifth aggravating factor under 42 C.F.R. � 1001.102(b)(7).
It provides that an aggravating factor exists if the individual has at
any time been overpaid a total of $1,500 or more as a result of intentional
improper billings. The exhibits contain multiple examples of intentional
overbilling by Petitioner each in amounts greater than $1,500. I.G. Ex.
3. at 4 - 9. The I.G. did not give notice of the fifth aggravating factor
in its Notice letter of August 31, 1999. Accordingly, I have not considered
it in my decision. Petitioner's fraud resulted in more than $1,500 damage
to the Maryland Medicaid program. Petitioner's conviction for Medicaid fraud resulted in
the financial loss to the Maryland Medicaid program of more than $1,500.
In Petitioner's Order for Probation, dated May 21, 1999, the Circuit Court
Judge ordered Petitioner to pay $23,008.00 in restitution. I.G. Ex. 6. Therefore, the $1,500 threshold in the above-listed aggravating
factor is satisfied in Petitioner's case. In fact, the loss to the Maryland
Medicaid program equaled more than 15 times the threshold amount. Petitioner's
agreement to pay restitution of $23,008 is a tacit admission that she
engaged in unlawful conduct that damaged the Medicaid program in at least
the amount of the restitution payment. I find that the aggravating factor under 42 C.F.R. � 1001.102(b)(1)
has been established. Petitioner's fraudulent acts, or similar acts, were
committed over a period of one year or more. The second factor used by the I.G. in determining the
length of exclusion is that Petitioner's acts that resulted in the conviction,
or similar acts, were committed over a period of one year or more. In
this case, the Criminal Information indicates the time period for Petitioner's
fraudulent conduct was from on or about November 11, 1994 to on or about
December 29, 1996. I.G. Ex. 2. I find that the aggravating factor under 42 C.F.R. � 1001.102(b)(2)
has been established. Petitioner's sentence included a period of incarceration. The third factor the I.G. considered in determining Petitioner's
length of exclusion was that Petitioner's court sentence for Medicaid
fraud included a period of incarceration. The sentencing document demonstrates
that Petitioner was sentenced to ninety (90) days of home detention. I.G.
Ex. 7. Incarceration includes "home detention." 42 C.F.R. 1001.2(d). I find that the aggravating factor under 42 C.F.R. � 1001.102(b)(5)
has been established. Petitioner was convicted of other offenses besides
those that formed that basis for the exclusion. The fourth aggravating factor established by the I.G.
was that Petitioner was convicted of other offenses besides the one that
formed the basis for the exclusion. On May 21, 1999, Petitioner entered
an Alford plea to a felony count of Medicaid Fraud (Count 1) and pled
guilty to one misdemeanor count of willful failure to file an income tax
return for calendar year 1996 (Count 2). I.G. Ex. 2 at 3; Ex. 4. The SOF
shows that the Petitioner had failed to file Maryland State income tax
returns for calendar years 1993 through 1997. The SOF further shows that
she had undisclosed gross income (not reported on Maryland State income
tax returns) from billing health insurers of at least $63,792 in 1993;
$100,244 in 1994; $117,744 in 1995; $139,417 in 1996; and $28,183 in 1997.
I.G. Ex. 3 at 8. Thus, Petitioner was convicted of another crime, besides
the one of which formed the basis for the exclusion (Felony Medicaid Fraud).
Id. Therefore, Petitioner was convicted of other offenses besides
those that formed the basis for the exclusion. I find that the aggravating factor under 42 C.F.R. � 1001.102(b)(9)
has been established. D. A 10-year exclusion is not unreasonable. Sections 1128(a)(1) and (c)(3)(B) of the Act mandate that
Petitioner be excluded from Medicare and Medicaid for at least five years
because of her criminal conviction for filing false Medicaid claims, which
conviction is related to the delivery of items or services under Medicaid.
Neither the I.G. nor the ALJ is authorized to reduce the five-year mandatory
minimum exclusion. Greene, DAB CR19, at 12-14; Stanley H. Guberman,
D.C., DAB CR111, at 9 (1990) (citing Samuel W. Chang, M.D.,
DAB No. 1198 (1990)). Additionally, the I.G. has demonstrated the presence of
four aggravating factors defined by the regulations. Petitioner has not
proved the existence of any mitigating factors allowed by the regulations.
Petitioner's exclusion may be lengthened by any or all of the four aggravating
factors discussed above. The presence of these aggravating factors is
a measure of the Petitioner's untrustworthiness. A 10-year exclusion is
within a reasonable range and is consistent with the remedial purpose
of the Act. Khalil, supra, DAB CR353 at 9.
VI. Conclusion I conclude that the I.G. was required to exclude Petitioner from participating in Medicare and Medicaid pursuant to section 1128(a)(1) of the Act. I conclude that exclusion for at least five years was mandated by section 1128(c)(3)(B) of the Act, and that the 10-year period of exclusion is within a reasonable range. |
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JUDGE | |
Jill S. Clifton Administrative Law Judge
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FOOTNOTES | |
1. A qualifying statement (or recital) is often employed in a criminal case when the court requires the record of the case to reflect that the defendant is mentally competent to accept a plea agreement and to affirm the defendant is aware of the consequences of his/her actions in agreeing to a SOF as well as a recital of age, education, and presence of mind. | |