SUBJECT:

Frederic Dunn, D.D.S.,

Petitioner,

The Inspector General.

DECISION

This case is before me pursuant to a request for hearing filed on April 15, 2005, by Frederic Dunn, D.D.S., Petitioner.

By letter dated January 31, 2005, the Inspector General (I.G.) notified Petitioner that he was being excluded from participation in the Medicare, Medicaid, and all 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 his exclusion was imposed under section 1128(a)(1) of the Act, due to his conviction of a criminal offense (as defined in section 1128(i) of the Act) related to the delivery of an item or service under Medicare or any state health care program.

On July 8, 2005, I convened a telephone prehearing conference during which the parties agreed that an in-person hearing was not required, and that the only issues in the case were legal issues which could be decided based on written memoranda and documentary evidence. Consequently, on July 11, 2005, I issued an Order establishing briefing deadlines. Pursuant to that Order, on August 2, 2005, the I.G. filed a brief, accompanied by eight proposed exhibits. On December 28, 2005, Petitioner submitted a brief in support of his contentions, accompanied by three proposed exhibits. On January 13, 2006, the I.G. filed a reply brief. Neither party objected to the exhibits submitted by the opposing party. I admit into evidence I.G. exhibits (I.G. Exs.) 1-8 and Petitioner exhibits (P. Exs.) 1-3.

It is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in Medicare, Medicaid, and all 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 Petitioner was convicted of a criminal offense related to the delivery of an item or service under a state health care program, here the Mississippi Medicaid program.

ISSUE

Whether the I.G. had a basis upon which to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs as defined in section 1128B(f) of the Act.

APPLICABLE LAW AND REGULATIONS

Section 1128(a)(1) of the Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from participation in Medicare, Medicaid, and any other federal health care program (as defined in section 1128B(f) of the Act), any individual or entity convicted of a criminal offense related to the delivery of a health care item or service under Medicare or any state health care program.

An exclusion under section 1128(a)(1) of the Act must be for a minimum period of five years. Section 1128(c)(3)(B) of the Act.

Pursuant to 42 C.F.R. � 1001.2007, an individual or entity excluded under section 1128(a)(1) of the Act may file a request for a hearing before an administrative law judge. However, when an individual or entity has been excluded pursuant to section 1128(a)(1) for the minimum mandatory period of five years, that individual or entity may contest only whether a basis for the imposition of the sanction exists. The individual or entity is specifically precluded from contesting whether the length of the exclusion is unreasonable. 42 C.F.R. � 1001.2007(a)(2).

The findings of fact and conclusions of law noted below, in bold face, are followed by a discussion of each finding.

1. Petitioners conviction of a criminal offense related to the delivery of an item or service under the Mississippi Medicaid program justifies his exclusion by the I.G. from participation in Medicare, Medicaid, and all other federal health care programs.

On June 13, 2002, Petitioner was indicted on nineteen counts of Medicaid fraud in the Circuit Court of the First Judicial District of Hinds County, State of Mississippi. Ten of the counts were related to the submission of false claims to the Mississippi Medicaid program ⁽¹⁾ and nine of the counts referred to the unlawful receipt of payments from said program, ⁽²⁾ which is funded by the State and federal governments. I.G. Exs. 2, 5.

Pursuant to an agreement between the State and the Defendant (Petitioner herein), on March 22, 2004, Petitioner entered a plea of guilty as to Counts I and II of the First Indictment and a plea of guilty as to Count I of the Second Indictment. I.G. Exs. 3, 4, 6. The remaining counts were remanded. The Court withheld acceptance of the pleas and adjudication of guilt and imposition of sentence pending completion of the conditions established in the disposition Orders. The Orders provided for three years of supervised probation and restitution of $7417.04. Additionally, the Court specified that should Petitioner fail to comply with the terms and conditions established in said Orders, the Court would immediately accept the guilty pleas and proceed to issue a sentence. Id.

The I.G. notified Petitioner on January 31, 2005, that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs, for a period of five years, based on his conviction in the Circuit Court of the First Judicial District of Hinds County, Mississippi.

The threshold question to be decided is whether Petitioner was convicted of a criminal offense (as defined in section 1128(i) of the Act). Petitioner does not contest that, if he is found to have been convicted under the Act, his conviction is related to the delivery of an item or service under the Mississippi Medicaid program.

Petitioner contends that no "conviction" exists in this case inasmuch as the Court entered a conditional dismissal Order specifically withholding acceptance of Petitioners guilty plea and sentence thereon pending completion of certain enumerated conditions imposed by the Court. This argument lacks merit.

The Act provides that, for purposes of an exclusion under section1128(a)(1), an individual is considered "convicted" of a criminal offense-

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

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

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Section 1128(i) of the Act. In this case, Petitioner entered pleas of guilty to three felony counts of Medicaid fraud. Petitioner's argument that he was not convicted because the Court withheld acceptance of the guilty pleas and judgment thereon is unavailing. The Act expressly provides that when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld, that individual or entity is considered to have been "convicted." Section 1128(i)(4) of the Act.

Congress broadly defined the term "conviction" in order ". . . to ensure that exclusions from federally funded health programs would not hinge on state criminal justice policies." Carolyn Westin, DAB No. 1381, at 3 (1993). So, the fact that a court's adjudication is not a "conviction" under state law is not controlling. Id. Petitioner must be deemed convicted under the broad language of section 1128(i)(4) of the Act regardless of whether his guilty pleas and sentence have been withheld. When considering what constitutes a conviction for purposes of the I.G.s exclusion authority, I must look to the federal statute and not to a state law or its interpretation. I am bound by the Acts emphasis on whether an individual or entity has been determined to be guilty (whether by admission, nolo plea, or verdict), rather than by the mechanism employed by a court to impose judgment. Those found guilty of a criminal offense related to the delivery of an item or service under the Medicaid program cannot circumvent the federal exclusion provisions by availing themselves of a states creative procedures for disposition of cases. In Tore v. Department of Health and Human Services, No. 3:03-CV-7205 (Western District Ohio 2005); 2005 WL 2076657 (N.D. Ohio), the Court stated as follows:

The goals sought to be obtained under the Act reveal a purpose to preclude state authority in regulating the administration of any federal health care programs. Congress left no room for the States to supplement this law. Therefore this Court must turn to the Social Security Act's construction for interpretive guidance.

The exclusion provisions of the Act seek to preclude from federal health care programs untrustworthy individuals who pose a risk to the programs. By having engaged in conduct that constituted a felony under Mississippi law regarding the delivery of an item or service under a Medicaid program, Petitioner placed himself in the category of individuals for whom the exclusion provisions were intended. He is no less of a risk because acceptance of his guilty pleas and sentence thereon were withheld.

2. Petitioners five-year exclusion is mandated by the Act.

An exclusion under section 1128(a)(1) of the Act must be for a minimum mandatory period of five years, as set forth in section 1128(c)(3)(B) of the Act:

Subject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be not less than five years . . . .

When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. � 1001.2007(a)(2). Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicaid. As a result of Petitioners program-related conviction, the I.G. was required to exclude him for at least five years.

CONCLUSION

Sections 1128(a)(1) 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 he was convicted of a criminal offense related to the delivery of an item or service under Medicaid.

Jos� A. Anglada

Administrative Law Judge

1. First Indictment.

2. Second Indictment.