SUBJECT:

Daniel Coughlin,

Petitioner,

The Inspector General.

A. Findings of Fact

1. On October 12, 2004, Petitioner was convicted in the 19^th Judicial District Court, Parish of East Baton Rouge, State of Louisiana, pursuant to his guilty plea, of one count of theft in violation of Louisiana Revised Statute 14:67, for receiving pay for home health skilled nursing services that he did not actually provide by causing his employer to file claims for those services with the state Medicaid program. I.G. Ex. 1.

B. Conclusions of Law

1. Petitioner's request for hearing was timely and I have jurisdiction.

2. Summary judgment is appropriate.

3. Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program within the meaning of section 1128(a)(1) of the Act.

4. There is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) of the Act.

5. The Secretary has no discretion to exclude Petitioner under the permissive exclusion provisions of section 1128(b) of the Act when section 1128(a) applies.

C. Issues

The Secretary of the Department of Health and Human Services (the Secretary) has by regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and,

Whether the length of the exclusion is unreasonable.

42 C.F.R. � 1001.2007(a)(1).

In this case, there is no issue as to the reasonableness of the proposed period of exclusion as it is the minimum period of five years mandated by the Act. The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. � 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. � 1005.15(b) and (c).

D. Applicable Law

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. � 1320a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction.

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in Medicare and Medicaid programs any individual convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. � 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

E. Analysis

1. Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing. The right to hearing before an ALJ is accorded to a sanctioned party by 42 C.F.R. � 1005.2 and the rights of both the sanctioned party and the I.G. to participate in a hearing are specified in 42 C.F.R. � 1005.3. Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration. 42 C.F.R. � 1005.6(b)(5). The ALJ may also resolve a case, in whole or in part, by summary judgment. 42 C.F.R. � 1005.4(b)(12). Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); Thelma Walley, DAB No. 1367 (1992); see also, New Millennium CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000).

There are no genuine issues of material fact in dispute in this case. Petitioner has not responded to the I.G.'s motion for summary judgment. I treat Petitioner's failure to file a response as a waiver of the right to respond consistent with the authority granted me by 42 C.F.R. � 1005.14. In his request for hearing, Petitioner requests that he be excluded for a period of one year under the permissive exclusion provisions of section 1128(b) of the Act rather than the mandatory exclusion provisions of section 1128(a). Petitioner made a similar argument during the telephonic prehearing conference. Order dated November 29, 2005. Petitioner has never disputed that he was convicted and sentenced as indicated in Findings of Fact 1 and 2. As a matter of law the Secretary must exclude pursuant to section 1128(a) of the Act when the mandatory exclusion provisions are applicable, as they are in this case. Also as a matter of law, there is no question that the Act requires a minimum five year period of exclusion when exclusion is mandatory under section 1128(a). There are no issues of material fact in dispute, this case must be resolved as a matter of law, and summary judgment is appropriate.

2. There is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) of the Act.

The I.G. cites section 1128(a)(1) of the Act as the basis for Petitioner's mandatory exclusion. The statute provides:

(a) MANDATORY EXCLUSION. - The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1) Conviction of program-related crimes. - Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

The Act requires the Secretary to exclude from participation an individual or entity convicted of a program-related crime. The Act does not grant the Secretary the discretion to impose a permissive exclusion under section 1128(b) rather than a mandatory exclusion under section 1128(a). Congress requires the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs anyone: (1) convicted of a criminal offense; (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service occurred in connection with Medicare or Medicaid. The Act does not require that an individual or entity be convicted of a felony. Pursuant to section 1128(i), a person is convicted of a criminal offense when a judgement of conviction is entered against the individual, when there has been a finding of guilt, when a plea of guilty or no contest is accepted by the court, or when the individual has entered into a first offender, deferred adjudication, or similar program where judgment of conviction is withheld, regardless of whether the record is ultimately expunged.

Petitioner does not dispute that he was convicted of a criminal offense within the meaning of section 1128(i) of the Act. The conviction, for theft, was based on Petitioner's receipt of pay for home health skilled nursing services he did not actually provide by causing his employer to file claims for those purported services with the Louisiana Medicaid program. Petitioner's conviction is thus related to the delivery of an item or service under a state Medicaid program. As a matter of law, the Secretary is required to exclude individuals pursuant to section 1128(a) when that section is applicable and it is applicable in this case.

3. Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of exclusion under section 1128(a) is five years.

Petitioner has not disputed that the minimum period of an exclusion pursuant to section 1128(a)(1) is five years, as mandated by section 1128(c)(3)(B), if I determine Petitioner is subject to mandatory exclusion. I have found there is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) and the minimum period of exclusion is thus five years.

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of five years, effective May 19, 2005, 20 days after the April 29, 2005 I.G. notice of exclusion.

Keith W. Sickendick

Administrative Law Judge