Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Rickie Lewis, |
DATE: January 26, 2001 |
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The
Inspector General
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Docket No.C-99-314
Decision No. CR730 |
DECISION | |
By letter dated December 31, 1998, the Inspector
General (I.G.), United States Department of Health and Human Services, notified
Rickie Lewis (Petitioner) that he would be excluded for a period of 15 years
from participation in the Medicare, Medicaid, and all federal health care
programs (Medicare and Medicaid).(1) The
I.G. imposed this exclusion pursuant to section 1128(a)(1) of the Social
Security Act (Act), based on Petitioner's conviction in the Superior Court
of DeKalb County, State of Georgia, for a criminal offense related to the
delivery of an item or service under the Medicaid program. Petitioner filed a hearing request. The I.G. moved for
summary disposition. Because I have determined that there are no material
and relevant factual issues in dispute (the only matter to be decided
is the legal significance of the undisputed facts), I have decided the
case on the basis of the parties' written submissions in lieu of an in-person
hearing. The I.G. submitted a brief accompanied by five proposed exhibits
(I.G. Exs. 1-5) and a reply brief. Petitioner submitted a brief. Petitioner
did not object to my receiving into evidence the I.G.'s proposed exhibits,
and I receive into evidence I.G. Exs. 1-5. I affirm the I.G.'s determination to exclude Petitioner from participating in Medicare and Medicaid for a period of 15 years.
APPLICABLE LAW Under section 1128(a)(1) of the Act, the Secretary shall
exclude from participation in the Medicare and Medicaid programs 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. For purposes of program exclusion, section 1128(i)(2) of
the Act defines "conviction" as "when there has been a finding of guilt
against the individual or entity by a Federal, State, or local court."
Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under
section 1128(a)(1) of the Act shall be for a minimum period of not less
than five years. See also 42 C.F.R. � 1001.102(a). 42 C.F.R. � 1001.102(b) provides that the following factors
may be considered to be aggravating and a basis for lengthening the minimum
mandatory five-year period of exclusion:
42 C.F.R. � 1001.102(c) provides that only if there are
aggravating factors present which justify an exclusion longer than five
years, may the following factors be considered as mitigating and a basis
for reducing the period of exclusion to no less than five years:
The regulations at 42 C.F.R. � 1001.2007 set forth the
scope of my review in mandatory exclusion cases and provide that the only
issue for my review is whether the basis for the imposition of the sanction
exists. 42 C.F.R. � 1001.2007(a)(i) and (ii). That regulation also provides
that when the I.G.'s exclusion is based on the existence of a conviction,
that conviction and the basis for that underlying determination are not
subject to my review and Petitioner may not collaterally attack that determination
on substantive or procedural grounds before me. 42 C.F.R. � 1001.2007(d).
PETITIONER'S CONTENTIONS Petitioner contends that he was not guilty of the crime
for which he was convicted. He asserts that he had no responsibility for
the billing of the fraudulent claims to Medicaid. He further maintains
that the State did not demonstrate in the criminal proceedings that he
received any Medicaid reimbursements to which he was not entitled. He
also contends that, as most of the illegal billings occurred more than
four years before the criminal indictment, the criminal charges should
have been barred by the statute of limitations. Finally, Petitioner maintains
that the length of the exclusion is excessive.
FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCL) 1. During the period of time relevant to this case, Petitioner
was the owner, operator and chief executive officer of We Care Family
Services, Inc. I.G. Exs. 4 and 5. 2. We Care Family Services, Inc., provided psychological
services to Medicaid recipients and was enrolled as a provider in the
Georgia Medicaid program. I.G. Ex. 5. 3. On June 29, 1998, in the Superior Court of DeKalb County,
State of Georgia, a Grand Jury Bill of Indictment was issued charging
Petitioner with Conspiracy to Defraud the State of Georgia in violation
of O.C.G.A. section 16-10-21, Medicaid Fraud in violation of O.C.G.A.
section 49-4-146.1(b), and Theft by Taking in violation of O.C.G.A. section
16-8-2 in that Petitioner, in concert with others, from March 1, 1994
until April 3, 1995 submitted or caused claims to be submitted to Medicaid
for reimbursement for psychological services to Medicaid recipients that
were not medically necessary and in excess of the number of services that
were actually provided to such recipients. I.G. Ex. 5. 4. On August 15, 1998, a jury found Petitioner guilty
of Conspiracy to Defraud the State of Georgia, Medicaid Fraud, and Theft
by Taking in violation of Georgia law. I.G. Ex. 5. 5. On August 31, 1998, the Superior Court of DeKalb County
sentenced Petitioner to: confinement for five years with the possibility
of probation after two years for Count 1 and 10 years with the possibility
of probation for Count 2, to be served concurrently; and ordered him to
pay court costs and restitution in the amount of $209,000. I.G. Ex. 5. 6. On December 31, 1998, Petitioner was notified by the
I.G. that he was being excluded from participation in the Medicare and
Medicaid programs for a 15-year period pursuant to section 1128(a)(1)
and section 1128(c)(3)(B) of the Act. I.G. Ex. 1. 7. Under section 1128(a)(1) of the Act, the I.G. is required
to exclude 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. 8. Where the I.G. determines to exclude an individual
pursuant to section 1128(a)(1) of the Act, the term of exclusion will
be, at minimum, a period of five years, and the I.G. is authorized to
increase the length of the term of exclusion beyond five years if any
of the aggravating factors set forth in 42 C.F.R. � 1001.102(b) are present. 9. Petitioner's criminal conviction constitutes a conviction
within the scope of section 1128(i) (2) of the Act.
10. Petitioner's conviction for Conspiracy to Defraud
the State of Georgia, Medicaid Fraud, and Theft by Taking is related to
the delivery of an item or service under the Medicaid program within the
meaning of section 1128(a)(1) of the Act. 11. The I.G. is required to exclude Petitioner pursuant
to section 1128(a)(1) of the Act. 12. The I.G. established the existence of aggravating
factors under 42 C.F.R. �� 1001.102(b)(1), (2), (5), and (7) in this case. 13. The Petitioner did not prove the presence of any mitigating
factors pursuant to 42 C.F.R. � 1001.102(c) which may be considered as
a basis for reducing the exclusionary period to no less than five years. 14. The aggravating factors established by the I.G. prove
Petitioner to be untrustworthy. 15. A 15-year exclusion of Petitioner is reasonable and
appropriate.
DISCUSSION I find that the I.G. has demonstrated that Petitioner
is subject to exclusion under section 1128(a)(1) of the Act. The first
statutory requirement for the imposition of a mandatory exclusion pursuant
to section 1128(a)(1) of the Act is that the individual or entity in question
be convicted of a criminal offense. I find that this requirement is met
in Petitioner's case as he was found guilty of Conspiracy to Defraud the
State, Medicaid Fraud, and Theft by Taking after a jury trial. The term
"convicted" is defined in section 1128(i) of the Act. This section provides
that an individual will be considered to have been convicted of a criminal
offense -
The finding of guilt by jury constitutes a conviction
under section 1128(i) (2) of the Act. On August 15, 1998, Petitioner was
found guilty by the jury of all charges. FFCL 4. See also
42 C.F.R. � 1001.2; Alicia Pinto, DAB CR369 (1995). Next, section 1128(a)(1) of the Act requires that the
crime at issue be related to the delivery of an item or service under
the Medicaid program. The record reflects that Petitioner was found guilty
of Conspiracy to Defraud the State, Medicaid Fraud, and Theft by Taking,
in that he filed or caused to be filed fraudulent claims for psychological
services with Medicaid. The record reflects that Petitioner was the owner
and operator of We Care Family Services, Inc., which offered psychological
services to Medicaid recipients. The record further reflects that Petitioner
was responsible for the clinic's billings to Electronic Data Systems,
Inc., the financial agent for the Georgia Medicaid program. The record
establishes that Petitioner submitted or caused claims to be submitted
for reimbursement for psychological services to Medicaid recipients that
were not medically necessary and in excess of the number of services that
were actually provided to the recipients. FFCL 3. The filing of fraudulent
Medicaid claims has been held to constitute clear program-related misconduct.
Alan J. Chernick, D.D.S., DAB CR434 (1996). Petitioner asserts that he was not involved in billing
the relevant claims, that it was not demonstrated that he received any
payment to which he was not entitled, and that the statute of limitations
had expired, which should have prevented the prosecution of the claims
at issue. I note that the Indictment of which Petitioner was found guilty
charges in paragraphs 4 and 5 that Petitioner was involved in the fabrication
of the claims, and that paragraph 7 of that document asserts that Petitioner
received payment from Medicaid to which he was not entitled. These allegations
undermine Petitioner's denials. Moreover, Petitioner's assertions constitute
a collateral attack on his conviction, which is prohibited by 42 C.F.R.
� 1001.2007(d). The Departmental Appeals Board (DAB) has previously held
that collateral attacks are ineffectual arguments in the context of an
exclusion proceeding because the I.G. and the Administrative Law Judge
are not permitted to look beyond the fact of conviction. Paul R. Scollo,
D.P.M., DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994);
Peter J. Edmondson, DAB No. 1330 (1992). Petitioner has argued in his brief that his 15-year exclusion
should be reduced. It is Petitioner's burden to prove the existence of
mitigating factors. James H. Holmes, DAB CR270 (1993). Petitioner
has not established any of the mitigating factors listed at 42 C.F.R.
� 1001.102(c). He asserts that he was not involved in the scheme as he
did not have responsibility for billing, but such claim is not within
the scope of the regulations. As Petitioner has the burden concerning
mitigating factors, I find that he has not met such burden and conclude
that Petitioner has not proved the existence of any mitigating factors. In determining whether the length of an exclusion is reasonable,
it is the responsibility of the administrative law judge to consider and
evaluate all of the relevant evidence brought to bear in a case. The regulation
at 42 C.F.R. � 1001.102(b) sets forth the aggravating factors which may
be considered in determining the length of an exclusion. I find that the
I.G. proved the presence of four aggravating factors. The four aggravating
factors consist of the following:
Considering Petitioner's lack of evidence of mitigation,
and the I.G.'s evidence of aggravating factors, I find that the aggravating
factors in Petitioner's case make the imposition of a 15-year exclusion
reasonable. I note that in evaluating these factors, it is not the mere
presence of a greater number of aggravating factors which forms the basis
for my decision. As the DAB held in Barry D. Garfinkel, M.D., DAB
No. 1572 (1996), it is the quality of the circumstances, whether aggravating
or mitigating, which is to be dispositive in analyzing evidence of these
factors. Garfinkel, at 31. In this case, the aggravating factors established by the
I.G. prove Petitioner to be an untrustworthy individual. Petitioner's
lack of trustworthiness is established by his actions in defrauding Medicaid
on multiple occasions over a 13-month period, resulting in a substantial
financial loss to that program. His fraud was recurrent and deliberate,
not random and impulsive. I note also that the losses in Petitioner's
case were much greater than the regulatory minimum. In this regard, I
note the substantial amount of restitution that Petitioner was ordered
to pay. I also note that the record further establishes that Petitioner
was a central actor in the criminal scheme. The high level of his involvement
is underscored by the period of incarceration to which he was sentenced.
CONCLUSION I conclude that the I.G. was authorized to exclude Petitioner, pursuant to section 1128(a)(1) of the Act. I find that a 15-year exclusion is reasonable. |
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JUDGE | |
Joseph K. Riotto Administrative Law Judge
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FOOTNOTES | |
1. In this decision, I use the term "Medicaid" to refer to all of the federally-funded State health care programs. | |