Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Victor Lee Johnson, |
DATE: June 14, 2001 |
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The
Inspector General
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Docket No.C-01-445 Decision No. CR782 |
DECISION | |
DECISION I deny the motion of the Inspector General (I.G.) to dismiss
the hearing request filed by Petitioner, Victor Lee Johnson. I grant the
I.G.'s motion for summary disposition and sustain the 10-year exclusion
that the I.G. imposed against Petitioner pursuant to section 1128(a)(1)
of the Social Security Act (Act). I. Background On October 31, 2000, the I.G. sent a notice to Petitioner
advising him that he was being excluded pursuant to section 1128(a)(1)
of the Act from participating in Medicare and other federally funded health
care programs for a period of 10 years. Petitioner requested a hearing
and the case was assigned to me for a hearing and a decision. The I.G.
moved to dismiss Petitioner's hearing request on the ground that he had
not filed it timely. The I.G. moved, alternatively, for summary disposition
in the case. At Part II of this decision I rule on the I.G.'s motion to
dismiss. At Part III, I rule on the I.G.'s motion for summary disposition. The I.G. submitted her brief in support of her motion
to dismiss and motion for summary disposition (I.G. Br.), which included
four proposed exhibits in support of the motions. I.G. Exs. 1- 4. Petitioner
submitted his response to the I.G.'s motions (P. Resp.), which included
six proposed exhibits. P. Exs. 1-6. The I.G. submitted a reply brief (I.G.
Reply). I am receiving all of the parties' proposed exhibits into evidence.
II. The I.G.'s motion to dismiss Petitioner's
hearing request. The I.G. moved to dismiss Petitioner's hearing request
on the ground that Petitioner filed it untimely. However, the I.G. now
concedes that Petitioner filed his hearing request timely. I.G. Reply.
I deny the I.G.'s motion to dismiss in light of that and in view of evidence
offered by Petitioner which shows that he filed his request timely. The
evidence submitted by Petitioner, which the I.G. does not contest, establishes
that Petitioner was incarcerated at a federal prison facility at the time
that the I.G. mailed her exclusion notice. P. Ex. 2. The I.G. mailed her
notice to a facility that had a name that was similar to that of the facility
at which Petitioner was incarcerated. The notice was not forwarded to
Petitioner, however. Thus, Petitioner did not become aware of the I.G.'s
exclusion determination until February 15, 2001, six days prior to filing
his hearing request. Id. III. Issues, findings of fact and conclusions
of law
The issues in this case are whether:
I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.
Petitioner opposes the I.G.'s motion for summary disposition
by arguing that there are disputed issues of material fact that may be
resolved only at an in-person hearing. I find that there are no disputed
issues of material fact and, consequently, summary disposition is appropriate. Petitioner does not take issue with any of the facts that
the I.G. asserts to be the basis for her exclusion determination. As I
discuss below, Petitioner concedes that he was convicted of a criminal
offense which is described by section 1128(a)(1) of the Act. He does not
dispute that there are facts which establish the aggravating factors that
the I.G. relies on to justify the length of the exclusion that the I.G.
imposed. Petitioner argues that there are additional facts which support his contention that the exclusion is unreasonable and which Petitioner should be given the opportunity to prove at an in-person hearing. P. Resp. at 8. However, as I discuss below, at Finding 3.b., none of these alleged facts are relevant to the issue of length of exclusion. Consequently, no basis exists for me to give Petitioner a hearing as to these alleged facts.
The undisputed material facts of this case establish that,
on May 16, 2000, Petitioner pled guilty to the federal crime of health
care fraud. I.G. Ex. 3, at 1. The particulars of his crime are spelled
out in a one-count criminal indictment that was filed against Petitioner
in the United States District Court for the Southern District of Georgia,
Augusta Division, on February 14, 2000. I.G. Ex. 2. Petitioner, a pharmacist,
knowingly and willfully executed a scheme to defraud the State of Georgia
Department of Medical Assistance (Georgia Medicaid program) and various
private insurers . Id. at 1. Petitioner's criminal scheme included
submitting false and fraudulent claims to the Georgia Medicaid program's
fiscal intermediary for the dispensing of prescription drugs which, in
fact, Petitioner did not provide. Id. at 3. Under section 1128(a)(1) of the Act, the I.G. is required
to exclude any individual who is convicted of a crime related to the delivery
of an item or service under a federally funded health care program. There
is no dispute in this case that Petitioner's crime is such a crime and,
therefore, a basis exists to exclude Petitioner.
The I.G. is required to exclude, for at least five years,
any individual who is excluded pursuant to section 1128(a)(1) of the Act.
Act, section 1128(c)(3)(B). The I.G. may exclude an individual for more
than five years where there exists evidence that establishes the individual
to be so untrustworthy as to necessitate an exclusion of more than five
years. There are specific factors which must be considered in
determining the length of any exclusion of more than five years that is
imposed pursuant to section 1128(a)(1). These factors are set forth at
42 C.F.R. � 1001.102. The regulation defines "aggravating" factors which
may justify an exclusion for more than five years. 42 C.F.R. � 1001.102(b).
The regulation also defines "mitigating" factors which, if present, may
serve to offset any established aggravating factors. 42 C.F.R. � 1001.102(c).
The regulation functions as rules of evidence governing the length of
exclusions. Only evidence that relates to one of the specified
aggravating or mitigating factors may be considered in deciding the length
of an exclusion. Evidence which does not relate to one of the factors
is not relevant and may not be considered. The I.G.'s exclusion determination will be upheld as reasonable
if it is based on evidence relating to aggravating or mitigating factors
and if it establishes a period of exclusion that falls within a range
of reasonable possible exclusions. However, I may modify an exclusion
determination if I find that it does not fall within a reasonable range
of possible exclusions. At Part a. of this Finding, I conclude that the I.G. established the presence of three aggravating factors. At Part b. I find that Petitioner failed to establish the presence of any mitigating factors. At Part c. I conclude that the 10-year exclusion imposed by the I.G. is not unreasonable.
The I.G. established the presence of three aggravating factors in this case. They are as follows:
Petitioner alleges a number of factors which he contends demonstrate that a 10-year exclusion is not reasonable. These include the following:
P. Resp. at 8. However, assuming the truth of these contentions, none of them comprise any of the mitigating factors that are identified at 42 C.F.R. � 1001.102(c). Therefore, these contentions are not relevant to the issue of whether the length of the exclusion is unreasonable and I may not consider them in evaluating the reasonableness of the I.G.'s exclusion determination.
The ultimate question that I must decide in any case where the length of an exclusion is at issue is whether the exclusion is reasonably designed to protect federally funded health care programs and the beneficiaries and recipients of those programs from an individual who has demonstrated by his conduct that he is untrustworthy. I find that, in this case, the exclusion is not unreasonable. The three aggravating factors proved by the I.G. show that Petitioner is a highly untrustworthy individual. He engaged in protracted criminal activity directed against the Georgia Medicaid program, a federally funded health care program. The impact of Petitioner's criminal activity was substantial as is measured by the amount of restitution he was ordered to pay. He stole a substantial amount of funds that had been dedicated by the program to pay for the health care of needy Georgia residents. |
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JUDGE | |
Steven T. Kessel Administrative Law Judge |
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