Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Jayne Hoffman, |
DATE: October 15, 2001 |
- v - |
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The
Inspector General
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Docket No.C-00-249
Decision No. CR826 |
DECISION | |
DECISION By letter dated December 30, 1999, the Inspector General
(I.G.) of the United States Department of Health and Human Services (DHHS)
notified Petitioner that she 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 10
years. The I.G. informed Petitioner that this action was taken under section
1128(a)(1) of the Act because of her conviction in the United States District
Court, Northern District of Georgia, Atlanta Division (District Court),
of a criminal offense related to the delivery of an item or service under
the Medicaid program. The I.G. imposed an exclusion period greater than five
years pursuant to 42 C.F.R. ��1001.102(b)(1), (2), (5), and (6) and based
on the following findings of the District Court:
Before this case was assigned to me it was assigned to
Administrative Law Judge Joseph K. Riotto. He discussed the case with
the parties in a March 21, 2000 telephone prehearing conference, which
he subsequently memorialized in an Order dated April 13, 2000. During
the telephone conference, the parties agreed that this case could be decided
based on written submissions and a schedule was established for the parties
to file briefs and documentary evidence. The I.G. filed a brief (I.G. Br.) and submitted five proposed
exhibits. These have been identified as I.G. Exs. 1 - 5. Petitioner filed
a brief (P. Br.) and submitted eight proposed exhibits. These have been
identified as P. Exs. 1 - 8. Neither party objected to the other parties'
submissions. In the absence of objection, I am admitting I.G. Exs. 1 -
5 and P. Exs. 1 - 8 into evidence. I grant the I.G.'s motion for summary disposition and
I am sustaining the I.G.'s determination to exclude Petitioner from participating
in Medicare, Medicaid, and all federal health care programs for a period
of 10 years. I base my decision on the documentary evidence, the applicable
law and regulations, and the arguments of the parties. I. Issues The issues in this case are:
II. Applicable Law and Regulations Sections 1128(a)(1) and 1128(c)(3)(B) of the Act make
it mandatory for any individual who has been convicted of a criminal offense
related to the delivery of a item or service under Medicare and Medicaid
to be excluded from participation in such programs for a period of at
least five years. 42 C.F.R. � 1001.102(b) contains factors that may be
considered to be aggravating and authorizes the I.G. to consider such
as a basis for lengthening the period of an exclusion. 42 C.F.R. � 1001.102(c)
contains factors that may be considered to be mitigating and authorizes
the I.G. to consider such as a basis for reducing the period of an exclusion.(1) III. Findings of Fact and Conclusions of Law 1. During the period relevant to this case, Petitioner
was licensed to practice nursing in the State of Georgia. I.G. Ex. 4. 2. On February 11, 1999, Petitioner was charged, along
with Mark D. Hoffman, in a Criminal Information of knowingly and willfully
making, and causing to be made, false statements and representations of
material fact in applications for payment under the State of Georgia Medicaid
and Medicare programs, in violation of Title 42, United States Code, Section
1320a-7b, and Title 18, United States Code, Section 2. I.G. Ex. 1. 3. On February 25, 1999, in the United States District
Court, Northern District of Georgia, Atlanta Division, Petitioner pleaded
guilty to the Criminal Information. I.G. Ex. 2. 4. On March 10, 1999, Petitioner surrendered her license
to the Georgia Board of Nursing and to the Department of Professional
Regulation in Illinois. I.G. Ex. 4; P. Ex. 6. 5. Petitioner's conviction was related to the delivery
of an item or service under the Medicaid program. I.G. Ex. 5. 6. On June 10, 1999, Petitioner was sentenced to home
confinement, probation, community service and to pay restitution, a special
assessment, and a fine. I.G. Ex. 3; I.G. Ex. 5; P. Ex. 7; P. Br. at 10. 7. The Secretary of DHHS has delegated to the I.G. the
authority to determine and impose exclusions pursuant to section 1128(a)(1)
of the Act. 8. On December 30, 1999, the I.G. notified Petitioner
that she was being excluded from participation in the Medicare, Medicaid,
and all federal health care programs for a period of 10 years pursuant
to section 1128(a)(1) of the Act. I.G. Ex. 5. 9. Aggravating factors are present, which warrant increasing
the exclusion for more than five years. See 42 C.F.R. � 1001.102(b). 10. There were no established mitigating factors present. 11. I am upholding the 10-year exclusion. IV. Discussion Section 1128(a)(1) requires that the Secretary of Health
and Human Services (Secretary) exclude an individual who has been convicted
under federal or State law of a criminal offense related to the delivery
of an item or service under Medicare or a State health care program.(2)
42 C.F.R. � 1001.101. Individuals excluded under section 1128(a)(1) of
the Act must be excluded for a period of not less than five years. Act,
section 1128(c)(3)(B). The mandatory minimum period of exclusion may be
increased with the existence of aggravating factors that are not offset
by any mitigating factors. 42 C.F.R. � 1001.102. The following factors may serve as a basis for lengthening the period of exclusion:
the acts that resulted in the conviction, or similar acts, had a significant adverse physical,mental or financial impact on one or more program beneficiaries or other individuals (42 C.F.R. �1001.102(b)(3)); in convictions involving patient abuse or neglect, the action that resulted in the conviction was premeditated, was part of a continuing pattern of behavior, or consisted of non-consensual sexual acts (42 C.F.R. � 1001.102(b)(4));
The Secretary has delegated to the I.G. the authority
to impose exclusions. 42 C.F.R. � 1001.401(a). As long as the length of
the exclusion imposed on Petitioner by the I.G. is within a reasonable
range, based on demonstrated criteria, I have no authority to change it.
Joann Fletcher Cash, DAB No. 1725, at 7 (2000) (citing 57
Fed. Reg. 3298, 3321 (1992)).
Petitioner was convicted under federal law of criminal
offenses related to the delivery of an item or service under the Medicaid
and Medicare programs. I.G. Ex.1; I.G. Ex. 5. Petitioner has admitted
her guilt. I.G. Ex. 2; P. Br. at 6. Section 1128(a)(1) of the Act applies
to any individual or entity convicted of a criminal offense that is related
to the delivery of an item or service under Medicare or any State health
care program. The record reflects that Petitioner knowingly and willfully
made, and caused to be made, false statements and representations of material
fact in applications for payment under the Medicaid and Medicare programs.
I.G. Ex. 1. As a result of Petitioner's false claim submissions, she received
monies from the Medicaid program to which she was not entitled. I.G. Ex.
3. The filing of fraudulent Medicare or Medicaid claims constitutes program-related
misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996); Rasaly
Saba Khalil, M.D., DAB CR353 (1995). I find that Petitioner's conviction,
as described above, is for crimes that are program-related, within the
meaning of section 1128(a)(1) of the Act. Nevertheless, in her submissions
to this tribunal, Petitioner seems to suggest that her problems were a
result of her dysfunctional childhood and mistreatment by her husband.
P. Ex. 1. This is not an appropriate forum for relitigating Petitioner's criminal convictions. The regulations state:
42 C.F.R. �1001.2007(d); see also Joann
Fletcher Cash, DAB No. 1725 (2000); Chander Kachoria, R.
Ph., DAB No. 1380, at 8 (1993). Section 1128(a)(1) of the Act mandates that the I.G. exclude
any individual or entity convicted of an offense which is related to the
delivery of an item or service under Medicare or any State health care
program. The I.G. must exclude Petitioner, inasmuch as Petitioner was
convicted of such offenses.
I find that the I.G.'s determination to extend Petitioner's
exclusion beyond the minimum 5 years to a 10-year term of exclusion was
appropriate. The evidence shows that at least four of the aggravating
factors are present and have been conceded by Petitioner. The mitigating
factors Petitioner asserts are not supported by the District Court's final
action. I.G. Exs. 1 and 2; P. Exs. 6 and 7; P. Br. at 19. By regulation, the Secretary established the criteria for determining the length of exclusions imposed pursuant to section 1128 of the Act. 42 C.F.R. � 1001.102 lists the aggravating and mitigating factors applicable to a section 1128(a) exclusion. The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory five-year period of exclusion. Evidence that does not pertain to one of the specific aggravating or mitigating factors is not relevant and may not be used to decide whether an exclusion of a particular length is reasonable.
Petitioner does not dispute that the acts which serve as the basis for her conviction resulted in a financial loss to the Medicaid and Medicare programs of more than $1,500. P. Br. at 10. Pursuant to Petitioner's Plea Agreement, Petitioner's sentence included restitution in the amount of approximately $115,000 of the $747,800 total restitution, the balance of which was attributed to her co-defendant. I.G. Ex. 2; P. Br. at 10. Approximately $32,000 was paid to the Medicaid program. Id. As demonstrated by the amount of restitution ordered, Petitioner's criminal acts clearly resulted in a financial loss to the Medicaid and Medicare programs of more than $1,500.
Petitioner does not challenge that this aggravating factor is applicable. P. Br. at 2, 6. In fact, the record reflects that Petitioner pleaded guilty to criminal acts covering a period from on or before September 13, 1994 until on or about September 29, 1997, a period of more than one year. I.G. Ex. 1.
Petitioner was sentenced to home confinement for a period of six months beginning September 1, 1999, probation for a term of two years, and 500 hours of community service. P. Ex. 7; see P. Br. at 11. While Petitioner argues that she was "free to come and go as she pleased within the Northern District of Georgia during daylight hours as long as she logged in her whereabouts," I find that Petitioner's sentence is well within the definition of "incarceration." Id.
On March 10, 1999, Petitioner tendered her license to
the Georgia Board of Nursing. P. Ex. 6. By a document dated June 5, 2000,
Petitioner was found to be in violation of the Nursing and Advanced Practice
Nursing Act and was given an administrative warning. P. Ex. 5. I find
that this is well within the definition of a prior administrative sanction.
Petitioner admits having engaged in illegal billing activities which were carried out while she was the office manager in her husband's practice. What she does argue is that the illegal billing activities were a direct result of her ignorance of billing procedures and her husband's tyrannical behavior. P. Br. at 4. However horrendous Petitioner's work environment was, the fact remains that she knowingly submitted inaccurate information to the Medicaid and Medicare programs in order to profit. I.G. Ex. 1; I.G. Ex. 2; P. Ex. 7. Hence, Petitioner was ordered to pay restitution.
Petitioner alleges that the record in the criminal proceedings, including the sentencing documents, demonstrates that the court determined that she had a mental, emotional or physical condition before or during the commission of the offense that reduced her culpability. Therefore, Petitioner is asserting that a mitigating factor, as delineated at 42 C.F.R. �1001.102(c)(2), has been established. Based on the evidence before me, I do not find that the record reflects this conclusion. Unless the District Court made an explicit finding on the record that mitigating factors exist, their weight or merit is irrelevant. Therefore, this contention is not relevant to the issue of whether the length of the exclusion is unreasonable.
The evidence relating to the established aggravating factors
demonstrates that Petitioner is untrustworthy. I did not find any mitigating
factors to compensate for the aggravating factors. The 10-year exclusion
is not unreasonable based on such evidence. IV. Conclusion I find that the I.G. was authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act. I find that a 10-year exclusion is reasonable. |
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JUDGE | |
Richard J. Smith Administrative Law Judge
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FOOTNOTES | |
1. Effective October 1, 2000, Title 42 of the Code of Federal Regulations was revised. In this matter, the controlling regulatory provisions are those on effect prior to October 2000, i.e., the version in effect at the time of the I.G.'s notice of exclusion dated December 30, 1999. See Robert Alan Spriggs, R.P.T., DAB CR718 (2000). 2. The term "State health care program" includes a State's Medicaid program. Section 1128(h)(1) of the Act; 42 U.S.C. � 1320a-7(h)(1). | |