Decision No. CR624
Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
SUBJECT: JoAnn Fletcher Cash, Petitioner, |
DATE: November 3, 1999 |
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The Inspector General. | Docket No. C-99-243 |
DECISION | |
By letter dated October 30, 1998,
the Inspector General (I.G.), United States Department of Health and Human
Services, notified JoAnn Fletcher Cash (Petitioner), that she would be excluded
for a period of 15 years from participation in Medicare, Medicaid, Maternal
and Child Health Services Block Grant and Block Grants to States for Social
Services programs.(1) The I.G. imposed this
exclusion pursuant to section 1128(a)(1) of the Social Security Act (Act),
based on Petitioner's criminal conviction in the Superior Court of Glynn
County, State of Georgia, for Medicaid fraud. Petitioner filed a request for review of the I.G.'s action. 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 seven proposed exhibits (I.G. Ex. 1-7) and a reply brief. Petitioner submitted a brief and response. Petitioner also submitted four proposed exhibits (P. Ex. 1-4). Petitioner did not object to my receiving into evidence the I.G.'s proposed exhibits, and I receive into evidence I.G. Ex. 1-7. The I.G. did not object to my receiving Petitioner's proposed exhibits into evidence and I receive into evidence P. Ex. 1-4. I affirm the I.G.'s determination to exclude Petitioner from participating in Medicare and other federally funded health care programs, including Medicaid, for a period of 15 years. |
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APPLICABLE LAW | |
Under section 1128(a)(1) of the Act, the Secretary may 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. 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 period not less than five years.
See also, 42 C.F.R. � 1001.102(a).
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PETITIONER'S CONTENTIONS | |
Petitioner contends that the length of her exclusion is not reasonable. She asserts that the I.G.'s imposition of a 15-year exclusion is unfair insofar as the criminal court has imposed a prohibition on her employment in any position where she would be responsible for any financial management, thus precluding a reoccurrence of Petitioner's misconduct. Petitioner also asserts that such a lengthy exclusion would serve no useful purpose as she has been severely punished in the criminal matter. She also notes that at her age, such exclusion effectively prevents her from obtaining employment in her field. Finally Petitioner asserts that, in view of her punishment in the criminal proceeding both the 5-year mandatory exclusion and the 10-year extension are violations of Petitioner's Fifth Amendment Double Jeopardy protections of the United States Constitution.
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FINDINGS OF FACT AND CONCLUSIONS OF LAW | |
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DISCUSSION | |
Petitioner does not challenge that she is subject to exclusion under section 1128(a)(1) of the Act and I so find. Her conviction which was based on a guilty verdict constitutes a conviction under section 1128(i) of the Act. Next, it is required under section 1128(a)(1) of the Act that the crime at issue be related to the delivery of a health care item or service under the Medicare and/or Medicaid program. The record reflects that Petitioner, by being found guilty of Medicaid Fraud was found to have filed fraudulent claims for medical services with Medicaid. 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 has argued in her
brief that her 15 year exclusion should be reduced because it is unreasonable.
In her favor she maintains that she has otherwise had an unblemished record
and has submitted character references; that the criminal court has precluded
her from employment in a position where she would be responsible for financial
management; and that she has already received a severe punishment in the
criminal matter. Petitioner has the burden to show 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).
Her claims that she is an otherwise law-abiding person and has been punished
sufficiently in the criminal matter are not relevant. As Petitioner has
the burden concerning mitigating factors, I find that she 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 this 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
three aggravating factors. The three aggravating factors consist of the
following:
Considering Petitioner's 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 the
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 here. As the Appellate panel has
previously 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 her
involvement of at least 21 months in a scheme to defraud Medicaid. Her
fraud was persistent and deliberate, not random or impulsive. The extent
to which Petitioner persisted in defrauding Medicaid is established by
the large losses she caused the Medicaid program to incur. Her high level
of culpability is reflected in the lengthy prison sentence she received.
I therefore find that the 15-year exclusion is reasonable and appropriate.
Petitioner also raises a number
of challenges to the exclusion in her case. She asserts that the exclusion
is unfair because she has been severely punished in the criminal matter
and that the exclusion is unnecessary because, as part of the criminal
matter she is precluded from employment where she would be responsible
for any financial management. I find that such circumstances do not preclude
an exclusion action by the I.G. Petitioner also contends that such a lengthy
exclusion deprives her of her right to practice her profession but such
argument has been previously rejected in other cases. See Arlene
Elizabeth Hunter, DAB CR505 (1997). Petitioner also asserts that
in view of her punishment in the criminal matter both the 5-year mandatory
exclusion and the 10-year extension are in violation of the protection
against double jeopardy. I find no merit in such claim. In Greene v.
Sullivan, 731 F.Supp. 838 (E.D.Tenn. 1990), the court found that an
exclusion was intended to protect the Medicare and Medicaid programs by
barring excluded persons convicted of defrauding those programs from program
participation. The court found that these goals "are clearly remedial
and include protecting beneficiaries, maintaining program integrity, fostering
public confidence in the program, etc." and that the exclusion remedy
therefore is more analogous to the revocation of a professional license
for misconduct than it is punitive. Id., at 840. The court held
that there was no double jeopardy violation. This remedial purpose of
a program exclusion was affirmed in Manocchio v. Kusserow, 961
F.2d 1539 (11th Cir 1992). The court determined that the double jeopardy
clause was not violated by an exclusion, because the intent, as well as
the nature and effect, of the exclusion was remedial rather than punitive.
The court looked to the purposes served by the program exclusion and concluded
that the legislative history demonstrated that the primary goal of the
legislation was to protect present and future Medicare and Medicaid beneficiaries
from abusers of these programs. |
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CONCLUSION | |
I conclude that the I.G. was authorized to exclude Petitioner, pursuant to section 1128(a)(1) of the Act. I find that the 15-year exclusion is reasonable and I sustain it. |
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JUDGE | |
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FOOTNOTES | |
(1)In this decision, I use the term "Medicaid" to refer to these State health care programs. |
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