Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
Vincent Bennett, a/k/a Vincent Bernard Bennett, |
DATE: February 11, 2002 |
- v - |
|
The
Inspector General
|
Docket No.C-01-542
Decision No. CR871 |
DECISION | |
DECISION I grant the I.G.'s motion for summary disposition, and sustain the determination of the I.G. to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of five years.(1) I find that a basis exists for Petitioner's exclusion pursuant to section 1128(a)(1) of the Social Security Act (Act). I further find that the I.G.'s exclusion for a minimum period of five years is mandatory. I. Background By letter dated February 28, 2001, the I.G. notified Petitioner
that he was being excluded from participation in Medicare, Medicaid, and
all federal health care programs for a period of five years. The I.G.
imposed this exclusion pursuant to section 1128(a)(1) of the Act, based
on Petitioner's conviction in the State of Michigan, Third Judicial Circuit
Court, Wayne County, for a criminal offense related
to the delivery of an item or service under the Medicaid program.(2) By letter dated March 27, 2001, Petitioner requested a
hearing before an administrative law judge (ALJ). The case was assigned
to me for hearing and decision. On May 14, 2001, I convened a prehearing telephone conference.
During the conference, Petitioner advised of his efforts to retain legal
counsel.(3) Petitioner further suggested
that a briefing schedule be established. With the parties' agreement,
a briefing schedule was established. On June 25, 2001, the I.G. submitted her brief (I.G. Br.),
which was accompanied by four proposed exhibits (I.G. Exs. 1-4). Petitioner's
response brief (P. Br.) was submitted on November 20, 2001. The I.G. did
not file a reply brief. Petitioner did not object to my receiving into
evidence the I.G.'s proposed exhibits, and therefore, I receive into evidence
I.G. Exs. 1-4. I base my decision in this case on the parties' arguments,
the exhibits, and the applicable law. II. Applicable Law 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 an item or service under Medicare or Medicaid
to be excluded from participation in such programs for a minimum period
of five years. III. Issues, findings of fact and conclusions of law
The issue in this case is whether a basis exists to exclude Petitioner.
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
and petitioned for an in-person hearing. I find that there are no disputed
issues of material fact and, consequently, summary disposition is appropriate. Petitioner stipulates that he was excluded from Medicaid participation by the I.G., and that the exclusion was based upon his conviction for Medicaid fraud. P. Br. at 1. Petitioner does argue that:
Id. at 2. However, as I discuss below, at Finding 2, none of these alleged circumstances are relevant to the issue of whether a basis exists for the exclusion. Consequently, no basis exists for me to give Petitioner a hearing as to these alleged facts.
From August 1996 through February 1997, Petitioner was
employed at a substance abuse treatment facility as a counselor. I.G.
Ex. 4. The undisputed material facts of this case establish that, on July
21, 2000, Petitioner pled guilty to the one count of submitting a false
claim to the Michigan Medicaid program. I.G. Ex. 3. The particulars of
his crime are delineated in an 18-count felony complaint that was filed
against Petitioner in the State of Michigan, Third Judicial Circuit Court,
Wayne County, on June 2, 1999. I.G. Ex. 4. The complaint charged that,
among other things, Petitioner knowingly submitted false claims to the
Michigan Medicaid program for substance abuse counseling which, in fact,
Petitioner did not provide. Id., at 2-4. Petitioner does not contend
that he did not enter into a plea agreement. Instead, he argues that the
plea instrument itself is flawed in that he was not adequately advised
of the consequences (i.e. his exclusion from Medicaid participation) that
would result from his acceptance of the plea agreement. P. Br. at 2. Therefore,
based upon Petitioner's contentions, he concludes that his constitutional
rights have been violated. Petitioner's guilty plea and the Court's acceptance of the plea satisfy the definition of "conviction" under section 1128(i)(3) of the Act which states in relevant part:
It is the fact of the conviction for a criminal offense
which establishes a basis for an exclusion. I do not have the authority
to delve into the intricacies behind the conviction, and Petitioner may
not use the administrative appeals process set forth at 42 C.F.R. Part
1005 et seq. to obtain redress for his alleged constitutional harms. See
Serban I. Cocioba, M.D., DAB CR654 (2000) (finding no jurisdiction
to rule on constitutional claims); Morton Markoff, D.O., DAB CR538
(1998) (administrative law judges lack authority to decide constitutional
claims). Petitioner was "convicted" within the meaning of section 1128(a)(1) of the Act of a criminal offense related to the delivery of an item or service under the Medicaid program. 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 the Medicaid program. There is no dispute in this case that Petitioner's crime is such a crime and, therefore, a basis exists to exclude Petitioner.
An exclusion of at least five years is mandatory for any
individual or entity that has been convicted of a criminal offense that
is related to the delivery of an item or service under Medicare or under
any State health care program. Therefore, the question of "reasonableness"
is not a subject for consideration. See 42 C.F.R. � 1001.2007(a)(2).
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). IV. Conclusion I find that the I.G. was authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act. I further find that a minimum five-year exclusion is mandatory. Therefore, I sustain the I.G.'s determination to exclude Petitioner from participation in the Medicaid program for a five-year period. |
|
JUDGE | |
Marion T. Silva Chief Administrative Law Judge |
|
FOOTNOTES | |
1. "Federal health care program" is defined in section 1128(f) of the Act and includes any State health care program, as defined in section 1128(h) of the Act. 2. In this decision, I use the term "Medicaid" to refer to any State health care program which receives federal funds as defined by section 1128(h) of the Act. 3. On October 31, 2001, Attorney Douglas Monds entered notice of appearance as counsel for Petitioner. | |