Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of: David S. Muransky,
D.C.,
Docket No. C-229
Petitioner,
Decision No. 1227
- v. -
The Inspector
General.
DATE: February 13, 1991
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION
David S. Muransky, D.C., (Petitioner) requested review by the
Appellate
Panel of a September 5, 1990 decision by Administrative Law Judge
Steven
T. Kessel (ALJ). The decision sustained the determination of
the
Inspector General (I.G.) to exclude Petitioner from participation in
the
Medicare program for five years and to direct his exclusion from
state
health care programs, such as Medicaid, for the same length of
time.
Petitioner's exclusions were based on section 1128(a)(1) of the
Social
Security Act (Act), which provides as follows:
(a) Mandatory Exclusion.--The Secretary shall exclude
the
following individuals and entities from participation in
any
program under title XVIII and shall direct that the
following
individuals and entities be excluded from participation in
any
State health care program . . . .
(1) Conviction of program-related
crimes.--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 further provides:
In the case of an exclusion under subsection (a), the
minimum
period of exclusion shall be not less than five years . . .
.
Petitioner is a chiropractor practicing in Florida. During 1984
and
1985 the Federal Bureau of Investigation and the I.G. conducted a
joint
investigation of Medicare claims submitted by several
chiropractors,
including Petitioner, in south Florida. The
investigation of Petitioner
was completed in 1985. On September 27,
1985 the carrier for the
Medicare Part B Insurance program in Florida, Blue
Cross and Blue Shield
of Florida, Inc., notified Petitioner that payments on
all assigned
Medicare claims submitted by him would be suspended immediately
because
of evidence of misrepresentation of claims.
As a result of the same FBI-I.G. investigation, two other
chiropractors
were convicted and/or pled guilty to submitting false claims in
1987.
Later that year the I.G. subsequently excluded these chiropractors
from
participation in the Medicare program.
It was not until November 15, 1988, however, that Petitioner was
charged
in a criminal information in the United States District Court for
the
Southern District of Florida with four counts of unlawfully devising
a
scheme and artifice to defraud and to obtain money from the
Medicare
program through its carrier, Blue Shield, by means of false
and
fraudulent pretenses, representations, and promises. The basis for
the
charges was that in 1984 and 1985 Petitioner had submitted claims
for
spinal manipulations which Petitioner did not perform. On March
31,
1989, the United States District Court for the Southern District
of
Florida entered a judgment showing that Petitioner pled guilty to
all
four counts. The court sentenced Petitioner to three years
probation,
and ordered him to pay a fine of $4,000, restitution of $245.76,
and a
special assessment fee of $50.
On June 26, 1989, the I.G. notified Petitioner that, as a result of
his
conviction of a criminal offense related to the delivery of an item
or
service under Medicare, the Department of Health and Human Services
was
required to exclude him from eligibility in the Medicare and
Medicaid
programs. The I.G. also notified Petitioner that he had the
opportunity
to provide information the I.G. should consider in establishing
the
period of exclusion. Petitioner supplied such information on July
31,
1989. On January 19, 1990, the I.G. notified Petitioner that due to
his
conviction he was excluded from participation in the Medicare
and
Medicaid programs for a period of five years.
On appeal to this Panel, Petitioner alleged that his exclusion
was
inequitable and unreasonable. Petitioner contended that because of
an
unexplained delay by the United States Attorney in prosecuting
the
charges against him, he unfairly received a five-year exclusion
while
other chiropractors convicted through the same investigation
were
speedily prosecuted, received three-year exclusions, and have
now
resumed practice under the Medicare program. Petitioner further
claimed
that the severity of his exclusion was disproportionate to the
small
monetary damages the Medicare program incurred and that his actions
did
not threaten or harm the beneficiaries of the Medicare
program.
Petitioner asserted that the I.G.'s imposition of a five-year
exclusion
failed to distinguish between different levels of culpability and
was
therefore unreasonable. Petitioner also argued that his due
process
rights had been violated since the imposition of a five-year
exclusion
in 1990 after he had already been suspended by the Medicare
state
carrier in 1985 is arbitrary and capricious.
Based on our review of the ALJ's decision and the record below,
the
parties' written submissions before us, and the following analysis,
we
conclude that the ALJ's decision was correct. In sustaining the
I.G.'s
determination to exclude Petitioner, the ALJ made 16 findings of
fact
and conclusions of law (FFCLs). Although neither Petitioner nor
the
I.G. specifically challenged any of these FFCLs before this Panel,
we
have determined that FFCL No. 12 contains an unprejudicial factual
error
relating to a date. We therefore amend FFCL No. 12 to read as
follows:
12. On January 19, 1990, the I.G. notified Petitioner that
he
was being excluded from participation in the Medicare
and
Medicaid programs as a result of his conviction of a
criminal
offense related to the delivery of an item or service
under
Medicare. Stipulation of Facts, No. 10.
We affirm and adopt all the other FFCLs as stated in the ALJ's
decision.
We find that there was undisputed evidence in the record before the
ALJ
to support Petitioner's mandatory exclusion from the Medicare
and
Medicaid programs and that Petitioner's arguments raise
collateral
matters that the ALJ properly refused to consider or are without
merit.
I. Any delay in the prosecution of Petitioner is irrelevant to
the
merits of his exclusion by the I.G.
Petitioner alleged that the length of his exclusion, five years,
resulted
from a delay by the United States Attorney in prosecuting his
case.
Petitioner referred to other chiropractors who had been speedily
prosecuted
and who received, as a result of their convictions,
exclusions of only three
years. Petitioner contended that the Assistant
United States Attorney's
four-year delay in prosecuting him resulted in
his receiving a five-year
exclusion because of an intervening change in
section 1128 of the Act.
According to Petitioner, this disparity of
treatment by the I.G. in the
duration of the exclusion is inequitable.
The two other chiropractors cited by Petitioner in his brief before
this
Panel received three-year exclusions from the I.G. in 1987. Prior
to
the enactment of the Medicare and Medicaid Patient and
Program
Prevention Act of 1987, Public Law 100-93, which amended section
1128(a)
of the Act, there was no specified minimum period for the duration of
an
exclusion. The other two chiropractors were convicted and
subsequently
excluded under this former version of section 1128.
Petitioner's
conviction in 1989, on the other hand, placed him under the
provisions
of the new version of section 1128(a) with its mandatory minimum
period
of exclusion of five years.
Before the ALJ, Petitioner did not explicitly make this same
argument.
There Petitioner argued that the I.G.'s imposition of a
five-year
exclusion was an unconstitutional retroactive application of the
new
version of section 1128(a) to the facts of his particular case. The
ALJ
found that, while the events which led to Petitioner's
conviction
occurred in 1984 and 1985, Petitioner was not convicted until
March 31,
1989. The ALJ further found that the new version of section
1128(a) was
not retroactively applied to Petitioner as Petitioner was in
fact
convicted after Congress amended section 1128(a). Therefore, the
ALJ
concluded, the I.G.'s determination to assess a five-year exclusion
was
authorized by Congress.
While Petitioner did not re-assert this argument on the retroactivity
of
the new version of section 1128 before us, we consider his position
that
delay by the prosecutors unfairly placed him under the new version
of
section 1128(a) to be in the same vein. We view
Petitioner's
contentions that some delay by his prosecutors led to a longer
period of
exclusion than received by others as an attack on the
process
surrounding his conviction that is not properly before this
Panel. This
Board has previously held that arguments before a Panel
about the
process leading to a petitioner's criminal conviction are
completely
irrelevant to an exclusion proceeding. Andy E. Bailey, DAB
No. 1131
(1990), p. 3.
There is nothing in the record before us to show that the I.G. was in
any
way responsible for any delay that might have occurred in
prosecuting
Petitioner. 1/ Within three months of Petitioner's
conviction in March
1989, the I.G. notified Petitioner of his imminent
exclusion. After
receiving Petitioner's arguments concerning the
possible severity of any
exclusion, the I.G., in a timely fashion,
notified Petitioner of his
exclusion. We thus find no unreasonable
delay by the I.G. in its
treatment of Petitioner. If Petitioner wishes
to pursue this argument,
he should find a more suitable forum. See
Bailey, p. 3, n. 3.
II. The duration of the exclusion was proper.
Petitioner contended that a five-year exclusion was unreasonable in
light
of the circumstances of his case. Petitioner claimed that the ALJ
had
the authority to decide the reasonableness of the length of an
exclusion
based on the facts of a particular case. Petitioner stated
that the
amount of the billing errors was a small sum ($245.76), his
offenses did not
threaten the health or safety of Medicare
beneficiaries, and the offenses
arose because he signed forms prepared
by his staff. Petitioner
asserted that the I.G.'s enforcement of
violations of Medicare regulations
fails to distinguish between major
violations, such as gross negligence, and
minor levels of culpability,
such as billing errors. Petitioner argued
that a five-year exclusion
was grossly disproportionate to his offense,
especially in light of his
prior unblemished record and high standing in his
community.
While not explicitly making the argument, Petitioner here seemed to
be
suggesting that the ALJ should have invoked the permissive
exclusion
sanction provided for in section 1128(b) of the Act. Under
this
provision there is no specified minimum period of exclusion for
certain
specified convictions. Yet, in referring to the above listed
allegedly
mitigating circumstances, Petitioner admitted that he had
stipulated
that there is a statute requiring a mandatory five-year exclusion
for
convictions relating to the type of offenses to which he pled
guilty.
This statute, section 1128(c) of the Act, does not provide for
any
discretion by the I.G. in establishing the minimum length of
an
exclusion. For a conviction related to the delivery of a Medicare
item
or service, "the minimum period of exclusion shall be not less than
five
years . . . ." Contrary to Petitioner's assertions, the ALJ
has no
authority to lower this minimum period of exclusion. The ALJ could
not
have considered whether a permissive exclusion under section
1128(b)
would have been appropriate in lieu of a mandatory exclusion
under
section 1128(a). See, e.g., Jack W. Greene, DAB No. 1078 (1989),
pp.
9-11, aff'd, 731 F.Supp. 838 (E.D. Tenn. 1990).
We find nothing disproportionate in the duration of the exclusion
imposed
on Petitioner. Petitioner pled guilty to submitting bills for
services
he did not perform. Congress amended section 1128 to require
excluding
such individuals from participating in Medicare and Medicaid.
The goal was
not only to protect program beneficiaries, but also to
protect the federal
fisc. See, e.g., Napoleon S. Maminta, DAB No. 1135
(1990), pp.
12-15. As to Petitioner's claim that the I.G.'s imposition
of a
five-year exclusion fails to distinguish between major and minor
violations
of the Medicare regulations, we consider it sufficient to
note that the
five-year period is the minimum exclusion and that in
cases involving major
violations the I.G. has the discretion to exclude
a provider for any greater
period of time.
Accordingly, we find no error in the ALJ's affirmation of
Petitioner's
five-year exclusion.
III. Petitioner's suspension by the state Medicare carrier does
not
prevent the I.G. from excluding him from participation in the
Medicare
and Medicaid programs.
Petitioner did not deny that he was convicted of a criminal
offense
related to the delivery of an item or service under the
Medicare
program. Rather, Petitioner's argument against his
exclusion is that
he had already been suspended by Blue Shield for five
years, since
September 1985, for the same acts that brought about his
exclusion.
According to Petitioner, a mandatory exclusion of an additional
five
years is unreasonable on its face and patently inequitable in light
of
the exclusions received by the other convicted
chiropractors.
Petitioner claimed that the remedial purpose of an exclusion
had already
been served by Petitioner's suspension from the Medicare program
by Blue
Shield for over five years. He maintained that any further
barring of
his property interest in participation in the Medicare program
would
violate the due process clause of the fifth amendment to the
United
States Constitution. Petitioner contended that there is an abuse
of due
process and equal protection when the government withholds payments
for
an unlimited number of years, without affording him a hearing, and
then
seeks to impose an additional five-year exclusion.
Petitioner apparently does not grasp the distinction between a
suspension
by a state Medicare carrier of the payment of Medicare claims
and an
exclusion from the Medicare program. When Blue Shield
suspended
Petitioner in September 1985, the effect of that suspension was
the
deferral of payment on any current or future assigned claims
by
Petitioner for rendered Medicare services pending investigation of
the
circumstances giving rise to the suspension. See 42 C.F.R.
405.371(b).
Blue Shield did not bar Petitioner from continuing to treat
Medicare
beneficiaries or state that it would stop processing any
suspended
claims. Blue Shield would have ultimately made payment on
assigned
claims filed during the period of the suspension once it was
determined
that the claims were for necessary covered services and that
no
overpayment to Petitioner would result from payment of the claims.
From
Petitioner's arguments we assume that once he received notice of
his
suspension by Blue Shield, he ceased, at his own choosing, to
provide
treatment to Medicare beneficiaries. See Petitioner's Exhibit
F. He
was, however, under no compulsion, legal or otherwise, to stop
treating
Medicare beneficiaries.
An exclusion, on the other hand, effectively bars Petitioner
from
participating in the Medicare program and precludes payment for
any
Medicare claims, irrespective of the nature or the necessity of
the
services rendered. While prior to the 1987 amendments, the statute
and
the regulations did refer to suspension from participation in
the
Medicare program, it was clearly intended to be a different action
from
that contemplated by 42 C.F.R. 405.371(b).
Petitioner's position that the I.G.'s imposition of a five-year
exclusion
on top of his suspension is in effect barring Petitioner from
participation
in the Medicare program for 10 years is, therefore,
incorrect.
Petitioner's non-participation in the Medicare program from
the point of his
suspension by Blue Shield to the date of his exclusion
was a voluntary
decision by Petitioner. If Petitioner was "barred" from
participating
in the Medicare program while he was under suspension by
Blue Shield, it was
Petitioner himself who did the barring.
We see nothing unreasonable or inequitable in the I.G.'s exclusion
of
Petitioner. The I.G. is not barring Petitioner from participation
in
the Medicare program for 10 years. The I.G. is merely carrying out
the
specific directive of section 1128 of the Act that a criminal
conviction
related to the delivery of a Medicare item or service mandates
a
five-year exclusion. By his plea of guilt to submitting
fraudulent
Medicare claims, Petitioner must be excluded from the Medicare
program
for the minimum period of five years. The fact that this
five-year
exclusion will ensue immediately after Petitioner has
voluntarily
withdrawn himself from the Medicare program for approximately
five years
simply has no bearing on the legality of the I.G.'s action.
Even if we
have the authority to decide constitutional claims, it is obvious
that
there is no basis for concluding that any of Petitioner's
constitutional
rights were violated by the I.G.'s imposition of an exclusion.
2/
Conclusion
Based on the foregoing analysis, we affirm the ALJ's decision
upholding
the exclusion of Petitioner for five years. In so doing, we
affirm each
and every one of the ALJ's findings of fact and conclusions of
law (with
FFCL No. 12 amended as specified) and adopt them as our own.
___________________________
Theodore J.
Roumel U.S. Public
Health Service
___________________________
Alexander G.
Teitz
___________________________ Judith
A.
Ballard Presiding Panel
Member.1.
Petitioner in his reply
cited Thomas C.
Chestney, D.M.D.,
DAB Civ. Rem. C-53
(1989),
apparently to support his argument
that the exclusion period should not
be
unduly prolonged. This
decision was
discussed at length
in Samuel W. Chang,
M.D., DAB No.
1198 (1990), where the Board
said
that even though the I.G.'s
exclusion
notice was delayed in
issuance, the ALJ
could not
decrease the minimum five-year
exclusion length fixed by statute,
nor
could he decide when the
exclusion was to
begin. In
any event, neither these two
cases
nor Ram v. Heckler, 792 F. 2d 444
(4th Cir. 1986) (also cited by
Petitioner
and discussed in
Chang), are relevant
because there
is no contention here that
the
I.G. did not move promptly after
the
conviction, nor that
Petitioner did not
receive
prompt disposition before the ALJ.
2. Petitioner acknowledged the Board's inability to
weigh
constitutional claims when he requested that his "case be certified
for
direct expedited appeal to Federal District Court where
the
constitutional issues may be resolved." Reply Brief, p. 5.
The Board's
procedures do not provide for any such certification, but the
Board has
resolved Petitioner's appeal