Scott B. Standley, DAB CR5090 (2018)

DECISION

Petitioner, Scott B. Standley, was a paramedic who worked for Lee County Emergency Medical Services in Lee County, Florida.  He pled guilty to one felony count of grand theft.  Based on this, the Inspector General (IG) has excluded him for five years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(3) of the Social Security Act (Act).  Petitioner appeals the exclusion.  For the reasons discussed below, I find that the IG properly excluded Petitioner Standley and that the statute mandates a minimum five-year exclusion. 

Background

In a letter dated September 29, 2017, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five years because he had been convicted of a felony offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a healthcare item or service; or with respect to any act or omission in a healthcare program (other than Medicare or a state health care program) operated by, or financed, in whole or in part, by any federal state or local government

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agency.  The letter explained that section 1128(a)(3) of the Act authorizes the exclusion.  IG Ex. 1. 

Petitioner timely requested review.

The IG submitted a written argument (IG Br.) and six exhibits (IG Exs. 1-6).  Petitioner responded to the IG’s brief (P. Br.), and the IG submitted a reply (IG Reply).

In the absence of any objections, I admit into evidence IG Exs. 1-6.

The parties agree that an in-person hearing is not necessary.  IG Br. at 6; P. Br. at 2.

Discussion

Petitioner must be excluded from program participation for a minimum of five years because he was convicted of a felony related to theft in connection with the delivery of healthcare items and because he was convicted of stealing healthcare items from a health care program financed by a local government agency.  Act § 1128(a)(3).1

Under section 1128(a)(3) of the Act, the Secretary of Health and Human Services must exclude an individual or entity that has been convicted under federal or state law of felony fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a healthcare item or service or with respect to any act or omission in a health care program operated by or financed, in whole or in part, by any federal, state or local government agency.  42 C.F.R. § 1001.101(c)(1). 

Petitioner Standley was a paramedic, working for Lee County Emergency Medical Services (EMS), a county-based provider of emergency medical services.  Based on information supplied by his estranged wife, police recovered from his residence an assortment of medical supplies, including bottles of Nitroglycerin and nitroglycerin spray, Foley catheter kits, IV kits, syringes, needles, and IV tubing.  Officials from Lee County EMS confirmed that the items had “without a doubt” been taken from the EMS agency without permission.  IG Ex. 2.

In an information dated August 3, 2016, Petitioner Standley was charged with one felony count of grand theft – stealing property valued at $300 or more from the Lee County EMS.  IG Ex. 3.  On January 9, 2017, he pled guilty to the charge.  IG Exs. 4, 5.  The court accepted his plea and sentenced him to 24 months probation, ordered him to

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perform 100 hours of community service, and to pay $825 in restitution to Lee County EMS.  IG Exs. 5, 6. 

Petitioner concedes that he was convicted of a felony but argues that his felonious conduct was not in connection with the delivery of a health care item or service.  He argues that no health care program suffered any losses and that he committed no fraud on any health care program.  P. Br. at 2. 

Petitioner’s arguments fail for two reasons.  First, without regard to whether he defrauded a health care program, he plainly committed theft in connection with the delivery of health care items, which subjects him to exclusion under section 1001.101(c)(1).  He stole medical supplies that the EMS possessed for use in providing emergency care.  The Departmental Appeals Board has long considered such actions within the purview of section 1128(a)(3).  Where, for example, a pharmacy employee stole a single Lasix tablet, the Board found the necessary “common-sense connection” between his crime and the delivery of a health care item.  The Board reasoned that the pharmacy obtains health care items (the tablets) for the purpose of delivering them to members of the general public in order to meet their medical needs.  When an employee takes one of those tablets, he interferes with the delivery of that item.  Andrew D. Goddard, DAB No. 2032 at 1 (2006); see also Erik D. DeSimone, R.Ph., DAB No. 1932 (2004).

Second, Petitioner committed theft from a program operated by a local government agency, Lee County EMS, which subjects him to exclusion under section 1001.101(c)(2). 

An exclusion brought under section 1128(a)(3) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid and all federal health care programs, and I sustain the five-year exclusion.

• 1. I make this one finding of fact/conclusion of law.