SUBJECT:

Robin Gilberta Jones Guess,

Petitioner,

The Inspector General.

I sustain the Inspector General's (I.G.) Determination to exclude Robin Gilberta Jones Guess, Petitioner, from participation in Medicare, Medicaid, and all federal health care programs for a five-year period pursuant to sections 1128(a)(1) and 1128(c)(3)(B) of the Social Security Act (Act).

This case is before me pursuant to a request for hearing filed on November 28, 2005, by Robin Gilberta Jones Guess, Petitioner.

By letter dated September 30, 2005, the I.G. 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 five years. The I.G. informed Petitioner that her exclusion was imposed under section 1128(a)(1) of the Act, due to her conviction of a criminal offense (as defined in section 1128(i) of the Act) related to the delivery of an item or service under the Medicaid program.

On January 30, 2006, I convened a telephone prehearing conference during which I determined that an in-person hearing was not required and that the issues could be decided based on written memoranda and documentary evidence. Consequently, I issued an Order establishing briefing deadlines. Pursuant to that Order, on March 1, 2006, the I.G. filed a brief (I.G. Br.), accompanied by four proposed exhibits. In the absence of objection I admit into evidence I.G. Exhibits (I.G. Exs.) 1-4. Although granted until April 17, 2006, Petitioner did not file a response brief, nor did she request an extension. Nevertheless, on June 28, 2006, I issued an Order extending Petitioner's date for filing of a brief until July 31, 2006. In that Order, I advised Petitioner that if she failed to submit her written arguments by July 31, 2006, I would close the record in this case and "issue a decision based on the record as it currently stands." Inasmuch as Petitioner has not submitted a brief in support of her contentions, in spite of ample opportunity to do, I have closed the record and issued a decision without the benefit of her arguments.

It is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in the Medicare, Medicaid, and all federal health care programs, for a period of five years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. ⁽¹⁾ It is my finding that Petitioner was convicted of a criminal offense related to the delivery of an item or service under a state health care program and that the I.G. had a basis for her exclusion.

ISSUES

1. Whether Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicare or Medicaid program.

2. If Petitioner was convicted of such an offense, whether the five-year period of exclusion imposed by the I.G. is required as a matter of law.

APPLICABLE LAW AND REGULATIONS

Section 1128(a)(1) of the Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual convicted of a criminal offense relating to the delivery of a health care item or service under Title XVIII of the Act (Medicare) or a state health care program (Medicaid)

An exclusion under section 1128(a)(1) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B).

Pursuant to 42 C.F.R. � 1001.2007, an individual or entity excluded under section 1128(a)(1) of the Act may file a request for a hearing before an administrative law judge.

The findings of fact and conclusions of law are noted below in bold face and are followed by a discussion of each finding.

1. Petitioner's conviction of a criminal offense related to the delivery of an item or service under the Medicaid program requires her exclusion by the I.G. from participation in the Medicare, Medicaid, and all other federal health care programs.

On June 15, 2004, the Attorney General of the State of California filed a Felony Complaint against Petitioner in the Superior Court of San Diego County. The complaint alleged that on or about and between January 1997 and March 21, 2004, in the County of San Diego, State of California, Petitioner fraudulently billed Med-Cal program (a State health care program) for counseling services with the intention of obtaining greater compensation than that to which she was legally entitled. I.G. Ex. 2, at 6.

On October 19, 2004, Petitioner entered a plea of no contest to submitting false claims in the Superior Court of California, San Diego County. I.G. Ex. 4, at 1. The Court accepted her plea as to Count 17 of the complaint and convicted her of a misdemeanor. The remaining counts were dismissed. I.G. Ex. 4.

Petitioner's no contest plea and the judgment of conviction entered by the Superior Court of California meet the definition of conviction under sections 1128(i)(1) and (3) of the Act. Therefore, I find that Petitioner was convicted of a criminal offense under sections 1128(i)(1) and (3) of the Act.

2. Petitioner's exclusion for a period of five years is required as a matter of law.

An exclusion under section 1128(a)(1) of the Act must be for a minimum mandatory period of five years, as set forth in section 1128(c)(3)(B) of the Act:

Subject to subparagraph (G), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be not less than five years . . . .

When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. � 1001.2007(a)(2). Aggravating factors that justify lengthening the exclusion period may be taken into account, but the five-year term will not be shortened. Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare. As a result of Petitioner's program-related conviction, the I.G. was required to exclude her pursuant to section 1128(a)(1) of the Act, for at least five years.

CONCLUSION

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs, for a period of at least five years, because she was convicted of a criminal offense related to the delivery of an item or service under Medicaid.