Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Carlos Rivera-Cruz, |
DATE: June 23, 2000 |
- v - |
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The
Inspector General
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Docket No.C-00-185
Decision No. CR677 |
DECISION | |
By letter dated November 30, 1999, Carlos
Rivera-Cruz, M.D., the Petitioner herein, was notified by the Inspector
General (I.G.), U.S. Department of Health and Human Services (H.H.S.), that
it had been decided to exclude him for a period of five years from participation
in the Medicare, Medicaid, Maternal and Child Services Block grant, and
Block Grant to States for Social Services programs.(1)
The I.G. explained that the five- year exclusion was mandatory under section
1128(a)(1) of the Social Security Act (Act) because Petitioner had been
convicted, in the United States District Court for the District of Puerto
Rico, of a criminal offense in connection with the delivery of a health
care item or service under the Medicaid program. On December 20, 1999, 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. Both parties submitted
briefs in this matter. The I.G. submitted four proposed exhibits (I.G.
Exs. 1-4). Petitioner did not object to these exhibits and I accept them
into evidence. I grant the I.G.'s motion for summary disposition. I affirm
the I.G.'s determination to exclude Petitioner from participation in the
Medicare and Medicaid programs for a period of five years.
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 a health care item or service under Medicare
or Medicaid to be excluded from participation in such programs for a period
of at least five years.
PETITIONER'S ARGUMENTS Petitioner contends that his exclusion from participation
in the Medicare and Medicaid programs constitutes double jeopardy as he
has already been punished in the criminal proceeding. He further asserts
that such exclusion effectively precludes his employment as a physician
as most of his patients are Medicare or Medicaid recipients. He also notes
that he was permitted to practice as a physician after his criminal conviction
but before his exclusion by the I.G. and he contends that his good record
during this time shows that he is rehabilitated. He also maintains that
such facts show that his exclusion is not remedial but punitive. In the
alternative, Petitioner requests that, if his exclusion is upheld, he
be permitted to practice during the five-year exclusion under the supervision
of the government.
DISCUSSION The first statutory requirement for the imposition of
mandatory exclusion pursuant to section 1128(a)(1) of the Act is that
the individual or entity in question be convicted of a criminal offense
under federal or state law. The record reflects that a judgment of conviction
was entered in Petitioner's case and he was sentenced by the United States
District Court. This judgment was based upon the court's acceptance of
Petitioner's guilty plea on November 25, 1996. Petitioner was thus convicted
within the meaning of section 1128(i)(3) 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/Medicaid program. The record establishes
that Petitioner, in pleading guilty to the indictment, admitted to filing,
or causing to be filed, claims against Medicare that were false. The filing
of fraudulent Medicare and Medicaid claims consistently has been held
to constitute clear program-related misconduct. Alan J. Chernick, D.D.S.,
DAB CR434 (1996) (I.G.'s five-year mandatory exclusion of dentist who
was convicted in state court of filing false claims upheld); see
also Barbara Johnson, D.D.S., DAB CR78 (1990) (I.G.'s five-year
mandatory exclusion of dentist convicted of filing false claims upheld). To determine if an offense is program-related, the administrative
law judge (ALJ) must analyze the facts and circumstances underlying the
conviction to determine whether a nexus or common sense connection links
the offense for which a petitioner has been convicted and the delivery
of a health care item or service under a covered program. Berton Siegel,
D.O., DAB CR298 (1993), aff'd, DAB No. 1467 (1994). In Petitioner's
case, a necessary nexus links the facts underlying his crime with the
delivery of health care items or services under Medicare because the falsified
claims leading to Petitioner's conviction resulted in receipt of fraudulent
Medicare reimbursement. In Rosaly Saba Khalil, M.D., DAB CR353
(1995), the ALJ found that a criminal offense stemming from the fraudulent
receipt of reimbursement checks from Medicaid provided a sufficient nexus
between the offense and the delivery of health care items or services
under Medicaid. Additionally, the ALJ in Khalil held that a nexus
may exist "despite the fact that Petitioner may not have provided items
or services to Medicaid recipients personally or made reimbursement claims
for those items or services." Id. In the present case, the nexus between
Petitioner's offenses and the delivery of health care items or services
is firmly established by his guilty plea to the charge contained in the
indictment. Petitioner also raises other challenges to his exclusion.
He asserts that his exclusion has the impermissibly harsh consequence
of depriving him of employment as such exclusion makes it difficult for
him to practice medicine. Similar claims regarding loss of employment
opportunities however have been previously rejected. See Arlene
Elizabeth Hunter, R.N., DAB CR505 (1997). Petitioner also claims that his exclusion constitutes
double jeopardy. I find no merit in such claim. Petitioner's exclusion
was imposed to protect program beneficiaries from future misconduct by
him, a provider who has proven himself to be untrustworthy based on his
conviction for a program-related crime, not to punish him. See
Paul Karsch, DAB CR454 (1997). Federal Courts, Board administrative
law judges, and appellate panels have held consistently that exclusions
imposed pursuant to section 1128 are remedial in nature and do not violate
the Double Jeopardy clause. Barry D. Garfinkel, M.D., DAB CR400
(1995), rev'd in part, DAB No. 1572 (1996); see Manocchio
v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Greene v. Sullivan,
731 F. Supp. 838 (E.D. Tenn. 1990); Francis Shaenboen, R.Ph., DAB
CR97 (1990), aff'd, DAB No. 1249 (1991). Finally Petitioner asserts that he should be permitted
to practice medicine as he did for the period after his criminal conviction
and before notice of his exclusion in 1999. It is clear however that the
I.G. has the discretion to determine when to impose an exclusion. Laurence
Wynn, M.D., DAB CR344 (1994). Neither the statute nor the implementing
regulations set any specific deadline for the I.G. to act. Chander
Kachoria, R.Ph., DAB CR220 (1992), aff'd, DAB No. 1380 (1993).
The DAB has held that the ALJ does not have the power to change the commencement
date of an exclusion. Samuel W. Chang, M.D., DAB CR74 (1990), aff'd,
DAB No. 1198 (1990).
CONCLUSION Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner herein be excluded from the Medicare and Medicaid programs for a period of at least five years based upon his conviction for a criminal offense related to the delivery of a health care item or service under the Medicaid program. The five-year exclusion is therefore sustained. |
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JUDGE | |
Joseph K. Riotto Administrative Law Judge |
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FOOTNOTES | |
1. In this decision, I use the term "Medicaid" to refer to these State health care programs. | |