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CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Jeffrey Jerome Thigpen,

Petitioner,

DATE: March 22, 2004
                                          
             - v -

 

The Inspector General

 

Docket No. C-03-433
Decision No. CR1158
DECISION
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DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Jeffrey Jerome Thigpen, from participation in Medicare, Medicaid, and all federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), for a period of 15 years.

I. Background and undisputed material facts

A. Background

By letter dated April 30, 2003, the I.G. notified Petitioner that he was being excluded for a period of 15 years from participating in Medicare, Medicaid, and other federally funded health care programs. The I.G. advised Petitioner that she was authorized to exclude Petitioner because he had been convicted of a criminal offense within the meaning of section 1128(a)(1) of the Act. Additionally, the I.G. told Petitioner that the length of the exclusion in his case was justified by the presence of certain aggravating factors.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a pre-hearing conference on November 18, 2003, at which Petitioner participated without the benefit of legal counsel. I informed Petitioner of his right to have an attorney or other representative assist him in this matter. Petitioner indicated that he understood his rights. In response to my inquiry whether the case could be decided on the basis of the written record, Petitioner acknowledged his conviction was related to the Medicaid program, but disputed the dollar amount of the claims that were the basis for his conviction and stated that he wished to see the claims. I then issued an order setting forth a briefing schedule and stating that I would determine, after a review of the parties' submissions, whether an in-person hearing was warranted.

The I.G. subsequently submitted a motion for summary affirmance and four proposed exhibits (I.G. Ex. 1 - I.G. Ex. 4) in support of her argument. Petitioner submitted five separate letters. In a letter dated December 24, 2003, Petitioner moved for an in-person hearing and the production of copies of the claim forms ("HCFA 1500" forms) at issue in order to contest the validity of the dollar amount of the offenses for which he was convicted. In a January 2, 2004 letter, Petitioner submitted a copy of a newspaper article as support for his need to examine the HCFA 1500 claims. I have labeled this newspaper article as an exhibit (P. Ex. 1). In a February 5, 2004 letter, Petitioner asked for a continuance of two weeks, providing a January 21, 2004 letter from the Centers for Medicare & Medicaid Services (CMS) replying to Petitioner's Freedom of Information (FOI) request regarding the HCFA 1500 claim forms. I have labeled this document as an exhibit (P. Ex. 2). Petitioner's letter also included a February 2, 2004 letter from the Office of the Minnesota Attorney General, responding to Petitioner's FOI request and enclosing what appears to be the first two pages of 152 pages detailing claims submitted by Petitioner for medicaid reimbursement. I have labeled this document as an exhibit (P. Ex. 3). In an undated letter received in my office on February 19, 2004, Petitioner again requested the HCFA 1500 forms, including a February 5, 2004 letter from CMS advising Petitioner that he had not submitted valid written authorization for the release of the records. I have labeled this CMS letter as an exhibit (P. Ex. 4). Finally, on February 20, 2004, Petitioner submitted a motion entitled "Motion for Hearing, and Judicail [sic] Review 42�1320a-7(f)."

As Petitioner did not object to the I.G.'s proposed exhibits, I receive into evidence I.G. Ex. 1 - I.G. Ex. 4. I also receive into evidence P. Ex. 1 - P. Ex. 4.

B. Undisputed material facts

No material facts in this case can reasonably be viewed as disputed. The basis for the I.G.'s exclusion is Petitioner's 2002 conviction in the United States District Court, District of Minnesota, on 41 counts involving false statements, health care fraud, and money laundering. Petitioner was the owner and operator of New Life Transportation, an entity enrolled as a special transportation provider with the Minnesota Medicaid program. From January 1999 through September 2000, Petitioner submitted claims for Medicaid reimbursement for transportation services that were never provided. Following his conviction after a jury trial, Petitioner was sentenced to serve a minimum 51-month period of incarceration, ordered to pay restitution in the amount of $412,483.41, and ordered to pay a special assessment of $4,100.

II. Findings of fact and conclusions of law

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.

1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service within the meaning of section 1128(a)(1) of the Act and, therefore, the I.G. has the authority to exclude Petitioner from Medicare, Medicaid, and all federal health programs for a minimum period of five years.

Section 1128(a) of the Act provides -

The Secretary shall exclude the following individuals and entities from participation in any Federal health care program as defined in section 1128B(f):

(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 VIII or under any State health care program.

The Act mandates that an exclusion imposed pursuant to section 1128(a)(1) be for a minimum period of five years. Act, section 1128(c)(3)(B).

Although Petitioner in the pre-hearing conference conceded that he was in fact convicted of an offense related to the delivery of a Medicaid item or service, Petitioner now questions whether he was, in fact, convicted. Petitioner asserts that his conviction was "frabricated [sic] as a matter of law," in that the verdict slips from the jury at his trial were allegedly undated, which Petitioner argues, without citing any authority, was required by law. December 24, 2003 letter at 1. Petitioner bases this assertion on a telephone conversation with a reporter who allegedly viewed the jury verdict slips. Petitioner requests that this reporter, along with five other unnamed persons who were present at his trial, be subpoenaed to testify at an in-person hearing. Id. at 1 - 2.

I find no merit whatsoever in Petitioner's position. Petitioner's arguments must be seen as nothing but a collateral attack on his conviction. The regulations, at 42 C.F.R. � 1001.2007(d), expressly provide that the basis for an individual's conviction is not reviewable before an administrative law judge (ALJ) and the individual may not attack the conviction on either substantive or procedural grounds.

2. The I.G. established the presence of aggravating factors which justify an exclusion of more than five years.

An exclusion may be for more than the five-year minimum period where circumstances warrant a lengthier exclusion. The Secretary has published regulations that govern the length of exclusions imposed pursuant to section 1128 of the Act. 42 C.F.R. � 1001.102 governs exclusions imposed under section 1128(a)(3) of the Act. This regulation describes certain aggravating factors which, if present and not offset by mitigating factors, may justify an exclusion of more than five years. 42 C.F.R. � 1001.102(b) and (c).

In this case, the I.G. proved the presence of the following four aggravating factors:

� Petitioner's offenses resulting in his conviction caused a financial loss to a government program of $5,000 or more. 42 C.F.R. � 1001.102(b)(1). Although Petitioner has sought to examine the claims that were the basis for his conviction to determine the exact dollar amount of the claims, evidence in the record shows that Petitioner's offenses were found to have resulted in a loss of $412,438.41 to government programs. I.G. Ex. 3, at 7.

The acts that resulted in Petitioner's conviction, or similar acts, occurred over a period of more than a year. 42 C.F.R. � 1001.102(b)(2). The offenses that provided the basis for Petitioner's conviction began in January 1999 and extended through September 2000. I.G. Ex. 2, at 3 - 6.

� The sentence imposed against Petitioner for his crime included incarceration. 42 C.F.R. � 1001.102(b)(5). Petitioner was sentenced to a minimum of 51 months of imprisonment. I.G. Ex. 3, at 2.

Petitioner was the subject of an adverse action by a Federal, state or local government agency or board based on the same set of circumstances that served as the basis for the imposition of his exclusion. 42 C.F.R. � 1001.102(b)(9). On September 25, 2002, the Minnesota Department of Human Services, the state agency responsible for the administration of the Medicaid program in Minnesota, notified Petitioner that his participation in Minnesota health care programs was terminated. I.G. Ex. 4.

Petitioner did not dispute the existence of any of these aggravating factors. As discussed above, while Petitioner questioned whether the loss to federal programs amounted to the $412,438 for which he was ordered to pay restitution, he has not disputed that the amount of the fraudulent claims exceeded the $5,000 limit that constitutes an aggravating factor.

3. Petitioner failed to prove the presence of any mitigating factors which might offset the aggravating factors established by the I.G.

As I discuss above, at Finding 2, the presence of aggravating factors in a case might justify excluding an individual for more than the five-year minimum period. Conceivably, evidence relating to an aggravating factor or factors might be offset by evidence relating to any of the mitigating factors set forth at 42 C.F.R. � 1001.102(c). Here, however, Petitioner has not proved, nor even claimed, that any of the mitigating factors listed at 42 C.F.R. � 1001.102(c) applies to his case.

4. The I.G.'s exclusion of Petition for a period of 15 years is not unreasonable.

Section 1128 of the Act is remedial. Its purpose is not to impose additional punishment on an excluded individual, but to protect federally funded health care programs and the beneficiaries and recipients of those programs from individuals and entities who have established themselves to be untrustworthy to provide care to those beneficiaries and recipients.

Section 1001.2007(a)(1)(ii) of 42 C.F.R. provides that the ALJ may determine whether the length of exclusion imposed is "unreasonable." In making such a determination, the ALJ is to conduct a "de novo" review as to the facts related to any aggravating and mitigating factors identified at 42 C.F.R. � 1001.102. Joann Fletcher Cash, DAB No. 1725 (2000), at 17, n.9, and cases cited therein. As the Departmental Appeals Board has noted, however, the preamble to the regulations governing exclusions states that "[s]o long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule." Id. at 17, quoting 57 Fed. Reg. 3298, 3321 (1992). A "reasonable range" is "a range of exclusion periods that is more limited than the full range authorized by the statute and that is tied to the circumstances of the individual case." Gary Alan Katz, R.Ph., DAB No. 1842, at 8, n.4 (2002). In analyzing these factors, the number of aggravating factors does not determine reasonable range; rather, the quality of the circumstances controls. Keith Michael Everman, D.C., DAB No. 1880 (2003); Barry D. Garfinkel, M.D., DAB No. 1572 (1996).

Neither the Act nor implementing regulations direct that an exclusion of any particular length beyond the minimum five-year period must be imposed based on the presence of aggravating factors or the absence of mitigating factors. The aggravating and mitigating factors that are identified at 42 C.F.R. � 1001.102(b) and (c) function in a sense as rules of evidence; they establish what evidence may be considered in deciding whether an exclusion is unreasonable, but they do not establish the weight that must be afforded to any evidence relevant to the issue. The presence of aggravating factors not offset by mitigating factors is not an automatic basis for deciding that an exclusion of any particular length is unreasonable. Nor is the number of aggravating factors that may be present in a case a particularly significant indicator whether an exclusion is unreasonable.

What is relevant to deciding whether an exclusion is unreasonable is evidence that relates to an aggravating or a mitigating factor. Ultimately, it is that evidence which establishes whether an exclusion is unreasonable and not the presence or absence of factors. See John D. Strom, D.C., DAB CR1056 (2003).

In this case the evidence establishes that Petitioner engaged in a calculated endeavor to defraud the Medicaid program of over $400,000. Petitioner's fraudulent activities did not occur in a short period of time, but stretched over a period of nearly two years. Petitioner's acts assuredly call into question his trustworthiness in further participation in federally funded health programs.

I have considered all of the evidence submitted by Petitioner and the I.G. and I find that an exclusion of 15 years is not unreasonable in light of the evidence presented in this case.

III. Conclusion

For the reasons discussed above, I sustain the I.G.'s determination to exclude Petitioner from participation in federal health programs for a period of 15 years.

JUDGE
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Carolyn Cozad Hughes

Administrative Law Judge

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