SUBJECT:

Emma Voloshin, M.D.,

Petitioner,

The Inspector General

DECISION

I sustain the Inspector General's (I.G.) determination to exclude Petitioner, Emma Voloshin, M.D., from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. I find that the I.G. is authorized to exclude Petitioner under section 1128(a)(1) of the Social Security Act (Act) and that the statute mandates a minimum five-year exclusion.

I. Background

By letter dated September 30, 2003, the I.G. notified Petitioner of the I.G.'s decision to exclude her from program participation for five years. The letter explained that the exclusion was imposed pursuant to section 1128(a)(1) of the Act, because Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicaid program. By letter dated November 17, 2003, Petitioner requested review, and the matter has been assigned to me for resolution. I held a telephone prehearing conference on December 15, 2003, at which the parties agreed that this case could appropriately be decided based on the written record without an oral hearing, and at which I established a briefing schedule. Order Scheduling Submission of Briefs and Documents (December 16, 2003).

Thereafter, the I.G. submitted her motion and brief in support of summary affirmance (I.G.'s Brief), accompanied by three marked exhibits (I.G. Exs.1-3). Petitioner filed a brief in opposition to the I.G.'s motion and in support of reversal of the Medicaid exclusion (P. Brief), without accompanying exhibits. The I.G. submitted a reply to Petitioner's Brief (I.G. Reply). In the absence of objection, I admit I.G. Exs. 1-3.

II. Issue

The sole issue before me is whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs. This depends on whether she was "convicted" of a criminal offense related to the delivery of an item or service under Title XVIII or under any state health care program.

Because an exclusion under section 1128(a)(1) must be for a minimum period of five years, the reasonableness of the length of the exclusion is not an issue.

III. Discussion

The critical facts of this case are not in dispute. On February 24, 2003, in Wisconsin State Court, Petitioner entered pleas of no contest to six misdemeanor counts of making false or fraudulent insurance claims, in violation of Wis. Stat. �� 943.395(1)(a) and 943.395(2)(a). She acknowledges that, in billing the State Medicaid program, she falsely claimed to have personally provided services that were, in fact, provided by her employees. I.G. Ex. 2; P. Brief at 2.

A. Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(1) of the Act. ⁽¹⁾

Section 1128(a)(1) requires the Secretary of Health and Human Services to exclude a person convicted of a criminal offense related to the delivery of an item or service under any state health care program. ⁽²⁾ Pleas of guilty and nolo contendere, when accepted by a court, are considered convictions within the meaning of the statute. 42 C.F.R. � 1001.2.

Petitioner acknowledges she billed the Medicaid program under her own certification number for services provided by her less credentialed employees, and that this billing practice ultimately led to her indictment and conviction. She nevertheless argues that her crimes are not program-related offenses because she was convicted under a general insurance fraud statute, rather than a statute specifically directed at crimes against the Medicaid program. Petitioner recognizes the Departmental Appeal Board's (Board) position that an offense is program-related so long as a nexus or common-sense connection exists between the conduct giving rise to the offense and the delivery of a Medicare item or service. Berton Siegel, D.O., DAB No. 1467 (1994). Petitioner also recognizes that under the standard articulated in Siegel, her convictions "would clearly subject her to mandatory exclusion." P. Brief at 5. She argues, however, that in Siegel the Board applied a standard inconsistent with the statutory language: to constitute a program-related offense, the criminal statute under which an individual or entity is convicted must itself "relate to the delivery of an item or service under a federal or state program." In Petitioner's view, because she was convicted under a statute that refers generally to insurance fraud, and does not specifically mention the Medicaid program, her crimes were not program-related, notwithstanding her admission that the insurance fund she defrauded was the Medicaid program.

The Board has long held that to determine whether a crime is program-related requires the adjudicator to go beyond the four corners of the statute under which the individual was convicted.

The inquiry is whether the conviction is "related to" Medicaid fraud, not whether the state court convicted Petitioner of Medicaid fraud. Thus, my task is not simply to examine the judgment and state criminal statute to determine whether they specifically refer to Medicaid fraud. Rather, my task is to examine all relevant conduct to determine if there is a relationship between the judgment of conviction and the Medicaid program. Had Congress intended a different result, it would have used the phrase "conviction for" or conviction "restricted to" instead of "related to." An examination of whether a conviction is "related to" Medicaid necessarily involves an inquiry into Petitioner's conduct.

Dwayne Franzen, DAB No. 1165, at 6 (1990), quoting with approval, Gene Blankenship, DAB CR42, at 11 (1989). I find this reasoning as sound now as it was when first articulated. Petitioner submitted false claims to the Medicaid program and her actions fall squarely within the ambit of section 1128(a)(1), notwithstanding the fact that the particular state law under which she was convicted did not specifically mention Medicaid. Because her conviction falls within section 1128(a)(1), the I.G. must impose the mandatory five-year exclusion. Lorna Fay Gardner, DAB No. 1733 (2000).

B. Petitioner may not re-litigate her criminal conviction in this forum.

Notwithstanding her conviction, Petitioner denies that she intended to defraud Medicaid through her billing practices, and argues that "several factors substantially mitigate her culpability." As discussed below, mitigating factors are irrelevant here inasmuch as the I.G. imposed the minimum period of exclusion. Moreover, to the extent that Petitioner attempts to negate her conviction, the regulations explicitly preclude my review of the facts underlying that conviction.

When the exclusion is based on the existence of a criminal conviction . . . where the facts were adjudicated and a final decision was made, the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. � 1001.2007(d); Joann Fletcher Cash, DAB No. 1725 (2000); Chandler Kachoria, R.Ph., DAB No. 1380, at 8 (1993) ("There is no reason to 'unnecessarily encumber the exclusion process' with efforts to re-examine the fairness of state convictions.").

C. The statute mandates a five-year minimum period of exclusion, and mitigating factors may not be considered to reduce that period of exclusion.

An exclusion under section 1128(a)(1) of the Act must be for a minimum mandatory period of five years. Act, section 1128(c)(3)(B). Specified aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. � 1001.102(b). When aggravating factors justify an exclusion longer than five years, specified mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c). But, when, as here, 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).

IV. Conclusion

For the reasons discussed above, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all other federal health care programs, and I uphold the five-year exclusion.

Carolyn Cozad Hughes

Administrative Law Judge

1. I make findings of fact and conclusions of law to support my decision in this case. I set forth each finding below, in italics, as a separate numbered or lettered heading.

2. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX).