SUBJECT:

Patricia Taylor,

Petitioner,

The Inspector General

DECISION

Petitioner, Patricia Taylor, is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (the Act) (42 U.S.C. � 1320a-7(a)(1)), effective June 20, 2005, based upon her conviction of a criminal offense related to the delivery of an item or service under the Medicaid program. There is a proper basis for exclusion. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)).

I. Background

The Inspector General for the Department of Health and Human Services (the I.G.) notified Petitioner by letter dated May 31, 2005, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum statutory period of five years, pursuant to section 1128(a)(1) of the Act. The basis cited for Petitioner's exclusion was her conviction in Stone County Justice Court, State of Mississippi, of a criminal offense related to the delivery of an item or service under the Mississippi Medicaid program. See Act, section 1128(a)(1); 42 U.S.C. � 1320a-7(a)(1); 42 C.F.R. � 1001.101(a).

Petitioner timely requested a hearing by letter dated July 14, 2005. The case was assigned to me for hearing and decision on August 4, 2005. On September 29, 2005, I convened a prehearing telephonic conference, the substance of which is memorialized in my Order of the same date. During the telephonic conference, counsel for the parties agreed that this matter may be decided on written submissions and they agreed to a briefing schedule.

The I.G. filed a motion for summary judgment and supporting brief on November 14, 2005 (I.G. Brief), with I.G. Exhibits (I.G. Exs.) 1 through 5. Petitioner filed a response (P. Response) to the I.G.'s motion for summary judgment on December 28, 2005 with no exhibits. No objection has been made to the admissibility of any of the proposed exhibits and I.G. Exs. 1 through 5 are admitted.

II. Discussion

A. Findings of Fact

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the pleadings and the exhibits admitted. Citations may be found in the analysis section of this decision if not included here.

1. On or about February 14, 2003, while employed as a licensed practical nurse at Azalea Gardens Nursing Home in Wiggins, Mississippi, Petitioner recorded in a Medicaid patient's medical record that she had administered medication when she knew she had not. I.G. Exs. 2 and 3.

2. On August 16, 2004, Petitioner pled guilty to two misdemeanor counts of falsification of medical records of patients, one of whom received Medicaid benefits. She was adjudged guilty in the Stone County Justice Court, State of Mississippi, and sentenced to pay a fine and to perform community service. I.G. Exs. 4 and 5.

3. The I.G. notified Petitioner by letter dated May 31, 2005, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum statutory period of five years, pursuant to section 1128(a)(1) of the Act.

4. Petitioner timely requested a hearing by letter dated July 14, 2005.

B. Conclusions of Law

1. Petitioner's request for hearing was timely and I have jurisdiction.

2. Summary judgment is appropriate.

3. Petitioner was convicted of a criminal offense related to the delivery of a service under the Mississippi Medicaid program, within the meaning of section 1128(a)(1) of the Act.

4. There is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) of the Act.

5. Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of exclusion under section 1128(a) is five years and that period is presumptively reasonable.

C. Issues

The Secretary of Health and Human Services (the Secretary) has by regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and,

Whether the length of the exclusion is unreasonable.

42 C.F.R. � 1001.2007(a)(1).

In this case there is no issue as to the reasonableness of the proposed period of exclusion, as it is the minimum period of five years mandated by the Act. The standard of proof is a preponderance of the evidence, and there may be no collateral attack on the conviction that is the basis for the exclusion. 42 C.F.R. � 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors, and the I.G. bears the burden on all other issues. 42 C.F.R. � 1005.15(b) and (c).

D. Law Applicable

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. � 1320a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction.

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. � 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

E. Analysis

1. Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing. The right to hearing before an ALJ is accorded to a sanctioned party by 42 C.F.R. � 1005.2 and the rights of both the sanctioned party and the I.G. to participate in a hearing are specified in 42 C.F.R. � 1005.3. Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration. 42 C.F.R. � 1005.6(b)(5). The ALJ may also resolve a case, in whole or in part, by summary judgment. 42 C.F.R. � 1005.4(b)(12). Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See, e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); Thelma Walley, DAB No. 1367 (1992); see also, New Millennium CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000).

The parties agreed during the prehearing conference that this case may be resolved based on written submissions. I agree. There are no genuine issues of material fact in dispute in this case; the only issue requiring decision is one of law; and summary judgment is appropriate.

2. There is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) of the Act.

The I.G. cites section 1128(a)(1) of the Act as the basis for Petitioner's mandatory exclusion. The statute provides:

(a) MANDATORY EXCLUSION. - 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 XVIII or under any State health care program.

The statute requires the Secretary to exclude from participation any individual or entity: (1) convicted of a criminal offense; (2) where the offense is related to the delivery of an item or service; and (3) the item or service was delivered under Medicare or Medicaid.

Petitioner does not dispute that she was convicted, pursuant to her plea, of a criminal offense within the meaning of section 1128(i) of the Act. P. Response at 1. She also does not dispute that her conviction related to the delivery of a service under Medicaid. Id. Rather, Petitioner argues that her underlying conviction was improper because she received ineffective assistance of counsel, i.e., she was not properly advised by counsel and did not make her plea knowingly and willingly. Id. Petitioner urges me to find that her exclusion is thus arbitrary and capricious. Id.

Petitioner's arguments are to no avail. Congress did not grant the Secretary discretion not to exclude Petitioner once it is found that she was convicted of a program-related offense within the meaning of section 1128(a)(1). The I.G. and I are bound by the Act, as is the Secretary. Further, Congress mandated a minimum exclusion period of five years for such conviction and the Secretary, the I.G., and ALJs have no discretion under the Act to reduce the period of exclusion below five years. Because there is no discretion to do other than Congress directs in this case, it cannot be said that Petitioner's exclusion for five years is either arbitrary or capricious.

Petitioner's concerns about ineffective assistance of counsel are a challenge to her underlying criminal conviction. This is not the proper forum for such a challenge. 42 C.F.R. � 1001.2007(d). However, the Secretary has provided by regulation that if Petitioner's underlying conviction is reversed or vacated on appeal in the proper forum, then reinstatement to Medicare, Medicaid, and all federal health care programs will be retroactive to the effective date of the exclusion. 42 C.F.R. � 1001.3005.

There is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) of the Act.

3. Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of exclusion under section 1128(a) is five years.

Petitioner has not disputed that, if I determine Petitioner is subject to mandatory exclusion, section 1128(c)(3)(B) of the Act mandates that the minimum period of an exclusion pursuant to section 1128(a)(1) is five years. I have found there is a basis for Petitioner's exclusion pursuant to section 1128(a)(1), and the minimum period of exclusion is thus five years.

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of five years, effective June 20, 2005, 20 days after the May 31, 2005 I.G. notice of exclusion.

Keith W. Sickendick

Administrative Law Judge