SUBJECT:

Barbara Carroll Bagley,

Petitioner,

The Inspector General.

DECISION

Petitioner, Barbara Carroll Bagley, 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 October 20, 2005, based upon her conviction of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. There is a proper basis for exclusion. Petitioner's exclusion for the minimum period ⁽¹⁾ of 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 September 30, 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 the Superior Court of California, County of San Diego, Central Division, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. See Act, section 1128(a)(1); 42 U.S.C. � 1320a-7(a)(1); and 42 C.F.R. � 1001.101(a).

Petitioner timely requested a hearing by letter dated October 29, 2005. The case was assigned to me for hearing and decision on December 6, 2005. On January 31, 2006, I convened a prehearing telephonic conference, the substance of which is memorialized in my Order dated February 1, 2006.

The I.G. filed a motion for summary judgment and supporting brief on March 1, 2006 (I.G. Brief), with I.G. Exhibits (I.G. Exs.) 1 through 3. Petitioner filed an opposition to the motion for summary judgment on March 29, 2006 (P. Brief), with no exhibits. The I.G. advised my office on April 19, 2006, that the I.G. elected not to file a reply brief. No objection has been made to the admissibility of any of the proposed exhibits and I.G. Exs. 1 through 3 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 October 19, 2004, Petitioner was convicted pursuant to her guilty plea in the Superior Court of California, County of San Diego, Central Division, of a misdemeanor offense of willfully and unlawfully presenting for allowance or payment, false or fraudulent claims under a state health care program for counseling services, for the purpose of obtaining greater compensation than that to which she was legally entitled, in violation of section 14107(b)(2), California Welfare and Institutions Code. I.G. Exs. 2, 3.

2. Petitioner does not dispute that she was convicted as reflected in Finding of Fact 1. Request for Hearing; P. Brief.

3. The I.G. notified Petitioner by letter dated September 30, 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 October 29, 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 or an item or service under Medicare or a state health care 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 the Department 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 of 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. � 1230a-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.

A person or entity is convicted within the meaning of the Act when there has been a finding of guilt, or a plea of guilty or no contest (nolo contendere) is accepted, and a judgment of conviction has been entered against the person or entity in a federal, state, or local court, whether or not an appeal is pending and even if the record is expunged through a first offender, deferred adjudication or similar arrangement. Act, section 1128(i).

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. ⁽²⁾ 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).

There are no genuine issues of material fact in dispute in this case. The sole issue in this case is whether Petitioner was convicted of an offense related to the delivery of an item or service under Medicare or a state health care program within the meaning of section 1128(a)(1). She does not dispute that she was, in fact, convicted of an offense and that that offense related to the delivery of an item or service under Medicare or a state health care program within the meaning of section 1128(a)(1) of the Act. There are no issues related to the reasonableness of the period of exclusion as a five-year exclusion is the minimum required by law. The only argument Petitioner raises in response to the motion must be resolved against her as a matter of law and, accordingly, 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 under Medicare or a state health care program.

Petitioner does not dispute that she was convicted of a criminal offense within the meaning of section 1128(i) of the Act. She also does not dispute that the criminal offense of which she was convicted related to the delivery of a service under a state health care program. Petitioner argues in her request for hearing that she was only doing what her boss told her to do; that she received no financial benefit; and that her public defender did not tell her that she would be excluded. In her opposition to the I.G. motion for summary judgment, she argues that her public defender never told her that she would be excluded; that she was following company policy and procedure by billing as she did; and that her exclusion will cause her hardship. The regulations prohibit Petitioner from challenging her conviction before me and it is not for me to review whether her guilty plea was well advised or provident. Even if I were to consider such arguments, it is axiomatic that ignorance of the law is simply no excuse. There is no question that Petitioner was convicted and that conviction was related to the delivery or, in this case, non-delivery of a service under a state health care program. Section 1128(a) mandates exclusion under the circumstances and the Secretary, the I.G., and I have no discretion to do otherwise.

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 the minimum period of an exclusion pursuant to section 1128(a)(1) is five years as mandated by section 1128(c)(3)(B), if I determine Petitioner is subject to mandatory exclusion. 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 October 20, 2005, 20 days after the September 30, 2005 I.G. notice of exclusion.

Keith W. Sickendick

Administrative Law Judge

1. Pursuant to 42 C.F.R. � 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires. Reinstatement is not automatic upon completion of the period of exclusion.

2. There are limited provisions for waiver of the exclusion where the basis for the exclusion is section 1128(a)(1), (a)(3), or (a)(4), but such a waiver is not a matter within my jurisdiction. Act, section 1128(c)(3)(B).