SUBJECT:

Henry L. Gupton,

Petitioner,

The Inspector General.

DECISION

Petitioner, Henry L. Gupton, 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 March 20, 2006, based upon his conviction for 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 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 February 28, 2006, that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Act based upon his conviction in the Criminal Court for Anderson County, Tennessee, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. The I.G. advised Petitioner that the exclusion was for the minimum statutory period of five years and that the exclusion was effective 20 days from the date of the letter.

Petitioner timely requested a hearing by an administrative law judge (ALJ) by letter dated March 13, 2006. The case was assigned to me for hearing and decision on April 12, 2006. On May 11, 2006, I convened a prehearing telephonic conference, the substance of which is memorialized in my Order dated May 11, 2006. During the prehearing conference, Petitioner advised that he was not waiving an oral hearing. The I.G. requested the opportunity to move for summary judgment and a briefing schedule was set.

The I.G. filed a motion for summary judgment (I.G. Brief) on June 12, 2006, with I.G. exhibits (I.G. Exs.) 1 through 4. Petitioner filed a cross-motion for summary judgment (P. Brief) on July 13, 2006, with a Declaration of Henry L. Gupton, M.D. (with exhibits A and B); a Declaration of Janice G. Hicks; and a Declaration of David M. Eldridge (with exhibits A, B, and C). On July 14, 2006, Petitioner filed Petitioner's exhibits (P. Exs.) 1 through 4. On August 10, 2006, the I.G. filed a reply brief (I.G. Reply).

No objection has been made to the admissibility of any of the proposed I.G. exhibits, and I.G. Exs. 1 through 4 are admitted. Petitioner did not mark the declarations he submitted as exhibits in accordance with the procedures for marking exhibits specified by Civil Remedies Division Procedures, a copy of which was provided when the request for hearing was acknowledged. Because it is apparent that Petitioner intended for me to consider the declarations as evidence, I have marked the declaration of Henry Gupton as P. Ex. 5, the declaration of Janice Hicks as P. Ex. 6, and the declaration of David Eldridge as P. Ex. 7. No objection has been received to any of Petitioner's exhibits and P. Exs. 1 through 7 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. The I.G. notified Petitioner by letter dated February 28, 2006, that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Act based upon his conviction of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.

2. On September 19, 2005, Petitioner appeared in the Criminal Court for Anderson County, Tennessee, and entered a plea of nolo contendere (no contest) to a charge of attempted TennCare ⁽¹⁾ Fraud; the plea was accepted; the court ordered that further proceedings be deferred and that Petitioner be placed on supervised probation for 60 days on condition that he pay restitution of $3,851.40 and obey all laws; and the court ordered that at the end of the deferral period the charge of attempted TennCare Fraud be dismissed and the record expunged if Petitioner complied with the specified conditions. I.G. Ex. 2.

3. On December 19, 2005, Judge Elledge of the Criminal Court for Anderson County, Tennessee, ordered that the charge be dismissed, nunc pro tunc (I.G. Ex. 4) and issued an order for expungement of records related to the criminal case against Petitioner (P. Ex. 4).

4. Petitioner timely requested a hearing by letter dated March 13, 2006.

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 within the meaning of section 1128(i) of the Act (42 U.S.C. �1320a-7(i)).

4. Petitioner was convicted of an offense related to the delivery of an item or service under Medicare or a state health care program.

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

C. Issues

The only issue in this case is:

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

D. Applicable Law

Petitioner's right to a hearing by an 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 Medicare and Medicaid programs any individual convicted of a criminal offense related to the delivery of an item or service under title XVIII (Medicare) or under any 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).

The standard of proof is a preponderance of the evidence. 42 C.F.R. � 1001.2007(c). 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).

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 nonmovant 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 facts set forth in the Findings of Fact above are undisputed. Petitioner specifically admits that he was charged with eight counts of violating Tennessee law; that as a result of negotiations with the prosecutor, seven of eight charges were dismissed; and that he pled no contest to a reduced charge of attempted TennCare fraud. P. Brief at 3-4. Petitioner argues that he was not "convicted" within the meaning of the Act and therefore is not subject to exclusion. Whether or not the undisputed facts in this case amount to a "conviction" within the meaning of the Act is an issue of law that may be resolved without the need for further evidentiary development and summary judgment is appropriate on that issue. Because the duration or period of the exclusion is set by the Act, section 1128(c)(3)(E) at five years, there are no material facts subject to dispute related to aggravating or mitigating factors under 42 C.F.R. � 1001.501(b) and the period of exclusion is reasonable as a matter of law.

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.

Clearly 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 is or was to be delivered pursuant to title XVIII of the Social Security Act, which is commonly known as the Medicare program, or under any state health care program.

Petitioner does not dispute that the offense to which he entered a no contest plea was related to the delivery of an item or service under TennCare, a state health care program. Rather, Petitioner argues that he was not convicted within the meaning of the Act. ⁽²⁾

Petitioner argues that Congress did not intend for mandatory exclusion to apply in circumstances such as those of Petitioner. Petitioner sets forth the pertinent text of section 1128(i) of the Act and then engages in a creative bit of statutory interpretation to support his desired conclusion. P. Brief at 6-11. I do not find Petitioner's argument persuasive. Section 1128(i) requires no resort to statutory interpretation to understand its plain meaning. The section specifies that for subsections (a) and (b) of section 1128, an individual is considered to have been "convicted" of a criminal offense in four circumstances. The first specific circumstance applicable to this case is defined by section 1128(i)(3), which provides an individual is convicted "when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court." This language is clear, not ambiguous or subject to other meanings. In this case, the order of the Criminal Court for Anderson County, Tennessee, clearly establishes that Petitioner entered a plea of nolo contendere, a fact not disputed by Petitioner, and the pleas was "accepted" by the court. I.G. Ex. 2. Both conditions specified by section 1128(i)(3) for a conviction are thus met. Contrary to the arguments of Petitioner, there is no indication in the statute that Congress intended for a subsequent expungement of a criminal record to negate the fact that a no contest plea was "accepted" and a conviction within the meaning of the Act occurred. Petitioner cites no prior decisions that have approved the reasoning he advances.

The second specific circumstance applicable in Petitioner's case is defined by section 1128(i)(4), which provides that a conviction has occurred when the individual "has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld." Clearly that is what occurred in Petitioner's case. He entered a plea bargain with the prosecution under which he pled no contest to a lesser offense in exchange for a deferred adjudication, i.e., if he complied with the court order for restitution and to obey the law for 60 days, no judgment would be entered, the charge would be dismissed, and the record expunged. Section 1128(i)(4) is clear in its plain meaning and there is no need to resort to statutory interpretation. Petitioner's suggestion that the expungement of the records of Petitioner's arrest and prosecution was intended by Congress to negate the fact of conviction flies in the face of the plain meaning of the Act. Again, Petitioner cites no decision of any court or agency that has accepted his reasoning.

I conclude that Petitioner was convicted within the meaning of the Act and his conviction was for a criminal offense related to the delivery of an item or service under a state health care program. Accordingly, there is a basis for Petitioner's exclusion and his exclusion is required by Congress under 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 the minimum period of exclusion pursuant to section 1128(a) is five years as mandated by section 1128(c)(3)(B) if I determine Petitioner is subject to mandatory exclusion. P. Brief at 2. I have found there is a basis for Petitioner's exclusion pursuant to section 1128(a) 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 the minimum statutory period of five years effective March 20, 2006.

Keith W. Sickendick

Administrative Law Judge

1. A Tennessee state health care program.

2. Petitioner alludes to other arguments in a footnote to his brief but asserts that I have no jurisdiction to decide those issues and so they are not discussed. P. Brief at 6, fn. 2. The I.G. refers to the footnote in Petitioner's brief, but also declines to discuss the issues. Accordingly, the issues to which Petitioner alludes are not addressed herein other than this reference.