SUBJECT:

Randall Keith Dixon,

Petitioner,

The Inspector General.

DECISION

I sustain the decision of the Inspector General (I.G.) to exclude Petitioner, Randall Keith Dixon, from participating in Medicare and other federally funded health care programs for a period of five years.

I. Background

Petitioner is a physician's assistant. On June 30, 2006, the I.G. notified Petitioner that he was being excluded from participating in Medicare and other federally funded health care programs. The I.G. cited section 1128(a)(3) of the Social Security Act (Act) as authority for his exclusion determination. The period of exclusion imposed by the I.G. was for five years, the minimum period that is mandated for exclusions imposed pursuant to section 1128(a)(3) of the Act.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a pre-hearing conference at which I established a schedule for the parties to submit briefs and proposed exhibits. I advised the parties that either of them had the right to request that I convene a hearing in person.

The I.G. submitted a brief and a reply brief. Additionally, the I.G. submitted nine proposed exhibits consisting of I.G. Ex. 1 - I.G. Ex. 9. Petitioner submitted a brief without exhibits. Petitioner did not object to my receiving any of the I.G.'s proposed exhibits into evidence. Consequently, I receive into evidence I.G. Ex. 1 - I.G. Ex. 9. Neither the I.G. nor Petitioner requested that I convene an in-person hearing.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. The I.G. is mandated to exclude Petitioner as a consequence of his conviction of a criminal offense as is defined at section 1128(a)(3) of the Act; and

2. The five-year exclusion imposed by the I.G. is reasonable as a matter of law.

B. 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. The I.G. is mandated to exclude Petitioner.

Section 1128(a)(3) of the Act mandates the I.G. to exclude an individual

that has been convicted for an offense which occurred after . . . [August 21, 1996] under Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program . . . operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct. ⁽¹⁾

The facts of this case plainly establish that Petitioner was convicted of such an offense. Consequently, the I.G. is required to exclude him.

On December 19, 2003, Petitioner was indicted in the United States District Court for the District of Montana, Great Falls Division, on a single count of having stolen more than $1,000 from an Indian tribal organization, the Rocky Boy Health Board. I.G. Ex. 5, at 1. Petitioner entered into an agreement to plead guilty to this indictment on August 3, 2004. I.G. Ex. 6. In signing the plea agreement, Petitioner admitted that he "knowingly stole and converted to his use monies and funds of the Rocky Boy Health Board, an Indian tribal organization . . . ." Id. at 2, 8. In signing the plea agreement, Petitioner also acknowledged that the crime to which he was pleading guilty is a Class D felony. Id. at 3. Pursuant to Petitioner's guilty plea, a United States District Judge adjudicated Petitioner guilty of the crime charged in the indictment in a judgment imposed December 6, 2004. I.G. Ex. 7, at 1. These facts are sufficient to prove that Petitioner was "convicted" of a criminal offense, as defined in sections 1128(i)(2) and (3) of the Act, because he pled guilty, his guilty plea was accepted by the court, and the court made a finding of guilt against him. Moreover, Petitioner does not dispute that he was convicted. Petitioner's brief at 1.

The facts of Petitioner's indictment and conviction, while sparse, are in and of themselves sufficient for me to infer that the offense of which Petitioner was convicted is the type of offense described at section 1128(a)(3) of the Act. The Act mandates exclusion of any individual who is convicted of a serious financial crime in connection with the delivery of health care items or services or whose financial crime victimizes a government-funded health care program. The United States Attorney for the District of Montana filed an offer of proof in connection with Petitioner's indictment which contains the following facts. During August 2003, Petitioner was employed as a physician's assistant by the Rocky Boy Health Board/Clinic. I.G. Ex. 4, at 2. On August 19, 2003, Petitioner made telephone contact with a local bank branch at which the clinic had a checking account and requested, unlawfully, that $4,000 be transferred from the Rocky Boy Health Board's bank account to his personal account. Id. The bank completed the transfer request. Id. Thus, Petitioner pled guilty to stealing funds used for the operation of a health care program, the clinic operated by the Rocky Boy Health Board, an Indian tribal organization.

However, the facts of Petitioner's indictment and conviction are not the only evidence in this case establishing that Petitioner was convicted of an offense as described at section 1128(a)(3). Additional evidence makes it clear that Petitioner stole from the checking account of a government-funded health care program money which, but for the theft, would have been used to pay for health care items or services to eligible Indians.

In addition to the documents relating to Petitioner's indictment and conviction, the I.G. has submitted a declaration executed by the Rocky Boy Health Board's finance manager. I.G. Ex. 3. In her declaration the finance manager avers that the money that was in the board's bank accounts was used for the provision of health care services to Rocky Boy patients. Id. at 1. She opines that Petitioner's theft of money from Rocky Boy's bank account had a direct financial impact on Rocky Boy's ability to provide health care services to its patients. Id. In addition, the finance manager states that 15 percent of the funding for Rocky Boy comes from the Medicaid program. Id. Thus, the I.G. has shown that the crime of which Petitioner was convicted satisfies both prongs of section 1128(a)(3). That is, Petitioner was convicted of a financial crime in connection with the delivery of health care items and services, in that the crime had an impact on Rocky Boy's ability to deliver such items and services. In addition, the victim of Petitioner's crime, Rocky Boy, is a health care program that is financed, in part, by Medicaid, a program that is jointly funded by the state and federal governments.

Petitioner makes two arguments to challenge the I.G.'s exclusion determination. I find them to be without merit. First, Petitioner argues that his conviction is for theft from a "tribal organization" and not a health care program. Petitioner's brief at 1. But, the fact that the Rocky Boy Health Board is a tribal organization does not derogate from the fact that its purpose was to provide health care to eligible Indians. The terms "tribal organization" and "health care program" are not mutually exclusive in this case.

Second, Petitioner argues that the money he stole was not from an account operated by a health care program but from a "tribal leadership account." He asserts that there was no connection between the money he stole and the operations of the Rocky Boy Health Board. Petitioner has provided no evidence to support this assertion and I find no basis in the record of this case to sustain it. Indeed, even if I were to regard Petitioner's assertion in his brief as a declaration of fact, I would find it to be less credible than the evidence presented by the I.G. The declaration of the Rocky Boy Health Board's finance manager (I.G. Ex. 3) was made under oath by an individual with no apparent personal interest in the outcome of this case. As discussed above, she declares that the money Petitioner stole was directly related to the provision of health care services. In contrast, Petitioner has an obvious interest in the outcome of these proceedings, and the statements in his brief were not made under oath or under penalty of perjury. Moreover, Petitioner's argument is an impermissible attempt to relitigate the facts of his conviction. Petitioner explicitly pled guilty to, and was convicted of, stealing funds from the Rocky Boy Health Board and not from some "tribal leadership account" as he now contends. ⁽²⁾

2. An exclusion of five years is reasonable because it is the minimum period that is mandated by law for an exclusion that is imposed pursuant to section 1128(a)(3) of the Act.

An exclusion that is imposed pursuant to section 1128(a)(3) of the Act must be for at least five years. Act, section 1128(c)(3)(B). In this case the I.G. excluded Petitioner for five years, the minimum period mandated by law. Consequently, the exclusion is reasonable as a matter of law.

Steven T. Kessel

Administrative Law Judge

1. August 21, 1996 is the date of enactment of the Health Insurance Portability and Accountability Act of 1996, also known as "HIPAA."

2. The I.G.'s Reply brief interprets Petitioner's brief to argue, in addition, that Petitioner may not be excluded inasmuch as the I.G. failed to exclude him pursuant to section 1128A of the Act, the civil money penalty law. This is a mischaracterization of Petitioner's argument. Although Petitioner cites section 1128A as legal authority in his brief, he does not contend that the exclusion in this case is in some way subject to the requirements of the civil money penalty law.