SUBJECT:

Yvette McIntosh,

Petitioner,

The Inspector General

DECISION

I decide to sustain the determination of the Inspector General (I.G.) to exclude Yvette McIntosh (Petitioner) from participating in the Medicare, Medicaid, and all Federal health care programs for a period of three years.

Background

By letter dated June 28, 2002 the I.G. notified Petitioner that she was being excluded from participation in the Medicare, Medicaid, and all Federal health care programs, as defined in section 1128B(f) of the Social Security Act (Act), for a minimum period of three years. The I.G. informed Petitioner that she was being excluded pursuant to section 1128(b)(1) of the Act, due to her conviction in the State of Michigan, 36^th Judicial District Court, of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

A letter was sent from the Civil Remedies Division of the Departmental Appeals Board to Petitioner on August 12, 2002, acknowledging receipt of her July 9, 2002 request for hearing. In that letter Petitioner was informed that I would conduct a prehearing conference by telephone on August 26, 2002 at 11:00 a.m. Eastern Time. Instructions in the letter specified that Petitioner was to provide the Civil Remedies Division with a telephone number at least five days prior to the conference call. Petitioner failed to do so.

The telephone conference was rescheduled for Friday, September 13, 2002 at 11:00 a.m. Eastern Time. Again, Petitioner did not provide her telephone number prior to the September 13, 2002 prehearing conference date. Inasmuch as I determined that there are no factual issues in dispute, I established briefing deadlines by order dated November 8, 2002.

The I.G. has made written submissions in support of her contentions. Additionally, the I.G. submitted five proposed exhibits. These have been identified as I.G. Exhibits 1 through 5 (I.G. Ex.). Petitioner has submitted no arguments or documentary evidence in support of her request for hearing. The substance of her position is contained in her request for hearing, which I hereby enter into the record as ALJ Ex. 1. I also admit into evidence I.G. Exs.1 through 5 without objection.

I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that Petitioner was convicted of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct. Additionally, I find that the three-year exclusion imposed by the I.G. is not unreasonable.

2. Whether the three-year period of exclusion imposed by the I.G. is unreasonable.

Section 1128(b)(1)(B) of the Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from participation in any Federal health care program (as defined in 1128B(f)) any individual convicted under Federal or State law of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

An exclusion under section 1128(b)(1)(B) shall be for a period of three years, unless the Secretary determines in accordance with published regulations that a shorter period is appropriate because of mitigating circumstances or that a longer period is appropriate because of aggravating circumstances. Section 1128(c)(3)(D) of the Act; 42 C. F. R. � 1001.201(b)(1).

Pursuant to 42 C.F.R. � 1001.2007, a person excluded under 1128(b)(1) may file a request for hearing before an Administrative Law Judge (ALJ).

Section 1128(b) of the Act authorizes the Secretary to exclude individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other Federal health care programs.

Findings of Fact And Conclusions of Law

1. Petitioner was a certified nurse assistant (CNA) in St. Claire Shores, Michigan, where she was employed by St. Mary's Nursing Home. I.G. Ex. 1; ALJ Ex. 1.

2. On September 28, 2000 a criminal complaint was filed in the 36^th Judicial District Court, State of Michigan, against Petitioner, charging her with a misdemeanor count of knowingly obtaining or attempting to obtain telecommunications service with the intent to avoid any lawful charge for the telecommunications service by using false identification. I.G. Ex. 3.

3. The criminal charges arose from Petitioner paying another CNA employed by St. Mary's Nursing Home the sum of $30.00, so that Petitioner could obtain telephone service at home using a resident's identity. I.G. Ex. 1. The service was provided from June 13 through October 11,1999 and resulted in an outstanding bill of $665.00 left unpaid when the service was disconnected.

4. On July 11, 2001 Petitioner plead guilty to a one count misdemeanor criminal complaint, charging Petitioner with intentional avoidance of lawful charges for telecommunications services in violation of M.C.L. 750.219. I.G. Ex. 4. Petitioner was placed on one year probation and ordered to pay $765.43 in restitution and costs. I.G. Ex.

6. Petitioner's guilty plea constitutes a conviction within the meaning of section 1128(i)(1) of the Act.

7. Petitioner was convicted of a criminal offense consisting of a misdemeanor related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.

8. An exclusion imposed under section 1128(b)(1) of the Act will be for a period of three years, unless specified aggravating or mitigating factors are present which form a basis for lengthening or shortening the period of exclusion. Section 1128(c)(3)(D)of the Act; 42 C.F.R. � 1001.201(b)(1).

9. The I.G. had a basis for excluding Petitioner from participation in Medicare, Medicaid, and all Federal health care programs.

10.The three-year period of exclusion imposed by the I.G. is not unreasonable.

Discussion

1. The I.G. had a basis for excluding Petitioner.

The Petitioner was a CNA at St. Mary's Nursing Home in St. Claire Shores, Michigan. On September 28, 2000 a criminal complaint was filed in the 36^th Judicial District Court, State of Michigan, against Petitioner charging her with one misdemeanor count of knowingly obtaining or attempting to obtain telecommunications service with the intent to avoid, or attempt to avoid, any lawful charge for that service by using a false identification. On July 11, 2001 Petitioner pleaded guilty and was placed on one year probation and ordered to pay $765.43 in restitution and costs.

By letter dated June 28, 2002 the I.G. notified Petitioner that she was being excluded from participation in Medicare, Medicaid, and all other Federal health care programs.

Petitioner has not disputed the charges brought against her, except to claim that the real guilty party is one Sheree Estes. ALJ Ex. 1. The issue before me, however, is whether the I.G. had a basis for excluding Petitioner from Medicare, Medicaid, and all other Federal health care programs pursuant to section 1128(b)(1) of the Act. Inasmuch as Petitioner was convicted of a criminal offense consisting of a misdemeanor related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service, I must find that a basis exists for the I.G.'s exclusion action.

I must also note that Petitioner's claim of innocence is unavailing. Section 1001.2007(d) of 42 C.F.R. provides that:

When the exclusion is based on the existence of a conviction, . . . the basis for the underlying determination is not reviewable and the individual or entity may not collaterally attack the underlying determination...

42 C.F.R. � 1001.2007(d). See also Peter J. Edmonson, DAB No. 1330 (1992).

In view of the foregoing, I conclude that Petitioner was properly excluded by the I.G. from participating in Medicare, Medicaid, and all other Federal health care programs.

2. The length of the exclusion is not unreasonable.

I also find the length of the exclusion is not unreasonable inasmuch as Petitioner was excluded for the minimum three-year period prescribed by law, and no mitigating factors are present in this case. 42 C.F.R. � 1001.201(b)(1). The exclusion period also complies with the purpose of the Act which is to protect federally funded health care programs and their beneficiaries and recipients from untrustworthy individuals.

Conclusion

The I.G. is authorized to exclude Petitioner from Medicare, Medicaid, and all Federal health care programs pursuant to section 1128(b)(1) of the Act. The exclusion of Petitioner is reasonable and appropriate for a period of three years.

Jose A. Anglada
Administrative Law Judge