Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Stanley A. Bittman, Ph.D.
Petitioner,
- v. -
The Inspector General.
DATE: September 24, 1991
Docket No. C-383
DECISION
On March 27, 1991 the Inspector General (I.G.) notified Petitioner that he
was being excluded from
participation in Medicare and any State health care program for a period of
five years. 1/ The I.G. told
Petitioner that he was being excluded as a result of his conviction of a criminal
offense related to the
delivery of an item or service under Medicaid. Petitioner was advised that the
exclusion of individuals
convicted of such an offense is mandated by section 1128(a)(1) of the Social
Security Act (Act). The I.G.
further advised Petitioner that the law required that the minimum period of
such an exclusion be for not
less than five years. The I.G. informed Petitioner that he was being excluded
for the minimum mandatory
period of five years.
Petitioner timely requested a hearing and the case was assigned to me for a
hearing and a decision. The
I.G. moved for summary disposition. Petitioner filed a response to the motion.
I have considered the arguments made by the I.G. in his motion as well as those
made by Petitioner in his
response to the motion. I have also considered the undisputed material facts
of this case and applicable
law. I conclude that the five-year exclusion imposed and directed by the I.G.
against Petitioner is
mandated by law. Therefore, I enter summary disposition in favor of the I.G.
ISSUE
The issue in this case is whether Petitioner was convicted of a criminal offense
within the meaning of
section 1128(a)(1) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On November 28, 1990 Petitioner was charged with and pled guilty to a criminal
misdemeanor offense
in a Kentucky State court. I.G. Ex. 2/1-4. 2/
2. Petitioner pled guilty to the criminal offense of making, presenting, or
causing the submission of false
or fraudulent information on cost reports to an employee or officer of the Kentucky
Medical Assistance
Program and knowing such cost report to contain false, fictitious, or fraudulent
information. See I.G. Ex.
2/1-4; KRS 205.850(4), 205.990(5), 502.020.
3. The Kentucky Medical Assistance Program is the Kentucky State agency which
is charged with
implementing that State's Medicaid program. KRS 205.510 - 205.630.
4. Petitioner was an official of an entity which did business with the Kentucky
Medicaid program. By
allowing false cost reports to be filed with Medicaid, Petitioner abetted the
fraudulent inflation of
reimbursement received by the entity from Medicaid.
5. Petitioner was convicted of a criminal offense related to the delivery of
an item or service under
Medicaid. Findings 1-4; Social Security Act, section 1128(a)(1).
6. The Secretary of the Department of Health and Human Services (Secretary)
delegated to the I.G. the
authority to determine, impose, and direct exclusions pursuant to section 1128
of the Act. 48 Fed. Reg.
21662 (May 13, 1983).
7. On March 27, 1991, the I.G. excluded Petitioner from participating in Medicare
and directed that he be
excluded from participating in Medicaid, pursuant to section 1128(a)(1) of the
Act.
8. There are no disputed issues of material fact in this case and summary disposition
is appropriate.
Findings 1-4.
9. The exclusion imposed and directed against Petitioner by the I.G. is for
five years, the minimum period
required under the Act. Social Security Act, sections 1128(a)(1) and 1128(c)(3)(B).
10. The exclusion imposed and directed against Petitioner by the I.G. is mandated
by law. Findings 5, 9;
Social Security Act, section 1128(a)(1).
ANALYSIS
There are no disputed material facts in this case. The undisputed facts are
that on November 28, 1990,
Petitioner pled guilty to a state misdemeanor offense of making, presenting,
or causing the submission of
false or fraudulent information on cost reports to an officer or employee of
Kentucky's Medicaid program.
His guilty plea amounted to admission of fraud against Medicaid. The I.G. imposed
and directed a five-
year exclusion against Petitioner in March 1991, pursuant to section 1128(a)(1)
of the Act.
Section 1128(a)(1) requires the Secretary (or his delegate, the I.G.) to exclude
from participation in
Medicare, and to direct the exclusion from participation in Medicaid, of:
[a]ny individual or entity that has been convicted of a criminal offense related
to the delivery of an item
or service under . . . [Medicare] or under . . . [Medicaid].
By allowing false cost reports to be filed with Medicaid, Petitioner abetted
the fraudulent inflation of
reimbursement received by the entity from that program. Medicaid was the victim
of Petitioner's fraud.
Petitioner's conviction for allowing false or fraudulent information to be filed
with the Kentucky Medicaid
program constitutes a criminal offense within the meaning of section 1128(a)(1).
Napoleon S. Maminta,
M.D., DAB App. 1135 (1990).
Petitioner contends that he played only a passive role in any crimes perpetrated
against the Kentucky
Medicaid program. He asserts that the Kentucky Attorney General acknowledged
Petitioner's passive role
by permitting him to plead guilty to a misdemeanor, rather than to a felony
offense. I accept these
assertions as true for purposes of deciding the I.G.'s motion for summary disposition.
Even with that
factual background, I nevertheless find that Petitioner pled guilty to a criminal
offense within the meaning
of section of 1128(a)(1) of the Act. This section does not distinguish between
levels of culpabil-ity in
crimes related to the delivery of an item or service under Medicare or Medicaid.
A conviction of a
criminal offense as defined by section 1128(a)(1) mandates an exclusion.
Petitioner also contends that the Commissioner of the Kentucky Department for
Medicaid Services will
likely request the Secretary to waive Petitioner's exclusion pursuant to section
1128(c)(3)(B) of the act.
Petitioner requests that I defer my decision in this case until final action
by the Secretary on the waiver
request.
The authority of the Secretary to waive an exclusion is unrelated to my duty
to decide hearing requests
pursuant to section 1128. The Secretary may either grant or deny such a request
without regard to my
decision on the exclusion. Therefore, there is no ground for me to defer my
decision.
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the five-year
exclusion from
participating in Medicare and Medicaid imposed and directed against Petitioner
by the I.G. was mandated
by sections 1128(a)(1) and 1128(c)(3)(B) of the Act. Therefore, I enter summary
disposition in favor of
the I.G., sustaining the five-year exclusion.
____________________________
Steven T. Kessel
Administrative Law Judg
1. "State health care program" is defined by section 1128(h) of the
Social Security Act to cover three types
of federally-financed health care programs, including Medicaid. I use the term
"Medicaid" hereafter to
represent all State health care programs from which Petitioner was excluded.
2. The I.G. attached seven exhibits to his motion for summary disposition.
Petitioner did not contest the
authenticity or relevancy of these exhibits, nor has he denied the relevant
material facts contained in the
exhibits. I have admitted the exhibits into evidence. I refer to the I.G.'s
exhibits as "I.G. Ex.
(number)/(page)."