Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Catherine Dodd,
Petitioner,
- v. -
The Inspector General.
DATE: March 16, 1992
Docket No. C-384
DECISION
On April 18, 1991, the Inspector General (I.G.) notified Petitioner that she
was being excluded from
participation in Medicare and State health care programs for a period of five
years. 1/ The I.G. told
Petitioner that she was being excluded as a result of her conviction of a criminal
offense related to the
delivery of an item or service under Medicare. 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 required minimum period of such an exclusion
is five years. The I.G.
informed Petitioner that she was being excluded for the minimum mandatory five
year period.
On May 8, 1991, Petitioner timely requested a hearing and the case was assigned
to me for hearing and
decision. The I.G. moved for summary disposition. Petitioner filed a written
response to the I.G.'s motion
for summary disposition.
On November 8, 1991, I issued a ruling which denied the I.G.'s motion for summary
disposition on the
grounds that the I.G. had not proven that Petitioner was convicted of a criminal
offense related to the
delivery of a Medicare or Medicaid item or service. In that ruling, I stated
specifically that the evidence
presented by the I.G. was insufficient to establish that Petitioner had been
convicted of a criminal offense
within the meaning of 1128(a)(1). I provided examples of evidence which would
meet the statutory test
for a conviction related to the delivery of a Medicare or Medicaid item or service.
Ruling Denying the
Inspector General's Motion for Summary Disposition, November 8, 1991.
I gave the I.G. until December 16, 1991 to renew his motion for summary disposition.
The I.G. timely
renewed his motion. During a January 31, 1992 telephone conference, I advised
the I.G. that the
documents which he submitted in connection with his initial and renewed motion
for summary disposition
still did not provide proof that Petitioner had been convicted of a criminal
offense within the meaning of
section 1128(a)(1). 2/ However, because my November 8, 1991 ruling did not specifically
state that I
would decide the case in favor of Petitioner in the event the I.G. did not meet
his burden, I told the I.G. that
I would allow him until February 14, 1992 to again either renew his motion for
summary disposition or to
advise me that he desired an in-person evidentiary hearing. I further advised
the I.G. that, if he elected
again to move for summary disposition and again failed to satisfy me that he
had established a basis for
excluding Petitioner under section 1128(a)(1), I would enter summary disposition
in Petitioner's favor.
On February 14, 1992, the I.G. submitted his second renewed motion for summary
disposition. I have
carefully considered the evidence offered by the I.G. in connection with his
initial motion for summary
disposition and in his two renewed motions. For purposes of this decision, I
have accepted all of the facts
as alleged by the I.G. as true. I conclude that the I.G. has not established
that Petitioner was convicted of a
criminal offense within the meaning of section 1128(a)(1) of the Act. The I.G.
has not proved that he has
authority to exclude Petitioner under that section. Therefore, I enter summary
disposition in favor of
Petitioner, vacating the exclusion imposed and directed against her by the I.G.
ISSUE
The issue before me in this case is whether Petitioner was convicted of a criminal
offense related to the
delivery of an item or service under Medicare or Medicaid within the meaning
of section 1128(a)(1) of the
Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On May 31, 1990, Petitioner pled guilty to, and was convicted of, the offense
of knowingly or
intentionally making a false written statement to obtain property, in violation
of Texas Penal Code
Annotated, Section 32.32. I.G. Ex. 1; Hughes Aff. 1. 3/
2. Petitioner admitted that the criminal activity for which she was convicted
occurred on October 1, 1989.
I.G. Ex. 1.
3. The criminal charge against Petitioner, her plea of guilty and conviction,
resulted from an investigation
conducted by the Texas Attorney General's Medicaid Fraud Unit beginning November
27, 1989 at the
Brookhaven Nursing Center in Cheyenne, Texas. I.G. Ex. 2.
4. Brookhaven Nursing Center is a medical facility receiving funds under the
Texas Medicaid
Program. I.G. Ex. 2.
5. Petitioner admitted to Nora E. Longoria, the investigator for the Texas
Attorney General's Medicaid
Fraud Unit, that she had converted for her own use medications provided for
four patients (Peggy Bang,
Dorothy Crowson, Creda Hoga, and James Martin) and had falsified these patients'
treatment records. I.G.
Ex. 2.
6. On November 28, 1989, Petitioner signed a statement which was witnessed
by Ms. Longoria, in which
Petitioner admitted that, starting around the beginning of October, 1989, she
had converted to her own use
medications provided for residents at the Brookhaven Nursing Facility. I.G.
Ex. 8.
7. In her statement, Petitioner admitted converting to her own use medication
provided for patients,
including Creda Hoga, Dorothy Crowson, Peggy Bang, Gertrude Clark, and James
Martin. I.G. Ex. 8.
8. James Martin was not a resident at the Brookhaven Nursing Facility on October 1, 1989. I.G. Ex. 6.
9. Creda Hoga was a resident at the Brookhaven Nursing Facility on October
1, 1989, and was a Medicare
beneficiary occupying a Medicare skilled nursing facility bed as of that date.
I.G. Ex. 6.
10. Dorothy Crowson was a resident at the Brookhaven Nursing Facility on October
1, 1989, and was
eligible for Medicaid. I.G. Ex. 5.
11. The I.G. did not prove that Brookhaven Nursing Facility presented a claim
to a Medicaid program for
items or services provided to Dorothy Crowson on October 1, 1989. I.G. Ex. 6.
12. Peggy Bang was a resident at the Brookhaven Nursing Facility on October
1, 1989, and was eligible
for Medicaid. I.G. Ex. 5.
13. The I.G. did not prove that Brookhaven Nursing Facility presented a claim
to a Medicaid program for
items or services provided to Peggy Bang on October 1, 1989. I.G. Ex. 6.
14. The I.G. did not prove that Gertrude Clark was a resident at the Brookhaven
Nursing Facility on
October 1, 1989, and did not prove that Gertrude Clark was either a Medicare
beneficiary or a Medicaid
recipient.
15. The Judgment of Conviction which was entered against Petitioner does not
name the individual whose
medical records were falsified by Petitioner. I.G. Ex. 1.
16. The I.G. has not established by extrinsic evidence the name of the individual
whose medical records
Petitioner was convicted of falsifying. See I.G. Ex. 1 - 8.
17. Petitioner was convicted of a criminal offense within the meaning of section 1128(i) of the Act.
18. The I.G. did not prove that Petitioner was convicted of a criminal offense
related to the delivery of an
item or service under Medicare or Medicaid.
19. There are no disputed issues of material fact in this case and summary disposition is appropriate.
20. The I.G. has not proven that he has authority to exclude Petitioner pursuant
to section 1128(a)(1) of
the Act.
ANALYSIS
The threshold issue in this case is whether Petitioner was "convicted"
of a criminal offense within the
meaning of section 1128(i) of the Act. Petitioner's plea of guilty to criminal
charges in a Texas State court
meets the statutory definition of conviction. Section 1128(i)(3) defines a conviction
to include the
circumstance where a plea of guilty has been accepted by a State court. Here,
Petitioner pleaded guilty to a
crime and that plea was accepted. Findings 1 and 17.
The issue which is central to this case is whether Petitioner was convicted
of a criminal offense related to
the delivery of an item or service under Medicare or Medicaid program, within
the meaning of section
1128(a)(1) of the Act. Inasmuch as the I.G. excluded Petitioner pursuant to
this section, the I.G. must
show that her conviction fell within the meaning of that section in order to
establish that he had the
authority to exclude Petitioner.
The relevant facts of this case are detailed below. Petitioner was employed
as a nurse at the Brookhaven
Nursing Facility, a Texas nursing facility which treats both Medicare beneficiaries
and Medicaid recipients.
On November 27, 1989, an investigator from the Texas Medicaid Fraud Unit confronted
Petitioner
concerning a discrepancy between a patient's records, which recorded that the
patient was being
administered a prescription medication, and the patient's assertion that, in
fact, she was being administered
another, nonprescription medication instead. I.G. Ex. 2.
Petitioner admitted to having converted to her own use medications which had
been provided for patients
at the Brookhaven Nursing Facility and falsifying patients' treatment records
to cover up these acts. She
denied having converted to her own use medication from the patient whose statement
prompted the
investigation. I.G. Ex. 2. However, she admitted to the investigator having
converted to her own use
medication from four named patients (Peggy Bang, Dorothy Crowson, Creda Hoga,
and James Martin) and
falsifying their treatment records. Id. On November 28, 1989, Petitioner signed
a statement in which she
admitted that "around the beginning of October" 1989, she began taking
medication from patients. I.G. Ex.
8. In that statement, she named the patients whose medications she had converted
to her own use as
including Creda Hoga, Dorothy Crowson, Peggy Bang, Gertrude Clark, and James
Martin. Id.
On May 31, 1990, Petitioner pleaded guilty in a Texas State court to the criminal
charge of making a false
statement to obtain property. The Judgment of Conviction and Sentence recites
that the offense to which
Petitioner occurred on the first day of October, 1989. I.G. Ex. 1. The document
does not state the
particulars of Petitioner's offense. Specifically, it does not identify the
false statement which Petitioner
made or the circumstances under which it was made. Id. The I.G. has offered
no evidence from either the
State court or from other sources connected with Petitioner's conviction (such
as the prosecuting attorney)
which would explain the circumstances of the offense of which Petitioner was
convicted.
However, it is reasonable to infer that Petitioner's conviction emanated from
the investigation at the
Brookhaven Nursing Facility and Petitioner's admissions to the Medicaid investigator.
In her report, the
investigator recommended that Petitioner's case be referred to the local prosecutor.
I.G. Ex. 2. Petitioner's
admission of having begun converting patients' medication and altering their
treatment records around the
beginning of October, 1989, closely dovetails with the October 1, 1989 date
of the offense recited in the
Judgment of Conviction and Sentence. I.G. Exs. 1, 8.
Therefore, it is reasonable to conclude Petitioner's conviction of a single
count of making a false statement
to obtain property relates to an episode in which Petitioner falsified the treatment
records of at least one of
the patients whose medication Petitioner admitted converting to her own use.
These individuals include,
but by Petitioner's admission, are not limited to, Creda Hoga, Dorothy Crowson,
Peggy Bang, Gertrude
Clark, and James Martin.
The I.G. offered evidence which establishes that, as of October 1, 1989, James
Martin was not a patient at
the Brookhaven Nursing Facility. His admission to the facility began on October
18, 1989. I.G. Ex. 6.
Therefore, Mr. Martin could not be the patient whose records Petitioner was
convicted of having falsified
on October 1, 1989.
The I.G. has offered no evidence concerning Gertrude Clark. It is therefore
not established that she was a
patient at the Brookhaven Nursing Facility on October 1, 1989, nor is it established
that Ms. Clark was
receiving either Medicare or Medicaid items or services at the facility.
The I.G. has established that, as of October 1, 1989, Creda Hoga was occupying
a Medicare skilled nursing
facility bed at the Brookhaven Nursing Facility. I.G. Ex. 5. The I.G. has also
established that Dorothy
Crowson and Peggy Bang were eligible for itmes or services under the Texas Medicaid
program, and that
Peggy Bang was eligible for Medicare while at Brookhaven. I.G. Exs. 5, 6. However,
the I.G. has offered
no evidence to show that these patients' stays in the facility or any items
or services which they received
during their stays were covered by the Texas Medicaid program. More importantly,
the I.G. has not
shown, with respect to Crowson and Bang, that these patients received any Medicare
or Medicaid items or
services on October 1, 1989, the date that, according to the criminal information,
provides the basis for
Petitioner's conviction. I.G. Ex. 7.
The I.G. asserts that, based on these undisputed material facts, he has proven
that Petitioner was convicted
of a criminal offense within the meaning of section 1128(a)(1) of the Act. I
disagree. The evidence fails to
prove that Petitioner was, in fact, convicted of a criminal offense related
to the delivery of an item or
service under Medicare or the Texas Medicaid program. Although the I.G. has
offered evidence which
shows that the offense of which Petitioner was convicted might be related to
the delivery of a Medicare or
Medicaid item or service, he has not adduced sufficient proof to establish that
the conviction is related to
the delivery of a Medicare or Medicaid item or service. The I.G. has thus failed
to meet his duty to
establish proof of authority to exclude Petitioner under section 1128(a)(1).
In his initial motion for summary disposition, the I.G. asserted that the requisite
nexus for a conviction
under section 1128(a)(1) was established by virtue of the fact that Petitioner
was employed at a nursing
home which treated Medicare and Medicaid patients and committed a crime during
the course of her duties
at that facility. As I announced in my November 8, 1991 ruling, I was not persuaded
by that argument, and
I restate the reasons here.
Section 1128(a)(1) specifically requires that, as a basis for an exclusion,
a party must be convicted of a
criminal offense related to the delivery of an item or service under Medicare
or Medicaid. The fact that an
individual commits a crime during the course of his or her employment by a facility
which receives
Medicare or Medicaid reimbursement is not in and of itself sufficient to meet
the statutory test, because
such a conviction would not necessarily relate to the delivery of a Medicare
or Medicaid item or service.
The I.G.'s theory, expressed in his initial motion for summary disposition,
is so broad as to make any
criminal offense committed on the premises of a facility which receives Medicare
or Medicaid
reimbursement a criminal offense within the meaning of section 1128(a)(1). The
logical extension of his
argument would, for example, encompass a simple battery by an employee on a
coworker. This analysis
departs from the plain meaning of the Act. Furthermore, it would make section
1128(a)(1) so broad in its
application as to render virtually meaningless the remainder of sections 1128(a)
and (b).
The Act does not define the term "criminal offense related to the delivery
of an item or service." However,
a criminal offense has been held to meet the statutory test where the delivery
of an item or service is an
element in the chain of events giving rise to the item or service. Jack W. Greene
DAB 1078 (1989); aff'd
sub nom. Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990) (Greene);
Larry W. Dabbs, R. Ph.
et al., DAB CR151 (1991) (Dabbs). A criminal offense has also been held to meet
the statutory test where
Medicare or a Medicaid program was the victim of a party's criminal offense.
Napoleon S. Maminta,
M.D., DAB 1135 (1990) (Maminta).
In Greene, the petitioner was convicted of filing a fraudulent Medicaid reimbursement
claim. An appellate
panel of the Departmental Appeals Board held that the offense was an offense
within the meaning of
section 1128(a)(1), inasmuch as it arose from the providing of a Medicaid item
or service (a prescription
for a Medicaid-covered drug). In Dabbs, the petitioners were convicted of the
crime of mislabeling drugs.
I concluded that this offense was related to the delivery of a Medicaid item
or service. The basis for my
conclusion was that the act of mislabeling grew out of events which necessarily
included the petitioners'
filling certain prescriptions for Medicaid items or services and presenting
Medicaid reimbursement claims
for those items or services.
In Maminta, an appellate panel sustained findings that the petitioner had been
convicted of a criminal
offense consisting of unlawfully converting to his use a Medicare reimbursement
check which was payable
to another party. The appellate panel held that petitioner had been convicted
of a criminal offense within
the meaning of section 1128(a)(1), in that Medicare was the victim of his crime.
The I.G. has not contended that Petitioner was convicted of having converted
to her use medications which
belonged to Medicare or Medicaid. Nor has the I.G. asserted that these programs
were the victims of
Petitioner's crime. Therefore, the I.G. is not arguing that Petitioner's offense
falls within the Maminta test.
Thus, in order for me to find that Petitioner was convicted of a criminal offense
within the meaning of
section 1128(a)(1), I must find some nexus between Petitioner's conviction and
an identified Medicare or
Medicaid item or service. The starting point for deciding whether the test has
been met here is to analyze
the status of the patients whose medications were converted by Petitioner and
whose records were falsified.
However, as I stated in my November 8, 1991 ruling, that is only the starting
point of the analysis.
The document containing Petitioner's guilty plea identifies the date on which
her crime occurred (October
1, 1989) and the nature of her offense (making a false statement to obtain property).
It does not identify
the specific false statement made by Petitioner. Therefore, it is not possible
to ascertain from this
document whether Petitioner was in fact, convicted of a criminal offense within
the meaning of section
1128(a)(1).
That is not necessarily fatal here. As I hold above, it is apparent that Petitioner's
conviction emanated from
her admission that she had converted medications prescribed to patients at the
Brookhaven Nursing
Facility. And, although there is some ambiguity in her admission of culpability,
she identified the names
of the patients whose medications she admitted converting and whose records
she admitted falsifying.
Inasmuch as the Judgment of Conviction and Sentence does not name the individual
whose records
Petitioner falsified, it is possible that the conviction might relate to any
of the individuals named by
Petitioner. Furthermore, the Judgment of Conviction and Sentence is written
ambiguously, so as to
possibly subsume a chain of events which does not relate to a Medicare or Medicaid
item or service.
Therefore, in order to establish the nexus to a Medicare or Medicaid item or
service required under the
Greene and Dabbs decisions, I must find that the statutory test would be satisfied
with respect to items or
services provided to any of the individuals whose medications Petitioner admitted
to having converted and
whose records Petitioner admitted having falsified. The I.G. must show that
any chain of events which
possibly could have been the basis for Petitioner's conviction was related to
the delivery of an item or
service under Medicare or Medicaid.
This case is very similar to the case of Bruce Lindberg, D.C., DAB 1280 (1991)
(Lindberg). Lindberg was
a case in which the I.G. had excluded the petitioner pursuant to section 1128(a)(2)
of the Act, based on his
conclusion that the petitioner had been convicted of a criminal offense related
to patient neglect or abuse in
connection with the delivery of a health care item or service. An appellate
panel found that the evidence
offered by the I.G. to support his determination was inadequate to establish
that the individuals referred to
in documents relating to the petitioner's conviction were patients of petitioner
or that the abuse of which
petitioner was convicted occurred in connection with the delivery of a health
care item or service.
While the petitioner originally had been charged with eight counts of abuse,
he had pleaded guilty to only
four of them. It was apparent from the documents relative to the petitioner's
case and from the undisputed
material facts, that some but not all, of the individuals whom petitioner had
been charged with abusing
were his patients. The appellate panel concluded that it was not possible to
determine from the documents
pertaining to petitioner's conviction that the four individuals whom petitioner
was convicted of having
abused were petitioner's patients. Therefore, the requisite nexus for a conviction
under section 1128(a)(2)
had not been proven by the I.G. Lindberg at 7 - 8.
The appellate panel found further that the evidence did not establish that
the offenses of which the
petitioner were convicted occurred in connection with the delivery of a health
care item or service. Six of
the eight individuals whose complaints formed the basis of the criminal charges
against petitioner asserted
that the abuse which petitioner allegedly committed was committed in connection
with the delivery of a
health care service. However, the appellate panel found that the record did
not establish that the offenses
to which the petitioner pleaded necessarily consisted of the offenses which
were asserted as having been
committed in connection with the delivery of a health care service. Lindberg
at 8 - 9. The fact that such
could have been the case was not enough to establish the requisite nexus under
the Act.
The I.G. has failed to establish the requisite nexus here, even as he failed
to do so in Lindberg. First, it is
not clear from the undisputed material facts that all of the patients whose
medications could have been
converted by Petitioner on October 1, 1989, and whose records could have been
falsified by her on that
date, were Medicare beneficiaries or Medicaid recipients. It is possible that
the conviction could have
related to Petitioner's admitted conversion of medications prescribed to Gertrude
Clark and to Petitioner's
falsification of Gertrude Clark's treatment records. Yet, the I.G. has offered
no evidence to identify
whether Ms. Clark was a patient at the facility on October 1, 1989, or whether
she was a Medicare
beneficiary or Medicaid recipient.
Furthermore, the I.G. has not established that Petitioner's conversion of medications
and falsification of
treatment records related to Medicare or Medicaid items or services in each
circumstance which could have
been the basis for her conviction. In my November 8, 1991 ruling, I ruled that
it would be insufficient for
the I.G. to show merely that the patients whose medications Petitioner misappropriated
were Medicare
beneficiaries or Medicaid recipients. I ruled then, and hold now, that the patients'
status as beneficiaries or
recipients does not by itself show that there were Medicare or Medicaid items
or services from which
Petitioner's crime emanated. Simply proving that these patients were eligible
for program-related items or
services does not preclude the possibility that no Medicare or Medicaid items
or services were supplied to
them at the facility, and that there was no connection, therefore, between a
Medicare or Medicaid item or
service and Petitioner's crime.
I pointed out in my ruling that the I.G. could satisfy the Greene or Dabbs
tests, assuming he showed that all
of the patients whose medications were converted by Petitioner were Medicare
beneficiaries or Medicaid
recipients, by proving any of the following:
1. The misappropriated medication which formed the basis of Petitioner's conviction
was a Medicare or
Medicaid item or service. In that event, her falsification of treatment records
would directly relate to her
conversion of medication supplied under Medicare or Medicaid to a patient.
2. The misappropriated medication which formed the basis of Petitioner's conviction
was not a
Medicare or Medicaid item or service, but was prescribed as an element of some
other treatment which was
a Medicare or Medicaid item or service (such as to alleviate pain following
surgery).
3. The misappropriated medication which formed the basis of Petitioner's conviction
was not a
Medicare or Medicaid item or service, but was provided during the course of
an inpatient stay which was a
Medicare or Medicaid item or service.
In subsequent submissions, the I.G. offered evidence which satisfies me that
Creda Hoga was receiving a
Medicare item or service during her stay at the Brookhaven Nursing Facility.
I.G. Ex. 6. The I.G. has not
clearly established that the medications provided to Ms. Hoga which were converted
by Petitioner, were
Medicare items or services. However, I believe it reasonable to conclude that
these medications were at
least provided ancillary to Ms. Hoga's Medicare-covered stay. Therefore, I conclude
that, if Petitioner's
conviction relates to medications misappropriated from Ms. Hoga and to falsification
of her records, it
would relate to the delivery of a Medicare item or service.
As I hold above, I am satisfied that Dorothy Crowson and Peggy Bang were eligible
for Medicaid items or
services. However, the I.G. has never offered proof that these individuals'
stays at the facility or their
medications were items or services which were covered by the Texas Medicaid
program. In fact, as I.G.
Ex. 6 shows, no claims were submitted for a Medicaid item or service for either
Crowson or Bang on
October 1, 1989. Specifically, I.G. Ex. 6 states that Peggy Bang had no Medicaid
prescription claims paid
between September 1, 1989 and April of 1990. I.G. Ex. 6 also states that there
were no Medicaid claims
submitted for Crowson from September 1, 1989 through May of 1990.
Inasmuch as James Martin was not a patient at the facility on October 1, 1989,
I can conclude that he could
not possibly have been the basis for Petitioner's criminal conviction. As I
hold above, the I.G. has provided
me with no evidence which would enable me to decide whether Gertrude Clark was
receiving any
Medicare or Medicaid items or services on October 1, 1989. Thus, of the five
patients whose medication
Petitioner admitted misappropriating, the I.G. has established that only one,
Creda Hoga, was receiving
Medicare (or Medicaid) items or services on October 1, 1989. Inasmuch as it
is possible that Petitioner's
conviction may relate to any of the patients whose medication she admitted falsifying
records to obtain, the
I.G. has not established the requisite nexus between a federally funded health
care program and Petitioner's
conviction.
The appellate panel remanded the Lindberg case so that the administrative law
judge could receive
additional evidence as to the unresolved questions of material fact. I can discern
no legitimate reason why
I should provide the I.G. with yet another opportunity in this case to prove
that he had authority to exclude
Petitioner under section 1128(a)(1). I have provided the I.G. with three opportunities
to provide the
necessary evidence in this case and the I.G. has continued to fail to meet his
burden of proof.
My November 8, 1991 ruling provided the I.G. with explicit instructions as
to what I would consider to be
necessary evidence to satisfy me that a basis existed to exclude Petitioner
under section 1128(a)(1). The
I.G.'s renewed motion for summary disposition did not provide me with that which
I told him I must have.
I advised the I.G. by telephone, on January 26, 1992, that his renewed motion
was inadequate. I again
explicitly told him what would be necessary to establish authority to exclude
Petitioner under section
1128(a)(1). I directed the I.G.'s attention to the Lindberg decision during
that call. I gave the I.G. the
option of an in-person evidentiary hearing, should he desire one. I gave the
I.G. until February 14, 1992
to offer evidence establishing his authority to exclude and told him that if
he did not meet his bruden of
proof, I would enter summary disposition in Petitioner's favor. In spite of
this, the I.G.'s latest submission
is again inadequate. Under the circumstances, I would deny Petitioner due process
if I were to provide the
I.G. with still another opportunity to offer evidence. I have no reasonable
choice but to find that the I.G.
has failed to prove that he has authority to exclude Petitioner. Accordingly,
I enter summary disposition in
favor of Petitioner. 4/
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the I.G.
has not proven that Petitioner
was convicted of a criminal offense related to the delivery of an item or service
under Medicare or
Medicaid within the meaning of section 1128(a)(1) of the Act. I there-fore enter
summary disposition in
favor of Petitioner, vacating the exclusion which the I.G. imposed and directed
against Petitioner.
_________________________
Steven T. Kessel
Administrative Law Judge
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. This conference was conducted without Petitioner's participation. Several
attempts were made to
advise Petitioner of the conference. However, the telephone number which Petitioner
had provided for
contact purposes was no longer valid, and Petitioner did not respond to written
notification sent to her last
known address.
3. I refer to the I.G.'s original July 24, 1991, brief in support of motion
for summary disposition as I.G.
Br. (number/page). The I.G. attached four exhibits to his first motion, which
he designated as Exhibits 1
through 4. I refer to the I.G.'s exhibits as I.G. Ex. (number designation)/(page).
The I.G. also submitted
the sworn affidavit of William J. Hughes, Program Analyst in the I.G.'s Dallas
office. Mr. Hughes's
affidavit, unlike the other I.G. submissions, was not marked as an exhibit.
I refer to it as Hughes Aff. (page
number). Petitioner submitted her written reply to the I.G.'s motion and a typewritten
letter that was
originally sent by her to the Texas Department of Human Services to contest
her exclusion. I will refer to
Petitioner's typewritten letter as Pet. Let. (page number). After my November
8, 1991 Order, the I.G.
submitted a renewed motion for summary disposition and a supporting brief, which
I refer to as I.G. Mot.
(page number). The I.G. attached one exhibit to his renewed motion, which I
refer to as I.G. Ex. 5. I refer
to the I.G.'s second renewed motion, submitted on February 14, 1992 as I.G.
Second Ren. Mot. The I.G.
attached exhibits 6, 7 and 8 to his second renewed motion. I admit into evidence
all I.G. exhibits,
including the Hughes affidavit, and Petitioner's letter.
4. Perhaps the most troubling aspect of this case is that I believe that there
exists evidence which would
resolve the unresolved fact questions, and, possibly, establish the requisite
nexus to provide authority to
exclude Petitioner under section 1128(a)(1). For example, I have absolutely
no doubt that the I.G. could
easily establish whether or not Ms. Crowson and Ms. Bang were receiving Medicaid
items or services on
October 1, 1989. I see no reason why the I.G. could not resolve Ms. Clark's
status. But the I.G. has the
burden of proof in this case. If he fails to meet that burden, I must act accordingly.