Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Joanne Jeter,
Petitioner,
- v. -
The Inspector General.
DATE: June 18, 1992
Docket No. C-92-052
DECISION
By letter dated December 3, 1991, Joanne Jeter, the Petitioner herein, was
notified by the Inspector
General (I.G.), U.S. Department of Health & Human Services (HHS), that it
had been decided to exclude
her for a period of five years from participation in the Medicare and Medicaid
programs ("Medicaid" here
represents those State health care programs mentioned in section 1128(h) of
the Social Security Act (the
Act)). The I.G. explained that the five-year exclusion was mandatory under sections
1128(a)(1) and
1128(c)(3)(B) of the Act because Petitioner had been convicted of a criminal
offense related to the delivery
of an item or service under Medicare.
Petitioner filed a timely request for review of the I.G.'s action and the I.G.
moved for summary disposition.
Petitioner opposed the motion because she wished to appear in person to explain
her actions and to show
that she had not intentionally defrauded the Medicare program. Inasmuch as such
testimony would have
been irrelevant in light of her criminal conviction, and because there are no
disputed material issues of fact,
I have granted the I.G.'s motion and have decided the case on the basis of written
submissions in lieu of an
in-person hearing.
APPLICABLE LAW
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act make it mandatory for any
individual who has been
convicted of a criminal offense related to the delivery of an item or service
under Medicare or Medicaid to
be excluded from participation in such programs, for a period of at least five
years.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/
1. During the period relevant to this decision, Petitioner was office manager
for Calvin U. Price, D.O., and
was responsible for Medicare billing for Dr. Price. I.G. Ex. 1/1-2.
2. Petitioner pled guilty in the United States District Court for the Eastern
District of Michigan to
embezzle-ment of public money (18 U.S.C. 641) in that she knowingly and intentionally
defrauded the
government by billing Medicare for laboratory services that were not performed
in Dr. Price's office and
which were not medically necessary. I.G. Ex. 2,3.
3. Petitioner was sentenced to supervised probation for two years and was fined $1000. I.G. Ex. 4.
4. The Secretary of HHS has delegated to the I.G. the authority to determine
and impose exclusions
pursuant to section 1128 of the Act. 48 Fed. Reg. 21662 (May 13, 1983).
5. On December 3, 1991, Petitioner was notified by the I.G. that it had been
decided to exclude her for a
period of five years from participation in the Medicare and Medicaid programs
because of her conviction
of a criminal offense related to the delivery of an item or service under Medicare.
6. A criminal conviction for billing Medicare for services that were not performed
as claimed, and which
were not medically necessary, constitutes false billing and fraud related to
the delivery of an item or service
under Medicare or Medicare, and triggers exclusion under section 1128(a)(1).
ARGUMENT
Petitioner's position is that she did not intentionally do anything wrong.
Specifically, she had no reason to
believe that laboratory tests paid for by Medicare were not, in fact, performed
by her office as claimed, and
that she also had no way of knowing that Medicare was being billed for services
that were not medically
necessary; all she did was follow the orders of Dr. Price.
DISCUSSION
The first statutory requirement for mandatory exclusion pursuant to section
1128(a)(1) of the Act is that the
individual or entity in question be convicted of a criminal offense under federal
or State law. In the present
case, it is undisputed that Petitioner pled guilty to a crime and was sentenced
by a court of competent
jurisdiction. This satisfies the definition of "convicted" within
the meaning of section 1128(i) of the Act.
I find also that the requirement of section 1128(a)(1) that the criminal offense
giving rise to the conviction
be related to the delivery of an item or service under Medicare or Medicaid
has been satisfied.
Specifically, it is well-established in Departmental Appeals Board (DAB) appellate
precedent that
submitting false bills to Medicare or Medicaid constitutes a program-related
offense mandating exclusion.
Jack W. Greene, DAB 1078 (1989). This principle encompasses situations in which
the provider falsely
billed Medicare for services performed by another provider, as in the present
case. See David D. DeFries,
D.C., DAB 1317 (1992).
In light of this precedent and history, it is evident that the misconduct giving
rise to Petitioner's criminal
conviction, i.e., billing Medicare for services not performed in her office
and/or which were not medically
necessary, constitutes false billing and fraud related to the delivery of an
item or service under Medicare or
Medicaid, and triggers exclusion under section 1128(a)(1).
As noted above, Petitioner's position is that she did not intentionally do
anything wrong. The law,
however, precludes her from using the present appeal to re-litigate her criminal
conviction. In other words,
having pled guilty to knowing and intentional embezzlement, she cannot now claim
that she acted
inadvertently or out of ignorance. Richard G. Philips, D.P.M. DAB CR133 (1991);
Mark E. Silver,
D.P.M., DAB CR139 (1991). And, in any event, it is the fact of conviction of
a relevant offense that
triggers exclusion; independent proof of criminal intent or guilt is not required
to bring a conviction within
the ambit of section 1128(a)(1). Dewayne Franzen, DAB 1165 (1990).
CONCLUSION
Petitioner's conviction requires her exclusion for a period of at least five
years, pursuant to section
1128(a)(1).
____________________________
Joseph K. Riotto
Administrative Law Judge
1. Petitioner and the I.G. submitted documentary exhibits and briefs. I admitted
all of the exhibits into
evidence and refer to them herein as "P. Ex. (number)" or "I.G.
Ex. (number)."