Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Bernard Friedman, R.Ph., Petitioner,
- v. -
The Inspector General.
DATE: September 10, 1992
Docket No. C-92-099
Decision No. CR230
DECISION
By letter dated January 15, 1992, Bernard Friedman, R.Ph., the Petitioner herein,
was notified by the
Inspector General (I.G.), U.S. Department of Health & Human Services, that
it had been decided to
exclude him for a period of five years from participation in the Medicare and
Medicaid programs
("Medicaid" here refers to the 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 Medicaid.
Petitioner filed a timely request for review of the I.G.'s action.
The I.G. moved for summary disposition of the case.
Petitioner did not respond to the I.G.'s evidence and argument and did not participate
further in the case
(after filing the initial request). In the absence of disputed material facts,
and in light of the evidence of
record, I enter summary judgment in favor of the I.G.
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. It is undisputed that, during the period relevant to this case, Petitioner
was a registered pharmacist in the
State of Ohio.
2. On August 7, 1990, Petitioner entered a plea of guilty in the Court of Common
Pleas, Franklin County,
Ohio, to the offense of Medicaid fraud, a felony.
I.G. Ex. 2.
3. Petitioner was sentenced to incarceration for a period of one year. He was
also required to pay
investigatory expenses and to make restitution to the State of Ohio in the total
amount of $15,000. I.G. Ex.
3 and 4.
4. The Secretary of Health and Human Services 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. A criminal conviction for Medicaid fraud is related to the delivery of an
item or service under Medicare
or Medicaid and justifies application of the mandatory exclusion provisions
of section 1128(a)(1).
ARGUMENT
In his request for a hearing, Petitioner states that, although he is now retired,
he wishes to be able to work
as a pharmacist on a part-time basis to supplement the benefits he receives
from Social Security. However,
inasmuch as there are no pharmacies in the Columbus, Ohio, area which do not
participate in the
Medicare/Medicaid programs, exclusion would unreasonably preclude him from earning
a living.
Petitioner, therefore, maintains that the proposed penalty is too severe, particularly
since he has already
paid for his crime.
DISCUSSION
The first statutory requirement for mandatory exclusion pursuant to section
1128(a) 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 in a State court and that a conviction
was entered, thus satisfying
section 1128(i)'s definition of "convicted."
I also find that the requirement of section 1128(a)(1) that the criminal offense
leading 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) precedent that Medicaid
fraud constitutes a
program-related offense which mandates exclusion. Jack W. Greene, DAB 1078 (1990),
aff'd Greene v.
Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990).
As noted above, Petitioner contends that a five-year exclusion is too severe
in his case, particularly since he
has already paid for his crime. Unfortunately for this argument, it was the
intent of Congress to require,
through civil enforcement actions, the exclusion of all persons who had been
convicted of certain crimes,
in order to protect the Medicare and Medicaid programs. S. Rep. No. 109, 100th
Cong., 1st Sess.,
reprinted in 1987 U.S.C.C.A.N. 682. The imposition of such civil remedies upon
persons previously
convicted of criminal offenses arising out of the same facts does not constitute
unlawful double jeopardy.
U.S. v. Halper,
490 U.S. 435 (1989). Lastly, an administrative law judge has no authority to
modify the five-year
minimum exclusionary period, once mandatory exclusion has been shown to be applicable.
Greene, id..
CONCLUSION
Petitioner's conviction requires his exclusion for a period of at least five
years, pursuant to section
1128(a)(1).
____________________________
Joseph K. Riotto
Administrative Law Judge
1. The I.G. filed a brief, attached to which were exhibits. I admitted the
exhibits into evidence and refer
to them as "I.G. Ex. 1," et seq.