Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Shanti Jain, M.D., Petitioner,
- v. -
The Inspector General.
DATE: October 20, 1992
Docket No. C-92-092
Decision No. CR237
DECISION
By letter dated February 13, 1992, Shanti Jain, M.D., 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 program and
those State health care
programs mentioned in section 1128(h) of the Social Security Act (Act). (I will
use "Medicaid" hereafter
in this Decision to represent those State programs.) 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, and the
I.G. moved for summary
disposition.
Because I conclude that there are no material and relevant factual issues in
dispute, summary disposition is
appropriate. Therefore, I have decided the case on the basis of written submissions
in lieu of an in-person
hearing. For the reasons stated below, I conclude that the I.G. was required
to exclude Petitioner for at
least five years pursuant to sections 1128(a)(1) and 1128(c)(3)(B). Therefore,
I uphold the exclusion.
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.
ARGUMENT
Petitioner makes a number of arguments against judgment in favor of the I.G.
She contends that there was
no loss to the program, since she had, overall, rendered at least as much service
to patients as she had billed
for. She also notes that, under New York law, intent to defraud is not an element
of the crime to which she
pled.
Petitioner argues also that the I.G.'s delay in initiating an exclusion harmed
her by effectively causing her --
as a result of the consecutive action of State and federal penalties -- to be
excluded for almost ten years.
Lastly, she asserts that the I.G. improperly sent her a notice of intent to
exclude dated July 29, 1991, which
invited her to state any mitigating factors she believed applicable to her case.
This was erroneous,
Petitioner asserts, since no mitigating evidence could have saved her from a
five-year exclusion.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/
1. It is undisputed that, during the period relevant herein, Petitioner was
a duly licensed physician in New
York. P. Br. at 2.
2. On February 7, 1991, in the New York Supreme Court, Bronx County, Petitioner
pled guilty to and was
convicted of, offering a false instrument for filing (second degree). I.G. Exhibit
(Ex.) 3.
3. The State alleged in its indictment that Petitioner had submitted claims
to Medicaid for medical care and
treatment of Medicaid patients whereas such care and treatment had not been
provided. I.G. Ex. 1.
4. Petitioner was sentenced to three years' probation plus a $250 fine. I.G. Ex. 3.
5. Petitioner was suspended from the State Medicaid program pending further
review. I.G. Ex. 2; P. Br. at
2.
6. The Secretary of the Department 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).
7. A criminal conviction based upon submitting false claims to Medicaid is
related to the delivery of an
item or service under Medicaid and justifies application of the mandatory exclusion
provisions of section
1128(a)(1), even if there was no proof of fraudulent intent on the part of Petitioner.
N.Y. Penal Law
175.30 (McKinney 1988); I.G. Br. at 3, note 2.
8. An administrative law judge has no authority to alter the effective date
of exclusion designated by the
I.G. as a remedy for the latter's tardiness or misfeasance.
9. Petitioner is not entitled to relief on the basis that in error the I.G.
sent her a notice of intent to exclude
which invited her to state any mitigating factors she believed applicable to
her case.
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 case at
hand, Petitioner pled guilty and a judgment of conviction was entered against
her by a State court, which
manifestly satisfies this requirement. See section 1128(i).
Next, it is required by section 1128(a)(1) that the crime at issue be related
to the delivery of an item or
service under Medicare or Medicaid. It is well established in decisions of the
Departmental Appeals Board
(DAB) that filing false Medicare or Medicaid claims constitutes clear program-related
misconduct. Jack
W. Greene, DAB CR19, aff'd DAB 1078 (1989), aff'd Greene v. Sullivan, 731 F.
Supp. 835, 838 (E.D.
Tenn. 1990). In the present case, although her conviction does not prove intentional
fraud by Petitioner, it
is an element of her offense that her false representations to Medicaid were
made knowingly and
intentionally. Such knowing misrepresentations have no less effect on the program
than misrepresentation
in intentional fraud cases.
Furthermore, it is the fact of conviction of a relevant offense that triggers
exclusion; proof of criminal
intent is not required to bring a conviction within the ambit of section 1128(a)(1).
DeWayne Franzen,
DAB 1165 (1990).
As to Petitioner's contention that the I.G. did not act within a reasonable
time to effect her exclusion, the
administrative law judge has no authority to alter the effective date of exclusion
as a remedy for the I.G.'s
tardiness or misfeasance. Samuel W. Chang, M.D., DAB 1198 (1990); Christino
Enriquez, DAB CR119 at
7 - 9 (1991). It should also be noted that the exclusion of providers from the
Medicare and Medicaid
programs is expressly required by statute where there has been a relevant criminal
conviction. Neither the
I.G. nor this judge is authorized to reduce the five-year minimum mandatory
period of exclusion. Greene,
DAB CR19 at 12 - 14.
Lastly, Petitioner is not entitled to relief on the ground that in error the
I.G. sent her a notice of intent to
exclude which invited her to state any mitigating factors she believed applicable
to her case. It might not
have been done in error, as the I.G. might have contemplated imposing a greater
than five year exclusion,
in which case mitigating factors would certainly have been relevant. And, even
if such factors were not
relevant, Petitioner was not significantly harmed by the I.G.'s inquiry.
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 written argument and documentary exhibits.
I admitted all of the
exhibits into evidence. I refer to the parties' briefs as I.G. Br. (page) and
P. Br. (page).