Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Michael J. Kirkland, D.C., Petitioner,
- v. -
The Inspector General.
DATE: May 7, 1993
Docket No. C-93-009
Decision No. CR263
DECISION
By letter dated August 26, 1992, Michael J. Kirkland, D.C., 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
him for a period of five years from participation in the Medicare program and
from participation in the
State health care programs described in section 1128(h) of the Social Security
Act (Act). I use the term
"Medicaid" in this Decision when referring to the 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 the State of
Oregon's Medicaid program.
Petitioner filed a timely request for review of the I.G.'s action, and the
I.G. moved for summary
disposition.
Because I have determined that there are no material and relevant factual issues
in dispute (i.e., the only
matter to be decided is the legal significance of the undisputed facts), I have
granted the I.G.'s motion and
decide the case on the basis of written submissions in lieu of an in-person
hearing.
I affirm the I.G.'s determination to exclude Petitioner from participation
in the Medicare and Medicaid
programs for a period of five years.
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
The parties signed and jointly submitted a document captioned STATEMENT OF
STIPULATED FACTS.
Because they are material and undisputed, I adopt these facts as my findings
1 through 7 (with certain modifications, which are noted in brackets).
1. Michael J. Kirkland is a Chiropractic Physician licensed to practice in the State of Oregon.
2. Dr. Kirkland's practice is located in the city of Dallas, Polk County, Oregon,
but he serves elderly
clients from the surrounding counties as well.
3. On April 26, 1989, the District Attorney for Polk County filed and Information
charging Dr. Kirkland
with the offense of submitting a wrongful claim in violation of ORS [Oregon
Revised Statutes] 411.675
and 411.990.
4. On April 26, 1989, [Dr.] Kirkland pleaded guilty to Submitting a Wrongful
Claim [but only in violation
of ORS 411.675 - see I.G. Ex. 3 at p. 6] in the Circuit Court of the State of
Oregon for Polk County.
5. On August 26, 1992, more than three years later, HHS notified [Dr.] Kirkland
that, because of this
conviction three years earlier, he was being excluded from participation in
the Medicare, Medicaid,
Maternal and Child Health Services Block Grant and Block Grants to States for
Social services programs
for a period of five years, beginning 20 days from the date of the notice.
6. On October 20, 1992, [Dr.] Kirkland requested a hearing [to contest his exclusion.]
7. On December 15, 1992, [Dr.] Kirkland's conviction was vacated by the Oregon
Circuit Court for Polk
County.
8. The Oregon court which accepted Petitioner's guilty plea did so after concluding
that the plea was
informed and voluntary and that Petitioner had entered such plea because he
was, in fact, guilty of
submitting a wrongful claim. I.G. Ex. 2, 3.
9. The Oregon law which Petitioner was convicted of violating forbids a person
from making a false or
otherwise wrongful claim for payment from the State for having purportedly provided
some benefit to a
public assistance recipient. ORS 411.675.
10. Petitioner's specific offense was that he billed Medicaid for having allegedly
furnished services to a
particular Medicaid recipient, although the services had actually been provided
to a relative of the recipient
who was not covered by the program. I.G. Ex. 3.
11. Petitioner was placed on probation. He made restitution of the monies he
had wrongfully received,
and was required also to perform community service and to pay a fine. I.G. Ex.
3.
12. The Secretary of Health and Human Services delegated to the I.G. the authority
to determine and
impose exclusions pursuant to section 1128 of the Act. 48 Fed. Reg. 21662 (1983).
13. Petitioner was convicted of a criminal offense, within the meaning of section
1128(i)(3) the Act.
14. Filing false Medicaid claims is program-elated misconduct.
15. Petitioner was convicted of a criminal offense related to the delivery
of items or services under
Medicare or Medicaid, as required by the mandatory exclusion provisions of the
Act.
16. Congress intended mandatory exclusion to apply to all situations in which
a party pleads guilty to, or is
otherwise convicted of, a program-related offense, and that a conviction remains
a conviction, with regard
to satisfying the requirements of section 1128(a), even if it is subsequently
expunged or removed from the
defendant's record.
17. An administrative law judge has no authority to alter the effective date
of an exclusion where the I.G.
acted within the discretion afforded by statute and regulation in setting the
effective date.
PETITIONER'S ARGUMENT
Petitioner contends that inasmuch as his conviction was vacated pursuant to
valid Oregon law, it should not
serve as a basis for excluding him from the health care programs. In this regard,
Petitioner notes also that
42 C.F.R. 1001.136(a), which was in effect on April 26, 1989, the date Petitioner
pled guilty and was
convicted, provided that a person who had been excluded from participation in
the Medicare and Medicaid
programs would be reinstated if his conviction was reversed or vacated. Petitioner
maintains, further, that
the offense with which he was charged in the Information -- submitting a wrongful
claim -- has not been
shown to relate to the delivery of an item or service under Medicare or Medicaid,
as required by section
1128(a)(1). Lastly, Petitioner states that he was harmed by the I.G.'s "three
year delay in notifying him of
the exclusion," since he might have sought "post-conviction relief"
or withdrawn his plea and gone to trial.
Had the I.G. acted sooner, Petitioner suggests, he could have benefitted also
from section 1001.136(a),
mentioned above.
DISCUSSION
The first statutory requirement for mandatory exclusion pursuant to section
1128(a)(1) of the Act is that the
individual in question have been convicted of a criminal offense under federal
or State law. In the case at
hand, Petitioner pled guilty and the Oregon court, after careful inquiry, accepted
the plea of guilty. Section
1128(i)(3) of the Act expressly states that when an individual enters a plea
of guilty, and the court accepts
the plea, such person is considered to have been convicted of a criminal offense.
Next, it is required by section 1128(a)(1) that Petitioner's criminal offense
be related to the delivery of an
item or service under Medicaid or Medicare. It is well-established in decisions
of the Departmental
Appeals Board (DAB) that filing false Medicare or Medicaid claims constitutes
program-related
misconduct, sufficient to mandate exclusion. Jack W. Greene, DAB CR19, aff'd
DAB 1078 (1989), aff'd
Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990). I find that Petitioner's
actions in the present
case - intentionally billing Medicaid for services that were not provided to
the Medicaid patient Petitioner
named - similarly constitute criminal fraud related to the delivery of Medicaid
services.
Petitioner contends that he admittedly pled guilty to submitting a wrongful
claim, but that the I.G. did not
prove that such false claim related to Medicare or Medicaid. I disagree. The
record indicates that the
prosecutor detailed Petitioner's specific offenses -- billing the State on several
occasions or health services
purportedly provided to a Medicaid recipient whereas such services were actually
provided to a relative of
the recipient, who was not covered by Medicaid -- in open court in the presence
of Petitioner and his
attorney. Neither of these persons objected to the prosecutor's account of the
facts and Petitioner
proceeded to formalize his guilty plea. In light of the evidence presented and
the controlling law, I
conclude that Petitioner was convicted of a criminal offense related to the
delivery of items or services
under Medicare or Medicaid. Thus, the I.G. had the requisite basis for a mandatory
exclusion.
Petitioner's reliance on former regulation 42 C.F.R. 1001.136(a) is misplaced.
First, such regulation
applied to reinstatement decisions, which I cannot review, rather than to original
exclusion actions.
Second, Petitioner's theory does not comport with the intent of Congress. Petitioner
pled guilty to criminal
charges on April 26, 1989. Consequently, the 1987 amendments to section 1128
of the Act (which
mandate the five-year minimum exclusion for program-related crimes) are applicable
to his case. Betsy
Chua, M.D., DAB CR76, aff'd, DAB 1204 (1990). It has been held by administrative
law judges of this
office, and affirmed by appellate panels of the DAB, that Congress intended
mandatory exclusion to apply
to all situations in which a person is convicted of a program-related offense
and that a conviction remains a
conviction, with regard to section 1128(a), even if it is subsequently expunged
from a person's record. See,
e.g., Carlos E. Zamora, M.D., DAB CR22 (1989), aff'd, DAB 1104 (1989); James
F. Allen, M.D., DAB
CR71 (1990); also see 1986 U.S.C.C.A.N. 3665.
In the case at hand, the fact that the Oregon court vacated Petitioner's conviction
several years after he had
pled guilty does not undo the fact of conviction for purposes of section 1128(a).
The affidavit Petitioner
executed at the time he entered his plea shows that he had expectations of having
his conviction expunged
in three years. I.G. Ex. 6. There was also no evidence, in the court's order
or otherwise, that the restitution
or fine paid by Petitioner were returned, as would occur if his conviction were
set aside on the merits,
based upon legal error, factual mistake, etc. Petitioner's attorney asserts
that there is no Oregon
requirement that fines be returned when a conviction is vacated and that Petitioner
was not requesting a
return of either. Letter of May 5, 1993. This does not mean that Petitioner
could not have attempted to
have these monies returned. Had his innocence truly been vindicated, he would
likely have done so.
Additionally, counsel was unwilling or unable to explain why the conviction
should be vacated within the
meaning of the Act. He stated that he merely requested the prosecutor to move
to vacate the conviction
and that the prosecutor and the judge complied, both allegedly without demanding
any explanation. Tape
of telephone conference of April 16, 1993).
I find it reasonable to conclude that the vacating or expungement of the conviction
was the result of an
understanding among the parties, and was akin to the "first offender"
process mentioned in Section
1128(i)(4) of the Act, or similar programs designed to leave a convicted defendant
without the handicap of
a criminal record. It has been often held that a conviction undone in such manner
has no effect upon the
application of mandatory exclusion pursuant to Section 1128(a). Thus, I conclude,
as stated in one of these
earlier decisions, "post-pleading erasures of convictions [are] included
within the statutory definition of
conviction." James F. Allen, M.D., DAB CR71 (1990).
As to Petitioner's contention that the I.G. did not act within a reasonable
time to effect his exclusion, an
administrative law judge has no authority to alter the effective date of exclusion
designated by the I.G.
where the I.G. acted within the discretion afforded by statute and regulation
in setting the effective date.
Shanti Jain. M.D., DAB 1398 (1993). Nothing in the record herein shows the I.G.'s
actions to have been
ultra vires or unlawfully motivated. It should also be emphasized that the exclusion
of providers from the
Medicare and Medicaid programs is expressly required by statute where there
has been a relevant criminal
conviction, and neither the I.G. nor this judge is authorized to reduce the
five-year minimum mandatory
period of exclusion. Jack W. Greene, DAB CR19 at 12 - 14 (1989).
CONCLUSION
Section 1128(a)(1) of the Act requires that Petitioner be excluded from the
Medicare and Medicaid
programs for a period of at least five years because of his conviction of a
program-related criminal offense.
The I.G.'s five-year exclusion is, therefore, sustained.
______________________________
Joseph K. Riotto
Administrative Law Judge