DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of: Shelia Mauney, Petitioner,
- v. -
The Inspector General.
DATE: July 3, 1989
Docket No. C-79
DECISION OF ADMINISTRATIVE LAW JUDGE
ON MOTION FOR SUMMARY DISPOSITION
The Inspector General (the I.G.) notified Petitioner on September 30, 1988,
that she was being excluded
from participation in Medicare and any State health care programs for a period
of five years. The I.G. told
Petitioner that her exclusions were due to her conviction of a criminal offense
related to the delivery of an
item or service under the Medicare program. Petitioner was advised that the
law required five year
minimum exclusions from participation in Medicare and State health care programs
for individuals
convicted of program-related offenses. The I.G. told Petitioner that, because
of the circumstances of her
case, she was being excluded for the minimum period required by law.
Petitioner timely requested a hearing, and the case was assigned to me for
a hearing and decision. I
conducted a prehearing conference on March 11, 1989, at which the I.G. stated
that he intended to move
for summary disposition. I issued a prehearing Order on April 19, 1989, which
established a schedule for
filing the motion and responding to it, and which also provided for oral argument
on the motion. The I.G.
timely filed a motion for summary disposition. By letter dated May 30, 1989,
Petitioner's counsel advised
me that Petitioner made no response to the motion.
I have considered the arguments contained in the I.G.'s motion for summary
disposition, the undisputed
material facts, and applicable law and regulations. I conclude that the exclusions
imposed and directed by
the I.G. are mandatory. Therefore, I am deciding this case in favor of the I.G.
ISSUES
The issue in this case is whether Petitioner was convicted of a criminal offense
related to the delivery of an
item or service under the Medicare program, so as to require mandatory exclusions
from participation in
the Medicare and State health care programs under section 1128(a)(1) of the
Social Security Act.
APPLICABLE LAWS AND REGULATIONS
1. Section 1128 of the Social Security Act: Section 1128(a)(1) of the Social
Security Act, 42
U.S.C. 1320a-7(a)(1), requires the Secretary to exclude from participation in
the Medicare program, and to
direct the exclusion from participation in any State health care programs, of
any individual or entity
"convicted of a criminal offense related to the delivery of an item or
service" under Medicare or any State
health care program. "Conviction" is defined at 42 U.S.C. 1320a-7(i)
to include those circumstances when
a party pleads guilty to a criminal charge. The law provides at 42 U.S.C. 1320a-7(c)(3)(B),
that for those
excluded under section 1320a-7(a), the minimum exclusion period shall be at
least five years.
2. Regulations Governing Suspension, Exclusion, or Termination of Practitioners,
Providers,
Suppliers of Services, and Other Individuals: The Secretary delegated to the
I.G. the authority to
determine, impose, and direct exclusions pursuant to section 1128 of the Social
Security Act. 48 Fed. Reg.
21662, May 13, 1983. Regulations governing suspension and exclusion of individuals
pursuant to section
1128 and this delegation are contained in 42 C.F.R. Part 1001. Section 1001.123(a)
provides that when the
I.G. has conclusive information that an individual has been convicted of a program-related
crime, he shall
give that individual written notice that he is being suspended (excluded) from
participation. Section
1001.125(b) establishes criteria for the I.G. to use in determining the appropriate
length of exclusions in
those cases where the I.G. may exercise discretion.
Section 1001.128 provides that an individual excluded based on conviction of
a program-related offense
may request a hearing before an administrative law judge on the issues of whether:
(1) he or she was in
fact, convicted; (2) the conviction was related to his or her participation
in the Medicare, Medicaid, or
social services program; and (3) whether the length of the exclusion is reasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a respiratory therapist. I.G. Ex. 2/18.
2. On May 25, 1988, Petitioner was convicted under 18 U.S.C. 1001 of the criminal
offense of
filing false statements. I.G. Ex. 1.
3. At the hearing in which Petitioner entered her guilty plea, Petitioner
admitted making a false
representation concerning an arterial blood gas study. I.G. Ex. 2/19.
4. The purpose of the false representation was to convince the Health Care
Financing
Administration to make reimbursements under the Medicare program. I.G. Ex. 2/20.
5. There are no disputed issues of material fact in this case; therefore,
summary disposition is
appropriate. See F.R.C.P 56.
6. The offense which Petitioner pleaded guilty to is a criminal offense related
to the delivery of an
item or service under the Medicare program. 42 U.S.C. 1320a-7(a)(1).
7. Petitioner's guilty plea is a conviction as defined by 42 U.S.C. 1320a-7(i).
8. The minimum mandatory exclusion period is five years for a person who has
been excluded
based on conviction of a criminal offense related to the delivery of an item
or service under Medicare.
9. The I.G. excluded Petitioner from participation in the Medicare program,
and directed that
Petitioner be excluded from participation in State health care programs, for
five years, based on Petitioner's
conviction of a criminal offense related to the delivery of an item or service
under the Medicare program.
The exclusions are mandatory and for the minimum period of time required by
law. 42 U.S.C. 1320a-
7(a)(1) and (c)(3)(B).
ANALYSIS
The I.G. bases his motion for summary disposition on Petitioner's conviction
of a federal criminal offense
of making false statements, and the provisions of 42 U.S.C. 1320a-7(a)(1), which
mandate five year
exclusions from participation in the Medicare and State health care programs
for persons convicted of
criminal offenses related to the delivery of an item or service under the Medicare
or Medicaid programs.
The I.G. asserts that Petitioner was convicted of an offense "related to"
the delivery of an item or service
under the Medicare program; therefore, Petitioner's exclusions were mandatory.
Petitioner does not
challenge the I.G.'s representation of the facts.
Summary disposition is appropriate in an exclusion case where there are no
disputed issues of material fact
and where the undisputed facts demonstrate that one party is entitled to judgment
as a matter of law.
Howard B. Reife, D.P.M. v. The Inspector General, Docket No. C-64, decided April
28, 1989; Michael I.
Sabbagh, M.D. v. The Inspector General, Docket No. C-59, decided February 22,
1989; Jack W. Greene v.
The Inspector General, Docket No. C-56, decided January 31, 1989; See F.R.C.P.
56.
The issue which I must resolve in deciding the I.G.'s motion for summary disposition
is whether Petitioner
was convicted of an offense which falls within the ambit of 42 U.S.C. 1320a-7(a)(1).
I must make certain
factual conclusions in order to decide this issue. First, I must decide whether
Petitioner was "convicted" of
an offense within the meaning of 42 U.S.C. 1320a-7(i). Petitioner does not dispute
her guilty plea is a
"conviction" within the meaning of the law. Second, I must decide
the nature of the offense to which
Petitioner pleaded guilty. Again, there is no dispute as to this issue. The
I.G. has offered as an exhibit the
record of Petitioner's conviction, and Petitioner has not challenged the authenticity
or truthfulness of the
document.
Therefore, the only question remaining for me to decide is the legal question
of how to characterize
Petitioner's conviction under the exclusion law. As there are no disputed issues
of material fact, summary
disposition is appropriate in this case.
In the hearing conducted on Petitioner's plea to the criminal charge against
her, Petitioner admitted that she
falsified the result of an arterial blood gas study. The purpose of this falsehood
was to unlawfully obtain
Medicare reimbursement. I conclude from this that Petitioner's offense was related
to the delivery of an
item or service under the Medicare program. But for Petitioner's falsification,
it would have been
impossible to claim or to obtain Medicare reimbursement for a purported service.
My conclusion does not depend on determining whether the falsification was
an element of a successful
attempt to obtain Medicare reimbursement. The exclusion law does not distinguish
between convictions
related to attempted unlawful reimbursement claims and convictions related to
successful unlawful
reimbusement claims. The phrase "related to the delivery of an item or
service," contained in 42 U.S.C.
1320a-7(a)(1), pertains to any offense related to the physical delivery of services
or to the process by which
payment is made for such services.
I therefore conclude that this case involves a conviction of a criminal offense
related to the delivery of an
item or service under the Medicare program and is governed by the mandatory
exclusion provisions of 42
U.S.C. 1320a-7(a)(1).
CONCLUSION
Based on the undisputed material facts, the law, and regulations, I conclude
that the I.G.'s determination to
exclude Petitioner from participation in the Medicare program, and to direct
that Petitioner be excluded
from participation in State health care programs, for five years, was mandated
by law. Therefore, I am
entering a decision in favor of the I.G. in this case.
________________________
Steven T. Kessel
Administrative Law Judge
RETURN RECEIPT REQUESTED
John Grisham, Jr., Esq.
44 Stateline Road West
Post Office Box 385
Southaven, Mississippi 38671
Fred Rush, Esq.
DHHS - Region IV
Room 521, 101 Marietta Tower
Atlanta, Georgia 030323
cc: Office of Inspector General
Office of Investigations
Room 3-C-1, Meadows East Building
Baltimore, Maryland 21207
Regional Inspector General
Office of Investigations
Attn.: James Cottos
P.O. Box 2201
Atlanta, Georgia 30301