DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of:
H. Gene Blankenship,
Petitioner,
- v. -
The Inspector General.
Date: September 8, 1989
Docket No. C-67
DECISION AND ORDER
Petitioner requested a hearing to contest the determination of the Inspector
General (I.G.) excluding him
from participating in the Medicare and Medicaid programs for five years. Both
parties filed motions for
summary disposition of this case. I granted the I.G.'s motion on one issue and
conducted an evidentiary
hearing on the remaining issues. Based on the entire record before me, I conclude
that the exclusion
imposed and directed by the I.G. is mandatory and that the I.G. was required
to exclude Petitioner for five
years.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute.
This case is governed by section 1128 of the Social Security Act (Act), codified
at 42 U.S.C. 1320a-7
(West U.S.C.A., 1989 Supp.). Section 1128(a) (1) of the Act provides for the
exclusion from Medicare
and Medicaid of those individuals or entities "convicted of a criminal
offense related to the delivery of an
item or service" under the Medicare or Medicaid programs. Section 1128(c)(3)(B)
provides for a five year
minimum period of exclusion for those excluded under section 1128 (a)(1). While
section 1128(a) of the
Act provides for a minimum five-year mandatory exclusion for (1) convictions
of program-related crimes
and (2) convictions relating to patient abuse, section 1128(b) of the Act provides
for the permissive
exclusion of "individuals and entities" for twelve types of other
convictions, infractions, or undesirable
behavior, such as convictions relating to fraud, license revocation, or failure
to supply payment
information.
II. The Federal Regulations.
The governing federal regulations (Regulations) are codified in 42 C.F.R.,
Parts 498, 1001, and 1002
(1988). Part 498 governs the procedural aspects of this exclusion case; Parts
1001 and 1002 govern the
substantive aspects.
Section 1001.123 requires the I.G. to issue an exclusion notice to an individual
whenever the I.G. has
"conclusive information" that such individual has been "convicted
of a criminal offense related to the
delivery of" a Medicare or Medicaid item or service; such exclusion must
begin "15 days from the date on
the notice."
III. The State Statutes.
The Tennessee Code Annotated (TCA) states at section 47-25-403 that it is unlawful
for any person to
knowingly misrepresent the manufacture or origin or commercial sponsorship of
any drug sold or offered
for sale. This criminal offense, entitled "Trade Practices" and "Prohibited
Acts", is a misdemeanor
punishable by fines of not less than $100 nor more than $500, and by confinement
for not less than 30
days, nor more than 11 months, 29 days. T.C.A., section 47-25-405.
Section 40-21-109, T.C.A., states that if any person who had not previously
been convicted of a felony or
misdemeanor is found guilty of, or pleads guilty to, a misdemeanor which is
punishable by imprisonment,
the court may, without entering a judgment of guilt, place him on probation
and, upon satisfactory
completion of the probation, dismiss the proceedings against him. Thereafter,
the official record may be
expunged. However, section 40-21-109, T.C.A., provides that, even if the official
record is expunged, (1)
nonpublic records are retained by the court, (2) these "constitute the
official record of conviction," and (3)
they are admissible in court proceedings where the person has assumed the role
of plaintiff in a civil action
based on the same transaction.
BACKGROUND
On October 11, 1988, the I.G. issued a notice (Notice) to Petitioner stating
that, pursuant to federal law,
Petitioner was being excluded from both the Medicare and Medicaid programs for
a period of five years,
commencing 20 days from the date of the Notice. The I.G. stated that the basis
for these exclusions was H.
Gene Blankenship's criminal conviction of an offense covered by the mandatory
exclusion provisions of
section 1128(a)(1) of the Act.
On November 3, 1988, Petitioner timely filed a request for a hearing (Request)
before a federal
Administrative Law Judge (ALJ), and this case was docketed. I conducted a telephone
prehearing
conference with counsel for the parties on January 5, 1989. On January 13, 1989,
I issued a Prehearing
Order and Notice of Hearing, noting that the parties had agreed that there were
no material facts in dispute.
Thereafter, (1) the parties submitted briefs; and (2) the Petitioner presented
oral argument in person on
March 3, 1989, at my office in Washington, D.C., and the I.G. participated by
telephone. On April 20,
1989, I granted the I.G.'s motion for summary disposition on the issue of whether
Petitioner was
"convicted" of a criminal offense within the meaning of sections 1128(a)(1)
and (i) of the Act and I
scheduled an evidentiary hearing on the remaining issues in the case. I conducted
an evidentiary hearing in
Washington, D.C. on May 24, 1989. Thereafter, the parties submitted post-hearing
briefs and post-hearing
reply briefs.
EVIDENCE
The material facts in this case are evidenced by: (1) the parties' Stipulation
of Authenticity (Stipulations of
Fact) with eight exhibits attached thereto (and referred to in this Decision
as J. Ex.), consisting of the
underlying State court documents pertaining to H. Gene Blankenship's plea of
guilty; and (2) testimony and
exhibits received at the May 26, 1989 evidentiary hearing. The Petitioner acknowledges
that H. Gene
Blankenship waived his right to a trial by jury in the Cumberland County, Tennessee,
Criminal Court
(State Criminal Court), and pled guilty to a misdemeanor.
ISSUES
1. Whether the Petitioner is subject to the minimum mandatory five year exclusion
provisions of section
1128(c)(3)(B) of the Act.
2. Whether Petitioner was "convicted" of a criminal offense within
the meaning of sections 1128(a)(1) and
(i) of the Act.
3. Whether Petitioner was convicted of a criminal offense "related to"
the delivery of an item or service
under the Medicaid program within the meaning of section 1128(a)(1) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Having considered the entire record, the arguments and the submissions of the
parties, and being advised
fully herein, I make the following Findings of Fact and Conclusions of Law:
1. On June 4, 1987, the State of Tennessee issued an Order (with an attached
Criminal
Information Sheet) requiring the District Attorney General to proceed against
Petitioner by way of an
"Information" on 31 counts of "substituting generic drugs for
prescribed drugs and billing Medicaid for the
brand name drugs" in violation of T.C.A. sections 39-6-451, 14-23-118b,
and 47-25-403. J. Ex. 1.
2. On April 11, 1988, Petitioner moved the State Criminal Court for an "acceptance
of pleas of
guilty" to 12 counts charging him with violating T.C.A. section 45-205-403.
J. Ex. 3.
3. All other counts in H. Gene Blankenship's Information were subject to an
Order of nolle
prosequi signed by State Criminal Court Judge Leon C. Burns, Jr. J. Ex. 6.
4. Judge Burns signed an Order of "Acceptance of Guilty Plea." J.
Ex. 4.
5. On April 11, 1988, based on stipulated facts, the State Criminal Court
found Petitioner guilty
on 12 counts of violating T.C.A. 45-205-403; the Court issued the maximum sentence
of $500.00 for each
violation and a jail sentence of 11 month and 29 days on each count (to be served
concurrently). J. Ex. 7.
6. On April 11, 1988, pursuant to T.C.A. 40-21-109, the State Criminal Court
ordered that all
proceedings be deferred for a period of 11 months and 29 days, that judgment
of guilt not be entered until
further order of the court, and that Petitioner be placed on probation for 11
months and 29 days. J. Ex. 7; J.
Ex. 8.
7. The judgment dated April 11, 1988 and T.C.A. 45-205-403, themselves, do
not establish that
Petitioner's conviction was "related to" the delivery of an item or
service under the Medicaid program,
because the petitioner pled guilty under T.C.A. 45-205-403 to misrepresenting
the origin of drugs.
8. The testimony of Special Agents Daniel and Wright is relevant. See, Tr. pp. 18-19.
9. The testimony of Special Agent Raymond Daniel, Jr., Medicaid Fraud Control
Unit, Tennessee Bureau
of Investigation, and Special Agent Douglas Wright, Office of the Inspector
General, Department of Health
and Human Services, establish that Petitioner's conviction was "related
to" the delivery of an item or
service under Medicaid. See, Tr. p. 23-35 and pp.41-44.
10. Although the Medicaid fraud charges in the criminal information were dismissed,
the criminal
information supports the testimony of Special Agents Daniel and Wright in establishing
that Petitioner's
conviction was "related to" the delivery of an item or service under
Medicaid. See, J.Ex. 6.
11. Petitioner, a pharmacist, was "convicted" of a criminal offense
on April 11, 1988 within the
meaning of sections 1128 (a)(1) and 1128(i) of the Act.
12. Petitioner pled guilty and was convicted of a criminal offense "related
to" the delivery of an item or
service under Medicaid, within the meaning of section 1128(a)(1) of the Act.
13. The I.G.'s action in excluding the Petitioner from the Medicare and Medicaid
programs for
five years was appropriate and required by the Act and Regulations.
DISCUSSION
I. Petitioner was "Convicted" of a Criminal Offense as a Matter of Federal Law.
Section 1128(i) of the Act provides that an individual has been "convicted" of a criminal offense when:
(1) a judgment of conviction has been entered against the individual or entity
by a Federal,
State or local court, regardless of whether there is an appeal pending or whether
the judgment of conviction
or other record relating to criminal conduct had been expunged;
(2) there has been a finding of guilt against the individual or entity by
a Federal, State, or
local court;
(3) a plea of guilty or nolo contendere by the individual, or entity has been
accepted by a
Federal State, or local court; or
(4) the individual or entity has entered into participation in a first offender
deferred
adjudication or other arrangement or program where judgment of conviction has
been withheld.
Petitioner argues, in essence, that his plea does not fall within the reach
of section 1128(i) because: (1) the
Tennessee State Court never "accepted" a plea of guilty within the
meaning of section 1128(i)(3) of the
Act; and (2) a "judgment of conviction" was never "entered,"
within the meaning of section 1128(i)(1) or
"withheld" within the meaning of section 1128(i)(4) of the Act. Instead,
Petitioner argues that there was a
deferral of judgment or "diversion" which is akin to a situation where
prosecution has been withheld.
Petitioner also argues that the I.G.'s policy is that pre-trial diversions are
not subject to mandatory
exclusions.
The I.G. contends that section 1128(i)(4) encompasses H. Gene Blankenship's
situation. I.G. Br. 4. The
I.G. notes that Mr. Blankenship's period of probation has not yet expired and
argues that whether judgment
will ever be entered is, at this point, a speculative matter. The I.G. also
argues that the Tennessee program
in question does not have the characteristics of a pre-trial diversion program.
In support of this argument,
the I.G. notes that Mr. Blankenship was ordered to pay a fine, was not diverted
to any community service
or rehabilitation program, and was placed on probation subject to supervision
by a parole board. The I.G.
argues that prosecution was not deferred because, under the plea arrangement,
if parole were violated, trial
would not be necessary prior to sentencing. The I.G. asserts that all that was
withheld was a judgment of
guilt under the terms of the substantive statute and that judgment was, in fact,
"entered" under the terms of
the plea agreement program (citing section 40-21-109 of the Code). Finally,
the I.G. asserted that he does
not have a policy that pre-trial diversions are not subject to mandatory exclusions.
I find and conclude that Petitioner was "convicted" within the meaning
of section 1128(a)(1) and (i)(3) and
(i)(4) because it is axiomatic that the interpretation of a federal statute
or regulation is a question of federal
and not state law. United States v. Allegheny Co., 322 U.S. 174, 183 (1944);
United States v. Anderson
Co., Tenn., 705 F.2d 184, 187 (6th Cir., 1983), cert. denied, 464 U.S. 1017
(1984). My task is to interpret
the words of section 1128 of the Act in light of the purposes that section 1128
was designed to serve. See
Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608 (1979).
The term "accepted" in section 1128(i)(3) is defined by Webster's
Third New International Dictionary,
1976 Unabridged Edition, as the past tense of "to receive with consent."
The term "accepted" is the
opposite of the term rejected. Judge Burns of the Criminal Court of Cumberland
County, Tennessee, did
not reject H. Gene Blankenship's plea of guilty. Quite the contrary, I find
from a reading of Joint Exhibits
6 and 7 that Judge Burns "accepted" the Petitioner's plea of guilty
on April 11, 1988, within the meaning of
section 1128(i)(3). Once Judge Burns signed the April 11, 1988 Order authorizing
"Acceptance of Guilty
Plea" (J. Ex. 4), the provisions of subsection 1128(i)(3) were triggered,
and what happened after that is of
no consequence to the determination that Mr. Blankenship was "convicted",
as a matter of federal law,
within the meaning of section 1128(i)(3) of the Act.
I also find and conclude that the circumstances of this case also fall within
the reach of subsection
1128(i)(4). This subsection includes within the definition of convicted the
situation in which an
"individual has entered into participation in a first offender or other
program where judgment of conviction
has been withheld." The Order memorializing H. Gene Blankenship's plea
specifically states that "all
proceedings in this cause will be deferred for a period of . . . ." J.
Ex. 8. Pursuant to the Tennessee Code,
section 40-21-109, the court could dismiss the proceedings only after satisfactory
completion of probation.
On its face, the treatment of Mr. Blankenship's case by the Tennessee court
falls within the term "other
program where judgment of conviction has been withheld," as a matter of
federal law. Moreover, section
40-21-109 of the Tennessee Code states that even after dismissal of the proceeding
and expungement of the
public record, nonpublic records are retained which "constitute the official
record of conviction" and are
admissible in certain, albeit narrowly proscribed, court proceedings.
II. H. Gene Blankenship's Conviction "Related to" the Delivery of
a Medicaid Item Within The
Meaning of Section 1128 of The Act.
Petitioner argues that even if I rule that he was "convicted," he
should not be excluded because the offense
was not a program-related crime giving rise to a mandatory exclusion under section
1128(a)(1) of the Act.
Petitioner argues that the offense was a trademark violation committed against
the trademark owner, not
against Medicare or Medicaid and, therefore, not "related to" the
delivery of an item or service under
Medicare or Medicaid. Petitioner states that it was Congress' intent that only
a fraud against the Medicare
and Medicaid programs would invoke the mandatory exclusion provisions of section
1128(a)(1) and that
the State's action in dropping the Medicaid fraud charges against him effectively
terminated the I.G.'s
opportunity to exclude Petitioner from Medicare and Medicaid. Petitioner also
argues that since the State
statute (section 47-25-403) on its face does not mention Medicaid, Medicare,
or any health care program, a
conviction under the State provision could not logically be considered a violation
against Medicaid.
Petitioner argues that fraudulently selling a vacuum cleaner to a Medicaid patient
would not invoke the
mandatory exclusion provisions and, accordingly, neither should selling a beneficiary
prescription
medication if the State statute under which a person admits guilt relates to
a trademark violation rather than
a Medicaid fraud violation. Finally, Petitioner argues that the mandatory exclusion
would violate the
double jeopardy clause, as he has already been convicted under Tennessee law
and the federal exclusion
would result in multiple punishments for the same offense. Petitioner cites
the recent Supreme Court case
of United States, v. Irwin Halper 57 U.S. Law Week 4526 (No. 87-1383, May 15,
1989), as support for his
position and argues that the exclusion is "punitive" because it did
not attempt to make the government
whole (actual damages suffered and expenses incurred in prosecution), but caused
economic loss to
Petitioner (Mr. Blankenship had to sell his pharmacy).
The I.G. argues that the substance of the offense was dispensing generic prescription
drugs under brand
labels and billing Medicaid for the higher priced brand label drugs. The I.G.
argues that Medicaid patients
could have been harmed by not receiving the specific drug prescribed by the
physician and that both the
patients and the program were harmed. The I.G. argues that, in any event, H.
Gene Blankenship's
conviction is "related to" the delivery of prescription medication
to Medicaid patients. The I.G. also argues
that the Petitioner's restrictive reading of section 1128 of the Act is contrary
to both the plain language of
the law and to Congressional intent. Finally, the I.G. argues that I have no
authority to invalidate the
exclusion based on the double jeopardy clause because to do so would require
me to invalidate as
unconstitutional the mandatory exclusion statute itself. The I.G. also argues
that Halper, supra, would not
prohibit this exclusion because this case is legally and factually distinguishable.
I find and conclude, as a matter of federal law, that the mandatory exclusion
provisions of section 1128 are
not limited to situations where a medical provider or other individual or entity
is convicted under a statute
expressly criminalizing fraud against a federal or state health care program.
Several State statutes were
involved here: (1) TCA 14-23-118(b) (recodified as TCA 71-5-118(b)), a State
statute specifying
sanctions for fraudulently obtaining benefits for payments for medical assistance;
(2) TCA 39-6-451, a
State statute making it illegal to substitute a drug for one prescribed by the
physician (except under
specified circumstances); and (3) TCA 47-25-403, a State statute making it illegal
to knowingly
misrepresent the origin of a drug without the written authority of the owner
of the trademark for the drug.
The original criminal information contained reference to TCA 14-23-118(b) and
TCA 39-6-451, but the
final judgment and order of the court referred only to TCA 47-25-403, inasmuch
as all counts in the
criminal information referring to TCA 14-23-118(b) were dropped and the order
amending the remaining
counts replaced references to TCA 39-6-451 with references to TCA 47-25-403.
J.Exs. 2-6.
Petitioner bases much of his case on distinctions among these statutes and
the fact that the judgment and
order of the court referred only to a statute which did not expressly prohibit
Medicaid fraud (i.e. not TCA
14-23-118(b)). One can only speculate as to why the State chose to proceed as
it did. But the vagaries of
state jurisprudence should not dictate an unreasonable and unfair result under
the facts of a case such as
this, where it is clear that the "conviction" was "related to"
Medicaid within the meaning of section
1128(a)(1) and (i).
The test of whether a "conviction" is "related to" Medicaid
must be a common sense determination based
on all relevant facts as determined by the finder of fact, not merely a narrow
examination of the language
within the four corners of the final judgment and order of the criminal trial
court.
The inquiry is whether the conviction "related to" Medicaid fraud,
not whether the state court convicted
Petitioner of Medicaid fraud. Thus, my task is not simply to examine the judgment
and state criminal
statute to determine whether they specifically refer to Medicaid fraud. Rather,
my task is to examine all
relevant conduct to determine if there is a relationship between the judgment
of conviction and the
Medicaid program. Had Congress intended a different result, it would have used
the phrase "conviction
for" or conviction "restricted to" instead of "related to."
An examination of whether a conviction is
"related to" Medicaid necessarily involves an inquiry into Petitioner's
conduct.
Accordingly, the finder of fact must consider all relevant documents pertaining
to the trial court
proceeding. These may include the indictment, the transcript of the sentencing
proceeding, and plea
agreements. Of course, the finder of fact must also consider the relevant testimony
of witnesses.
Here, the criminal information specifically referred to Medicaid fraud, and
the uncontroverted testimony of
two witnesses at the May 24, 1989 hearing established that the drugs were indeed
purchased with Medicaid
eligibility cards as part of a "sting" operation. The fact that the
Medicaid fraud charges in the criminal
information were dismissed is not a bar to considering evidence that this conviction
was "related to" the
Medicaid program. The original criminal information, along with the testimony
of the two witnesses,
establish that the "conviction" of Petitioner was "related to"
the delivery of a Medicaid item within the
meaning of section 1128 of the Act. Petitioner does not deny that he sold some
of these drugs to Medicaid
patients and that he billed Medicaid for them. The testimony of Special Agents
Daniel and Wright
establishes that the drugs were purchased with Medicaid eligibility cards and
billed to Medicaid. Tr. at 23-
26, 30-35 and 43. Thus, whether or not the State statute under which he was
"convicted" specifically
mentioned Medicaid, his conviction was "related to" the Medicaid program.
Black's Law Dictionary, Fifth Edition (West Publishing 1979) defines "related"
as: "standing in relation;
connected; allied; akin." Clearly, the offense for which H. Gene Blankenship
was convicted was
"connected" to the delivery of an item or service under Medicaid.
This case should not be decided in a
vacuum, or with a strict, hypertechnical interpretation of the term "related
to" in section 1128(a)(1) of the
Act. There is a simple, common-sense connection, supported by the record, between
the actions associated
with the conviction and the Medicaid program. Petitioner would have me rule
that the billing of Medicaid
for the higher-priced drugs was only incidental to the offense of misrepresenting
the origin of the drugs.
Petitioner's strained reading of section 1128 of the Act is not borne out by
the plain words of the Act.
Petitioner also attempts to illustrate his point by arguing that if he had
sold vacuum cleaners, instead of
drugs, he would not have been excluded. I do not find this argument to be persuasive.
The fact is,
Medicaid was billed for higher priced drugs because the origin of the drugs
was misrepresented; there was
a direct monetary impact on the program which directly affected the financial
integrity of the program.
Clearly, the offense was one that "related to" the Medicaid program,
and "related to" is all section
1128(a)(1) of the Act requires. The same outcome would result for the illega
sale of vacuum cleaners if the Medicaid program were billed for the vacuum cleaners.
In the recent Decision in the case of Jack W. Greene v. Inspector General,
Appellate Docket No. 89-59,
Decision No. 1078 (July 31, 1989), the Appellate Division of the Departmental
Appeals Board (in
reviewing the decision of the ALJ) stated (at page 7): "The false Medicaid
billing and the delivery of the
drugs to the Medicaid recipient are inextricably intertwined and therefore 'related'
under any reasonable
reading of that term."
I need not address the I.G.'s contention that I have no authority to rule on
the double jeopardy question
raised by the Petitioner, as I conclude that Halper, supra, does not apply to
this case.
In Halper, the Supreme Court held that under some circumstances the imposition
of civil penalties may
violate the double jeopardy clause of the Sixth Amendment to the United States
Constitution. The Court
held that the imposition of a penalty under the False Claims Act, 31 U.S.C.
3729-3231, could constitute
double jeopardy in the narrow circumstances where there existed a prior federal
criminal conviction for the
false claims for which the civil penalty was imposed and where there was not
even a rough relationship
between the amount of the penalty and the cost to the government resulting from
the false claims.
This case is distinguishable both legally and factually from Halper. First,
this case involves a state
conviction whereas Halper involved a federal conviction. Double jeopardy does
not apply to a subsequent
federal prosecution based on facts which led to a state conviction. Chapman
v. U.S. Dept. of Health &
Human Services, 821 F.2d 523 (10th Cir. 1987); Abbate v. United States, 359
U.S. 187 (1959). Next,
Halper involved the application of a different law, the False Claims Act. Finally,
Halper involved different
factual circumstances -- the federal government was attempting to recover approximately
$130,000 in civil
penalties based on an individual's federal conviction of overcharging the Medicare
program by $585. 57
LW 4527. While the Court held that the double jeopardy clause prevented the
government from
recovering an excessively large amount not rationally related to the financial
loss incurred, the Court noted
that the rule is one for "the rare case ... where a fixed-penalty provision
subjects a prolific but small-guage
offender to a sanction overwhelmingly disproportionate to the damages he has
caused." 57 LW at 4530.
There has been no showing of such a sanction in this case. Moreover, the major
purpose of the exclusion
law is not to punish, but to protect program integrity by preventing untrustworthy
providers from having
ready access to the Medicare and Medicaid trust funds. See, H.R. Rep. No. 97-158,
97th Cong., 1st Sess.
Vol. III, 329, 344, (1981); S. Rep. No. 139, 97th Cong., 1st Sess. 461-62 (1981),
1981 U.S. Code Cong. &
Ad. News 727-28; Preamble to the Regulations (48 Fed. Reg. 38827 to 38836, August
26, 1983).
III. A Minimum Mandatory Five Year Exclusion was Required in this Case.
Section 1128(a)(1) of the Act clearly requires the I.G. to exclude individuals
and entities for a minimum
period of five years from the Medicare and Medicaid programs when such individuals
and entities have
been "convicted" of a criminal offense "related to" the
delivery of an item or service under the Medicare or
Medicaid programs within the meaning of section 1128(a)(1) of the Act. Congressional
intent on this
matter is clear:
A minimum five-year exclusion is appropriate, given the seriousness of the
offenses at issue. . . .
Moreover, a mandatory five-year exclusion should provide a clear and strong
deterrent against the
commission of criminal acts.
S. REP. No. 109, 100th Cong., 1st Sess. 2; reprinted in 1987 U.S. CODE CONG.
and ADMIN. NEWS
682, 686.
Since I have found and concluded that Petitioner was "convicted"
of a criminal offense and it was "related
to" the delivery of an item under the Medicaid program within the meaning
of section 1128(a)(1) and (i) of
the Act, I conclude that the I.G. was required to exclude the Petitioner for
a minimum of five years.
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the I.G.'s
determination to exclude the
Petitioner from participation in the Medicare and Medicaid programs for five
years was appropriate and
required by the Act and Regulations because H. Gene Blankenship was "convicted"
of a criminal offense
"related to" the delivery of an item under the Medicaid program within
the meaning of section 1128(a)(1)
and (i) of the Act.
IT IS SO ORDERED.
________________________________
Charles E. Stratton
Administrative Law Judge