Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
ViNita R. Warren,
Petitioner,
- v. -
The Inspector General.
DATE: June 19, 1996
Docket No. C-96-058
Decision No. CR423
DECISION
By letter dated November 30, 1995, 1/ the Petitioner
herein, was notified by the Inspector General (I.G.), of
the U.S. Department of Health & Human Services, that it
had been decided to exclude Petitioner 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), which are referred to herein as "Medicaid." The
I.G.'s rationale was that exclusion, for at least five
years, is mandated by 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 request for review of the I.G.'s
action by an administrative law judge of the Departmental
Appeals Board (DAB). The I.G. moved for summary
disposition.
Because I determined that there are no facts of
decisional significance genuinely in dispute, and that
the only matters to be decided are the legal implications
of the undisputed facts, I have granted the I.G.'s motion
and decided the case on the basis of the parties' written
submissions. 2/
I find no reason to disturb the I.G.'s determination to
exclude Petitioner from participation in the Medicare and
Medicaid programs for a period of five years.
PETITIONER'S ARGUMENT
In her request for a hearing and during the telephone
prehearing conference call on February 5, 1996,
Petitioner admitted that she was convicted of a
misdemeanor for receiving a bribe for giving out
unauthorized information. Petitioner contends that the
offense for which she was convicted did not warrant
exclusion under section 1128(a)(1) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Maryland's Medicaid program is administered by the
Maryland Department of Health and Mental Hygiene (DHMH).
I.G. Ex. 9.
2. Chesapeake Health Plan Inc. (Chesapeake) is a
private HMO (health maintenance organization)
incorporated in the State of Maryland. I.G. Exs. 8 - 10.
3. Pursuant to an HMO contract between Chesapeake and
DHMH, Chesapeake may enroll people eligible for Medicaid.
DHMH will then pay Chesapeake a monthly capitation fee
for each enrollee for the services rendered by
Chesapeake. In return, Chesapeake is responsible for
providing, arranging, and paying for all medical items
and services to which enrollees are entitled under the
Medicaid State plan. I.G. Exs. 8 - 10.
4. HMOs in Maryland are allowed to recruit individuals
to increase their business. I.G Exs. 8 - 10.
5. James Donovan was a marketing representative
employed by Chesapeake. I.G. Exs. 9, 10.
6. Chesapeake paid Donovan a commission based on the
number of Medicaid recipients he successfully enrolled
each month. I.G. Exs. 9, 10.
7. HMOs generally use traditional marketing methods in
publicizing their services. The HMOs are not entitled to
lists of names or addresses of Medicaid recipients,
inasmuch as these are protected by State privacy laws.
8. Petitioner is a social worker who, at all times
relevant to this proceeding, was employed by the State of
Maryland, Department of Human Resources, as a case worker
in the Palmer Park Department of Social Service (DSS) of
in Prince George's County. I.G. Exs. 9, 10.
9. As a DSS caseworker, Petitioner determined the
eligibility of applicants for Medicaid and other
entitlements. I.G. Exs. 9, 10.
10. At DSS, Petitioner had access to a computer data
base, which contained information on Medicaid recipients,
including their names and addresses, as well as the names
and ages of their family members, income, assets, and the
family members' Medicaid numbers. I.G. Exs. 9, 10.
11. DSS employees are prohibited by Maryland law from
disclosing any information about Medicaid recipients to
anyone outside of the DSS offices. I.G. Exs. 6, 7, 9,
10.
12. Petitioner was approached by Mr. Donovan who
explained to her that it was his job to enroll Medicaid
recipients into Chesapeake and that he could more readily
market his services if he knew Medicaid recipients' names
and addresses. I.G. Exs. 9, 10.
13. On several occasions between January 1994 and
September 1994 Petitioner gave Mr. Donovan computerized
lists of the information he sought pertaining to Medicaid
recipients and she in turn was paid for providing such
information to him. I.G. Ex. 9 - 12.
14. In February 1995, the Medicaid Fraud Control Unit of
the State of Maryland began an investigation of the
selling of names and addresses of Medicaid recipients to
Chesapeake representatives. I.G. Ex. 9.
15. On June 13, 1995, a criminal indictment was filed in
the Circuit Court of Baltimore City charging Petitioner
with receiving bribes and rewards from January 1994 to
September 1994, the purpose and intent of which were to
influence her in the performance of her official duties
to her employer by inducing her to disclose confidential
information on Maryland Medicaid recipients in violation
of Article 27, section 22 of the Annotated Code of
Maryland. I.G. Exs. 11, 12.
16. Petitioner and the Office of the Attorney General
entered into a plea agreement, whereby Petitioner agreed
to plead guilty to the criminal information charging her
with receiving a reward from persons seeking to influence
her in the performance of her official duties. I.G. Ex.
13.
17. The guilty plea was accepted by the judge for the
Circuit Court for Baltimore City and the judgment of
conviction was entered on August 16, 1995. I.G. Exs. 11,
14.
18. Petitioner was sentenced to serve six months, which
sentence was suspended. Petitioner was released on
supervised probation for a period of one year, ordered to
perform 200 hours of community service, and ordered to
pay court costs. I.G. Ex. 14.
19. Petitioner's plea of guilty which was accepted by
the court and the entry of the judgment of conviction
both satisfy the definition of conviction found in
section 1128(i) of the Act for purposes of mandatory
exclusion. Findings 17, 18.
20. Petitioner's conviction for improperly disclosing
the names of Medicaid recipients to the representative of
a Medicaid HMO is 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 1 - 19.
21. The Secretary is required by section 1128(a)(1) of
the Act to exclude Petitioner from participation in
Medicare and to direct the State to exclude her from
participation in State health care programs because of
her conviction in a program-related offense.
22. The mandatory minimum period of an exclusion of a
person convicted of a program-related offense is five
years. Act, section 1128(c)(3)(B).
23. The Secretary has delegated to the I.G. the duty to
impose the mandatory exclusion of a person convicted of a
program-related offense. 48 Fed. Reg. 21,661 (1983); 42
C.F.R. 1001.101.
24. Petitioner is subject to a mandatory minimum
exclusion of five years for her conviction of a criminal
offense related to the delivery of an item or service
under the Medicaid program. Findings 1 - 23.
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 the Medicare or Medicaid programs to be
excluded from participation in such programs for a period
of at least five years.
DISCUSSION
The law relied upon by the I.G. to exclude Petitioner
requires, initially, that the person charged have been
convicted of a crime. Section 1128(i) of the Act
provides that an individual will be deemed convicted
under any of the following circumstances:
(1) when 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 has been expunged;
(2) when there has been a finding of guilt against
the individual or entity by a Federal, State, or
local court;
(3) when a plea of guilty or nolo contendere by the
individual or entity has been accepted by a Federal,
State, or local court; or
(4) when the individual or entity has entered into
participation in a first offender, deferred
adjudication, or other arrangement or program where
judgement of conviction has been withheld.
In this case, sections 1128(i)(1) and (3) of the Act are
clearly applicable. The Circuit Court of Baltimore City,
Maryland accepted the Petitioner's plea of guilty on
August 18, 1995 and entered a judgment of conviction
against her for receiving a bribe. I.G. Exs. 11, 13 -
15. The fact that Petitioner pled guilty to a crime and
the court accepted her plea constitutes a conviction
within the meaning of section 1128(i)(3) of the Act.
Also, the entry of the judgment of conviction by the
court is within the definition of conviction as set forth
in section 1128(i)(1) of the Act. The Petitioner was
therefore convicted of a criminal offense within the
meaning of both sections 1128(i)(1) and (3).
Next, the statute requires that the criminal activity
must have been related to the delivery of a health care
item or service under the Medicare or Medicaid program.
On this issue, the regulations are clear that program-
related offenses include "the performance of management
or administrative services relating to the delivery of
items or services under any such program." 42 C.F.R.
1001.101.
An appellate panel upheld an administrative law judge's
reasoning that "[t]he determination of whether a
conviction is related to the delivery of an item or
service under the Medicaid program `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.'" Surabhan Ratanasen, M.D., DAB 1138 at 5 (1990)
(citing Jack W. Greene, DAB 1078 (1989), aff'd sub nom.
Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990)).
Most relevant to the facts herein are DAB decisions
uniformly upholding section 1128(a)(1) exclusions for
convictions of receiving kickbacks or bribes for
referrals of Medicaid or Medicare business. These cases
are comparable to Petitioner's case. Asadollah
Amrollahifar, Ph.D, DAB CR238 (1992). See also Niranjana
B. Parikh, M.D., et al., DAB 1334 (1992); Arthur V.
Brown, M.D., DAB CR226 (1992); John J. Tolentino, M.D.,
et al., DAB CR180 (1992). Thus, the receipt of such
unlawful remuneration is an offense related to the
Medicare and Medicaid programs. In Amrollahifar, a
psychologist was convicted for receiving money in
exchange for the "stickers" of Medicaid recipients. The
petitioner in Amrollahifar gave these stickers to a
medical supply company who used the stickers to obtain
payment from Medicaid for supplies that were
unauthorized, unnecessary, and inflated in price. The
administrative law judge held that "the delivery of items
under Medicaid played an essential and integral role in
petitioner's criminal conduct and conviction" and that
"without this connection, petitioner would not have
obtained the stickers in question and would not have
subsequently sold them to [the medical supply company.]"
Amrollahifar, at 4. Similarly, in Petitioner's case, the
bribes were offered and received to enable Chesapeake to
market its HMO services to Medicaid recipients, whom it
might not have identified without Petitioner's improper
disclosure.
The acts which led to Petitioner's conviction would
likely never have occurred absent her connection to the
Medicaid program. Therefore, I conclude that the
delivery of HMO items and services under Maryland's
Medicaid program played an essential and integral role in
Petitioner's criminal conduct, such that her conviction
is related to the delivery of items or services under
Medicaid, within the meaning of section 1128(a)(1) of the
Act.
CONCLUSION
Petitioner's exclusion, for at least five years, is
mandated by sections 1128(a)(1) and 1128(c)(3)(B) of the
Act because of her conviction of a criminal offense
related to the delivery of an item or service under the
Medicaid program.
Joseph K. Riotto
Administrative Law Judge
1. The notice letter contained an error, and a second
letter explaining and correcting the error was mailed to
Petitioner on January 19, 1996. I.G. Ex. 3. Although
the first paragraph of the notice letter correctly states
that the exclusion was the result of Petitioner's
conviction of a "criminal offense related to the delivery
of an item or service under Medicaid," the third
paragraph states that the conviction was for a "criminal
offense relating to neglect or abuse of patients in
connection with the delivery of a health care item or
service." The January 19, 1996 letter makes clear that
the exclusion is based upon section 1128(a)(1) of the Act
and states that Petitioner has been convicted of a
criminal offense related to the delivery of an item or
service under Medicaid.
2. The I.G. submitted a "Memorandum of Law in
Support of the I.G.'s Motion for Summary Disposition,"
proposed findings of facts and conclusions of law, and 15
exhibits. I designate the I.G.'s exhibits as "I.G. Ex."
Petitioner did make a submission and Petitioner did not
object to any of the documents submitted by the I.G.
Thus, I admit I.G. Exs. 1 - 15.