Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
DATE: June 8, 1990
Docket No. C-196
In the Case of:
Oscar Bracks, Jr.
Petitioner,
- v. -
The Inspector General.
DECISION
Petitioner requested a hearing on a November 16, 1989 determination by the
Inspector General (I.G.) to
exclude Petitioner from participation in the Medicare program and any State
health care program, as
defined in section 1128(h) of the Social Security Act (Act), for a period of
five years.
During a February 27, 1990 prehearing conference, the I.G. moved for summary
disposition of the hearing
request and I set a schedule for submissions on this motion. The I.G. timely
submitted a brief and exhibits
setting out a legal and factual basis for the exclusion. Petitioner did not
respond. When contacted,
Petitioner explained that his attorney had ceased to represent him and that
he was uncertain whether he
would pursue the request for a hearing. In light of this circumstance, I issued
an Order to show cause why
I should not rule on the I.G.'s motion, permitting Petitioner an additional
10 days after receiving the Order
to submit a response to the I.G.'s motion.
Since Petitioner has not submitted a response to this date, I am granting the
I.G.'s motion for summary
disposition and I am affirming the exclusion based upon the following facts
presented by the I.G. and
uncontested by Petitioner, and conclusions of law which I have made based on
those facts.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Petitioner is a podiatrist practicing in the State of Texas. I.G. Ex. 1.
2. On January 26, 1989, Petitioner was convicted by the United States District
Court for the Northern
District of Texas of the criminal offense of fraud against the Medicare program
under section 1128B of the
Social Security Act (Act) and was sentenced to make restitution and to serve
five years of probation. I.G.
Ex. 2.
3. The criminal offense consisted of false statements and false representations
of a material fact in a claim
for Medicare reimbursement. I.G. Ex. 2.
4. Under section 1128(a)(1) of the Act, the Secretary is required to exclude
individuals or entities who are
"convicted of a criminal offense related to the delivery of an item or
service" under the Medicare program.
5. Petitioner was "convicted" of a criminal offense within the meaning
of sections 1128(a)(1) and 1128(i)
of the Act.
6. The criminal offense was by definition "related to the delivery of
an item or service" under the
Medicare program, within the meaning of section 1128(a)(1).
7. The I.G. properly excluded Petitioner for a minimum period of five years
as required by section
1128(c)(3)(B) of the Act for exclusions under the authority of section 1128(a)(1).
CONCLUSION
Based on the evidence presented in this case by the I.G. and uncontested by
Petitioner, and the applicable
law, I affirm the I.G.'s exclusion of Petitioner from participation in the Medicare
and Medicaid programs
for a minimum of five years.
_________________________
Steven T. Kessel
Administrative Law Judge