Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
DATE: September 5, 1990
Docket No. C-229
In the Case of:
David S. Muransky, D.C.,
Petitioner,
- v.-
The Inspector General.
DECISION
On January 19, 1990, the Inspector General (I.G.) notified Petitioner that
he would be excluded from
participation in the Medicare program and federallyfinanced State health care
programs, as defined in
section 1128(h) of the Social Security Act, for a period of five years. The
I.G. told Petitioner that his
exclusion resulted from his conviction in a Florida federal court of a criminal
offense related to the delivery
of an item or service under Medicare. Petitioner was advised that exclusions
from participation in
Medicare and Medicaid of individuals or entities convicted of such an offense
are mandated by section
1128(a)(1) of the Social Security Act for a period of five years. Petitioner
was advised that his exclusion
was for the minimum five-year period.
Petitioner timely requested a hearing, and the case was assigned to me for
hearing and decision. Both
parties filed motions for summary disposition of this case. Neither party contends
that there are questions
of material fact which would require an evidentiary hearing. Based on the undisputed
facts and the law, I
conclude that the exclusion imposed and directed by the I.G. in
this case is mandated by law. Therefore, I enter summary disposition in favor of the I.G.
ISSUES
1. Whether Petitioner was convicted of a criminal offense related to the delivery
of an item or service
under Medicare or Medicaid, within the meaning of section 1128(a)(1) of the
Social Security Act.
2. Whether the mandatory minimum period of exclusion amounts to an unlawful
retroactive application of
1128(c)(3)(B) to the facts of this case.
3. Whether I am without authority to adjudicate the constitutionality of a
statute that I am charged with
applying.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. At all times relevant to this case, Petitioner was a chiropractor practicing
in Florida. Stip. 1.
2. On September 27, 1985, the carrier for the Medicare Part B Insurance program
in the State of Florida,
Blue Cross and Blue Shield of Florida, Inc., notified Petitioner that payments
on all assigned Medicare
claims submitted by him would be suspended immediately. Stip. 1.
3. On November 15, 1988, Petitioner was charged in a criminal information in
the United States District
Court for the Southern District of Florida with four counts of unlawfully devising
a scheme and artifice to
defraud and to obtain money from the Medicare program through its carrier, Blue
Shield, by means of false
and fraudulent pretenses, representations and promises. Stip. 1.
4. The violations of which Petitioner was charged in the criminal information
occurred in 1984 and 1985
and involved the submission of claims for spinal manipulations which were allegedly
performed by
Petitioner. Stip. 2.
5. Petitioner did not perform said spinal manipulations. Stip. 2.
6. On March 31, 1989, the federal court entered a judgment showing that Petitioner
pled guilty to all four
counts of the criminal information and that the court found him guilty on all
four counts. I.G. Ex. B.
7. On March 22, 1989, the federal court sentenced Petitioner to three years'
probation, a fine of $4,000.00,
restitution of $245.76, and a $50.00 special assessment fee. Stip. 2.
8. Petitioner was convicted of a criminal offense related to the delivery of
an item or service under
Medicare, within the meaning of section 1128(a)(1) of the Social Security Act.
Findings 1 - 8; Social
Security Act, section 1128(a)(1).
9. Pursuant to section 1128(a)(1) of the Social Security Act, the Secretary
is required to exclude Petitioner
from participating in Medicare and Medicaid. Social Security Act, section 1128(a)(1).
10. The minimum mandatory period of exclusion for exclusions pursuant to section
1128(a)(1) of the
Social Security Act is five years. Social Security Act, section 1128(c)(3)(B).
11. The Secretary delegated to the I.G. the duty to impose and direct exclusions
pursuant to section 1128
of the Social Security Act. 48 Fed. Reg. 21662 (May 13, 1983).
12. On June 26, 1989, the I.G. notified Petitioner that he was being excluded
from participation in the
Medicare and Medicaid programs as a result of his conviction of a criminal offense
related to the delivery
of an item or service under Medicare. Stip. 2.
13. Petitioner was notified that he was being excluded from participation for
five years, the minimum
period mandated by law. Stip. 2.
14. The exclusion imposed against Petitioner by the I.G. was mandated by law.
Findings 1-14; Social
Security Act, section 1128(a)(1).
15. Petitioner was convicted after the effective date of the 1987 amendments
to the Social Security Act,
and under the terms of the Social Security Act, the mandatory minimum period
of exclusion provided for
in section 1128(c)(3)(B) applies.
16. I do not have the authority to declare a federal statute unconstitutional or to invalidate a regulation.
ANALYSIS
I. Petitioner was convicted of a criminal offense related to the delivery of
an item or service under
Medicare or Medicaid, within the meaning of section 1128(a)(1) of the Social
Security Act.
There are no disputed material facts in this case. The I.G. and Petitioner
have signed "Stipulations of Fact
and Law" (stipulation) which is now part of the record. Petitioner admits
in the stipulation that on March
22, 1989 he was convicted on his plea of guilty to criminal offenses related
to the delivery of an item or
service under Medicare. Further, Petitioner admits that his plea is a "conviction"
of an offense within the
meaning of 42 U.S.C. 1320a-7(a)(1) and 7(i) and that said exclusion was mandated
by law.
Sections 1128(a)(1) and 1128(c)(3)(B) of the Social Security Act clearly require
the I.G. to exclude
individuals and entities from the Medicare and Medicaid programs for a minimum
period of five years,
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 Social Security 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, lOOth Cong., lst Sess. 2, reprinted in 1987 U.S. Code Cong. & Admin. News 682, 686
Since Petitioner was "convicted" of a criminal offense which involved
the submission of claims to
Medicare for spinal manipulations that were not performed and said offense was
"related to the delivery of
an item or service" under the Medicare program within the meaning of section
1128(a)(1) and (i) of the
Social Security Act, the I.G. was required by section 1128(c)(3)(B) of the Social
Security Act to exclude
Petitioner for a minimum of five years. I have no discretion to reduce the mandatory
minimum five year
period of exclusion. See Jack W. Greene v. Louis Sullivan, 731 F. Supp. 835
(E.D. Tenn. 1990).
II. The mandatory minimum period of exclusion does not amount to an unlawful
retroactive application of
1128(c)(3)(B) to the facts of this case.
The record demonstrates that the conduct for which Petitioner was "convicted"
occurred in 1984 and 1985,
and that the final disposition of the proceedings resulting in the criminal
conviction did not occur until
March 31, 1989. On August 18, 1987, during the pendency of Petitioner's criminal
proceedings, Section
1128(a) of the Social Security Act was amended by the Medicare and Medicaid
Patient and Program
Protection Act of 1987, Public Law 100-93, 101 Stat. 680. While the pre-August
1987 version of section
1128 provided for an exclusion for a conviction of a program-related criminal
offense, there was no
mandatory minimum exclusion. Congress provided for the first time on August
18, 1987 that the exclusion
must be for a mandatory minimum period of five years for program-related criminal
offenses.
Petitioner argues that the I.G.'s exclusion determination amounts to an unlawful
retroactive application of
1128(a)(1) of the Social Security Act to the facts of his case. P. Reply Br.
3; P. Br. 3. Petitioner premises
this argument on his assertion that the conduct on which his license suspension
was based "relates back" to
September 1984, and that the exclusion law was amended by Congress to include
a five-year minimum
mandatory period of exclusion. Petitioner also contends that, if the law is
applied retroactively to his case,
it "is arbitrary and capricious and a denial of his Fifth Amendment Constitutional
rights." P. Br. 5
It is unnecessary for me to decide whether the exclusion law may be applied
retroactively in particular
cases, because it is evident that it was not retroactively applied in this case.
On March 31, 1989, the federal
court found Petitioner guilty of the charges filed against him, more than a
year and a half after Congress
amended 1128. The I.G.'s authority to impose and direct exclusions against Petitioner
arises from his
conviction for a criminal offense in federal court. Therefore, the act which
gave the I.G. grounds to
exclude Petitioner occurred after the date that Congress enacted statutory revisions.
III. I am without authority to adjudicate the constitutionality of a statute
that I am charged with applying.
I have considered the constitutional issues raised in this case carefully and
I conclude that I am without
authority to adjudicate them. The scope of my review in these cases is stated
in 42 C.F.R. 1001.128(a).
This section limits an appeal in this type of case to the issues of (1) whether
a petitioner was, in fact,
convicted; (2) whether the conviction related to a petitioner's participation
in the delivery of medical care
or services under the Medicare or Medicaid programs; and (3) whether the length
of the exclusion is
reasonable. These issues relate to the propriety of the imposition of the exclusion
in a particular case and I
have the authority to interpret section 1128 and the regulations promulgated
thereunder. I do not have the
authority to declare a federal statute unconstitutional or to invalidate a regulation.
Petitioner must address
these arguments in another forum, since I do not have the authority. See Section
205(b) of the Social
Security Act; Jack W. Greene, DAB Civ. Rem. C-56 at 7, aff'd, DAB App. 1078
at 18 (1989); Eulalia
Sentmanat, M.D., DAB Civ. Rem. C-88 at 7 (1989); Frank Waltz, M.D., DAB Civ.
Rem. C-86 at 8 (1989)
7
CONCLUSION
Based on the law and the undisputed material facts, 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