Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Dr. David Vainio, |
DATE: April 6, 2001 |
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The
Inspector General
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Docket No.C-01-158
Decision No. CR762 |
DECISION | |
Dr. David Vainio (Petitioner) is appealing
the Inspector General's (I.G.) decision, made pursuant to section 1128(a)(1)
of the Social Security Act (Act), to exclude him from participation in the
Medicare, Medicaid, and other State and federal health care programs for
a period of five years. Section 1128(a)(1) of the Act mandates exclusion
from all federal health care programs(1)
for any individual or entity "convicted of a criminal offense related to
the delivery of an item or service under title XVIII [Medicare] or under
any State health care program." Section 1128(c)(3)(B) of the Act states
that "[i]n the case of an exclusion under subsection (a), the minimum period
of exclusion shall not be less than five years . . ." The Secretary of Health
and Human Services (Secretary) has delegated to the I.G. the responsibility
to exclude any individual convicted of a program-related crime (42 C.F.R.
� 1001.101(a)), and the regulations reiterate that "no exclusion imposed
in accordance with � 1001.101 will be for less than 5 years." 42 C.F.R.
� 1001.102(a). When the I.G. imposes a five-year exclusion under 42 C.F.R.
� 1001.101, the question of whether the length of the suspension is reasonable
does not apply. 42 C.F.R. � 1001.2007(a)(2).(2)
By letter dated October 31, 2000, the I.G. notified Petitioner
of her decision to exclude him from program participation. Petitioner
filed a timely request for review, and the matter was assigned to me for
resolution. The parties have waived their rights to an in-person hearing,
and agreed that the matter be decided on the written record.(3) Without objection from the parties, I have identified
and admitted into evidence I.G. Exhibits (I.G. Exs.) 1-3, and identified
and admitted into evidence Petitioner's Exhibits (P. Exs. ) 1-2. For the reasons discussed below, I uphold the I.G.'s decision. FINDINGS OF FACT AND CONCLUSIONS
OF LAW 1. Petitioner is an optometrist licensed to practice optometry
in the State of Montana. I.G. Ex. 1. 2. Petitioner participated in the State Medicaid program
as an enrolled provider with an assigned identification number. I.G. Ex.
1. 3. On April 17, 1998, Petitioner was charged with three
felony counts of Medicaid fraud, and one count of unsworn falsification
to authorities. I.G. Ex. 2. 4. On February 11, 2000, Petitioner was convicted of two
felony counts of Medicaid fraud, and one misdemeanor count of unsworn
falsification to authorities. I.G. Ex. 3. 5. Petitioner was sentenced to six months in jail, suspended
sentence, conditional upon his payment of restitution, fines, and meeting
other conditions, including his suspension from participation in the Medicaid
program for one year, effective March 22, 2000. I.G. Ex. 3. 6. Petitioner's illegal activity resulted in losses to
the Medicaid program in excess of $17,000. I.G. Exs. 1-3. 7. Petitioner was convicted of criminal offenses related
to the delivery of an item or service under a State health care program
and falls within the scope of section 1128(a)(1) of the Act. 8. Because he was convicted of program-related crimes,
Petitioner must be excluded from participation in the Medicare, Medicaid,
and other State and federal healthcare programs, and a minimum five-year
exclusion is mandatory. 9. The State court's imposition of a one-year suspension
from participation in the Medicaid program as part of Petitioner's criminal
sentence is not relevant to the imposition of an exclusion under section
1128(a)(1). 10. The statute requires that the I.G. impose the exclusion
notwithstanding Petitioner's pending appeal, and Petitioner may not use
this forum to attack collaterally his criminal conviction. 11. The I.G. properly excluded Petitioner for a period
of five years as required by the minimum mandatory exclusion provision
of section 1128(c)(3)(B) of the Act. DISCUSSION The critical facts of this case are not in dispute. Petitioner
is an optometrist who owned and operated several optometry stores in the
State of Montana, and participated in the Montana Medicaid program as
an enrolled provider with an assigned identification number. I.G. Ex.
1; P. Ex. 2. On April 17, 1998, he was charged with three felony counts
of Medicaid fraud, in violation of Mont. Code Ann. section 45-6-313,(4)
and one misdemeanor count of unsworn falsification to authorities, in
violation of Mont. Code Ann. section 45-7-203.(5)
Two of the felony counts stemmed from his having submitted claims for
optometric services that were, in fact, performed by his brother. His
brother, though an optometrist, was not enrolled in the Montana Medicaid
program, and, under the State agency rules, to receive Medicaid payment,
a provider must be enrolled in the program and have a provider number.
I.G. Exs. 1, 3; P. Ex. 2. One felony count charged that Petitioner submitted
claims that he identified as new patient eye examinations, when, in fact,
those examinations were provided to established patients, and should have
been reimbursed at a lower rate. The misdemeanor count stemmed from Petitioner's
having submitted a Medicaid provider enrollment form omitting certain
information the State deemed significant: (1) that Petitioner provided
Medicaid services in various counties of Montana, not just one;(6)
(2) that his wife was an agent or managing employee of his business; and
(3) that his brother also had an ownership interest in the business. I.G.
Exs. 1-3. Petitioner entered pleas of "not guilty" to the charges,
but, on February 11, 2000, following a jury trial, he was convicted on
two of the felony counts and on the misdemeanor count. I.G. Ex. 3. He
was sentenced to six months in jail, with that sentence suspended conditional
upon his payment of restitution, fines, and meeting other conditions.
The sentence also included his suspension from participation in the medicaid
program for one year, effective March 22, 2000. I.G. Ex. 3. Petitioner acknowledges that he was convicted of program-related
crimes, within the meaning of the statute, but suggests that his exclusion
should be limited to the one-year suspension imposed as part of his criminal
sentence. He also points out that he has appealed his conviction, that
"many issues" are not final, and that he expects all charges to be reversed
on appeal. P. Ex. 2. He does not prevail on either argument. First, the fact that the State court judge imposed a one-year
suspension from Medicaid participation does not affect the I.G.'s authority
and responsibility to implement federal law. A State court judge has no
authority to invalidate a federal statute, even if she were so inclined,
although nothing suggests that the judge here intended to usurp the I.G.'s
authority. She simply added the suspension as part of Petitioner's criminal
penalty. The federal exclusion provisions serve a wholly different purpose
from the punitive objective of a criminal sentence. An exclusion is imposed
to protect the health care program from those who have demonstrated themselves
to be untrustworthy. Manocchio v. Kusserow, 961 F.2d 1539 (11th
Cir. 1992); Douglas Schram, R. Ph., DAB No. 838 (1992). Congress
determined that providers convicted of program-related crimes are untrustworthy,
and a threat to federal health care programs, their beneficiaries and
recipients, and set five years as the minimum exclusion time necessary
for the I.G. to insure that program interests would be protected. Thus,
these differing judgements were imposed by different adjudicators with
different goals and interests, and the State court action does not control
the federal. In Shanti Jain M.D., DAB No. 1398 (1993), an appellate
panel of the Departmental Appeals Board dismissed as "simply irrelevant"
to her section 1128(a)(1) mandatory exclusion, the length and effect of
Petitioner's suspension from state health care programs. Second, with respect to Petitioner's pending appeal, section 1128(I) of the Act specifically precludes my consideration as to whether an appeal is pending:
Nor may Petitioner use this forum to attack collaterally his criminal conviction. The regulations are explicit:
42 C.F.R. � 1001.2007(d). See also Chander Kachoria, R. Ph., DAB No. 1380 (1993) ("There is no reason to 'unnecessarily encumber the exclusion process' with efforts to reexamine the fairness of State convictions.") CONCLUSION For these reasons, I conclude that the I.G. properly excluded Petitioner from participation in the Medicare, Medicaid, and all other federal health care programs. Therefore, the five-year exclusion is sustained. |
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JUDGE | |
Carolyn Cozad Hughes Administrative Law Judge
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FOOTNOTES | |
1. "Federal health care program" is defined in section 1128B(f) of the Act as any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government, or any State health care program. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX). 2. In error, the I.G. cites 42 C.F.R. �1001.2007(a)(1) for the proposition that the issue before me is whether the length of the exclusion is reasonable. I.G.'s Brief at 6-7, 11-12. But, � 1001.2007(a)(2) explicitly makes inapplicable the reasonableness provision when the I.G. imposes the five-year minimum exclusion under 42 C.F.R. Part 1001 subpart B (Mandatory Exclusion.) 3. Petitioner declined to file a written brief; however, attached to his Request for Hearing is an October 31, 2000 letter from M. Joanne Lanahan notifying Petitioner of his exclusion, which I identify as Petitioner's Exhibit 1. Also attached is a copy of Petitioner's brief in his criminal appeal to the Supreme Court of the State of Montana, submitted October 26, 2000, which I identify as Petitioner's Exhibit 2. 4. Mont. Code Ann. section 45-6-313 makes it a criminal offense for a person to obtain Medicaid payments to which he knows, or has reason to know, he is not entitled. 5. Mont. Code Ann. section 45-7-203 provides that a person commits an unsworn falsification to authorities if, in a written application for a benefit, he purposely creates a false impression by omitting information necessary to prevent his statements from being misleading. 6. In fact, Petitioner owned many optometry stores across the state. P. Ex. 2. | |