Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Eloise Vergeire Darnell, |
DATE: June 28, 2001 |
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The
Inspector General
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Docket No.C-00-776
Decision No. CR789 |
DECISION | |
DECISION I sustain the determination of the Inspector General (I.G.)
to exclude Eloise Vergeire Darnell (Petitioner) from participating in
Medicare, Medicaid, and all federal health care programs for a period
of 10 years.(1) I find that a basis exists
for the I.G. to exclude Petitioner pursuant to section 1128(a)(1) of the
Social Security Act (Act). Further, I find that an exclusion of 10 years
is not unreasonable. I. Background By letter dated July 31, 2000, the I.G. notified Petitioner
that she was being excluded from participation in Medicare, Medicaid,
and all federal health care programs for a period of 10 years. The I.G.
imposed this exclusion pursuant to section 1128(a)(1) of the Act, based
on Petitioner's conviction in the Superior Court of California, County
of Los Angeles, of a criminal offense related to the delivery of an item
or service under the Medicaid program. By letter dated August 10, 2000, Petitioner contested
the exclusion. This case was originally assigned to Administrative Law
Judge Joseph K. Riotto. On May 2, 2001, this case was reassigned to me
for hearing and decision. On September 28, 2000, Judge Riotto convened a prehearing
conference. During the conference, the parties agreed that an in-person
hearing would not be necessary in this matter, and that this case could
be decided based upon written submissions only. The parties submitted
briefs. The I.G.'s brief (I.G. Br.) was accompanied by four proposed exhibits
(I.G. Exs. 1-4). Petitioner's brief (P. Br.) in response was accompanied
by four proposed exhibits (P. Exs. 1-4). The I.G. submitted a reply brief
(I.G. Reply). Neither party objected to my receiving into evidence the
opposition's proposed exhibits, and therefore, I receive into evidence
I.G. Exs. 1-4 and P. Exs. 1-4. I base my decision in this case on the
parties' arguments, the exhibits, and the applicable law. II. Issues, findings of fact and conclusions of law
The issues in this case are whether:
I make the following findings of fact and conclusions of law to support my decision, set forth in bold below. I then discuss my Findings in detail.
Petitioner was the owner of two health care clinics in
Long Beach, California. I.G. Ex. 3, at 5. On October 29, 1998, a felony
complaint was filed in the Municipal Court of the Long Beach Judicial
District, County of Los Angeles, State of California, against Petitioner,
and others, charging one count of grand theft, in violation of Penal Code
� 487(a), and six counts of presenting false Medi-Cal
claims, in violation of Welfare and Institutions Code � 14107. I.G. Ex.
3, at 17-19. On January 27, 1999, Petitioner pled "no contest" to the
one count of felony grand theft, and the remaining six counts of presenting
false Medi-Cal claims were dismissed. I.G. Ex. 3, at 34-35. On March 2, 1999, Petitioner was sentenced to five years'
probation on the condition that she serve 12 months in the Los Angeles
County Jail, pay a fine of $200 to Los Angeles County, and pay restitution
in the amount of $50,000 to the California Department of Health Services,
Health Care Deposit Fund. Id. at 34. On January 26, 2001, the Superior Court of California,
County of Los Angeles, granted Petitioner's request for reduction of conviction
from a felony offense to a misdemeanor offense. I.G. Ex. 4, at 1. Petitioner's plea of "no contest" and the Long Beach Municipal Court's acceptance of Petitioner's plea satisfy the definition of conviction under section 1128(i)(3) of the Act.
Petitioner does not challenge that she is subject to an
exclusion under section 1128(a)(1) of the Act, and I so find. Section
1128(a)(1) of the Act applies to any individual or entity who is convicted
of a criminal offense that is "related to the delivery of an item or service
under" Medicare or any State health care program.(2)
I find that Petitioner's conviction, as described above at Finding 1,
is of a crime that is a program-related within the meaning of section
1128(a)(1) of the Act. The Declaration in Support of the Arrest Warrant and Complaint both describe the crimes of which Petitioner was ultimately convicted. I.G. Ex. 3, at 3-19. These documents describe Petitioner as unlawfully taking from the State of California property of a value in excess of $400 as a result of Petitioner's numerous submissions of fraudulent claims for services under the Medi-Cal Act. Medi-Cal is a State health care program within the meaning of section 1128(h) of the Act. Therefore, the filing of fraudulent Medi-Cal claims clearly constitutes program-related misconduct.
Section 1128(a)(1) of the Act mandates that the I.G. exclude
any individual or entity who is convicted of any offense which is related
to the delivery of an item or service under Medicare or any State health
care program. The I.G. must exclude Petitioner, inasmuch as Petitioner
was convicted of such offenses.
An exclusion of at least five years is mandatory for any individual or entity who has been convicted of a criminal offense that is related to the delivery of an item or service under Medicare or under any State health care program. Act, sections 1128(a)(1) and 1128(c)(3)(B). In this case, the I.G. determined to exclude Petitioner for a period of 10 years. This raises the issue of whether an exclusion of 10 years is unreasonable given the evidence presented in this matter. 42 C.F.R. � 1001.102(b) provides that the following factors
may be considered to be aggravating and a basis for lengthening the period
of exclusion:
42 C.F.R. � 1001.102(c) provides that only in the event that any of the aforementioned aggravating factors justifies the exclusion for a period longer than five years, may any of the following factors be considered as mitigating and a basis for reducing the period of exclusion to not less than five years:
Evidence which does not pertain to one of the specific
aggravating or mitigating factors is not relevant and may not be used
to decide whether an exclusion of a particular length is reasonable. The
regulation does not prescribe the weight to be given to evidence that
relates to an aggravating or a mitigating factor. While the regulation
tells the decision-maker what criteria may be used to determine the length
of an exclusion, it does not tell the decision-maker how to weigh relevant
evidence to arrive at an exclusion that is reasonable in a given case. There is, however, an overall purpose to which the regulations must adhere. An exclusion is not intended to be punitive. The purpose of any exclusion that is imposed under section 1128 of the Act is "to protect federally funded health care programs and its beneficiaries and recipients from an individual who has been shown not to be trustworthy." Sou Kwei Arndt, R.Ph. et al., DAB CR692 (2000). Therefore, in deciding the length of an exclusion that is imposed pursuant to section 1128 of the Act, the question to be considered is: what is reasonably necessary to protect the programs and their beneficiaries and recipients from an untrustworthy individual? In a case involving an exclusion that is imposed pursuant to section 1128(a)(1) of the Act, the factors delineated at 42 C.F.R. �� 1001.102(b) and (c) state the criteria which may be used to answer this question.
The I.G. established the presence of three aggravating
factors against Petitioner. The factors proved against Petitioner are
as follows:
I.G. Ex. 1.
Petitioner does not dispute that the acts which serve as the basis for her conviction resulted in a financial loss to the California Medicaid program of more than $1,500. On March 2, 1999, Petitioner was sentenced and, among other things, was ordered to pay restitution to the California Department of Health Services in the amount of $50,000. I.G. Ex. 3. In fact, at the time of sentencing, Petitioner made a payment in the amount of $20,000 toward the restitution ordered by the court. Id. at 35. As demonstrated by the amount of restitution ordered, Petitioner's criminal acts clearly resulted in a financial loss to the Medi-Cal program of more than $1,500.
Petitioner argues that the time frame for the criminal acts in question is not from February 24, 1994 through December 5, 1995. P. Br. at 7. Petitioner asserts that the dates in question were "merely allegations in the felony complaint." She argues that this particular aggravating factor cannot be established solely by a listing in a criminal complaint. Id. However, the I.G. contends, and I am persuaded, that Petitioner entered a plea to count one of the criminal complaint which states that the criminal acts occurred "from on or about February 24, 1994 to on or about December 5, 1995." I.G. Ex. 3, at 17. Therefore, the time frame delineated in the complaint does in fact cover a period of approximately 22 months. The I.G. has adequately shown the existence of this aggravating factor.
Petitioner was sentenced to a period of incarceration for her criminal acts. Petitioner was sentenced to five years formal probation on the condition that she serve 12 months in the Los Angeles County Jail. I.G. Ex. 3, at 1. This is further substantiated by Superior Court of California, County of Los Angeles Minute Order which states that Petitioner is to "serve 012 months in Los Angeles County Jail." Id. at 34. I find that the I.G. has established this aggravating factor.
Petitioner concedes that she cannot establish any mitigating factors as defined under 42 C.F.R. � 1001.102(c). P. Br. at 8. Instead of claiming mitigating factors, Petitioner makes a "totality of the circumstances" argument as a basis for reduction of the exclusion period. Id. at 3. Petitioner contends that before the codification of 42 C.F.R. � 1001.102 in 1998, this tribunal relied on the "totality of the circumstances" analysis to determine the reasonableness of an exclusion period, and that such reliance is just as appropriate today as it was 10 years ago. P. Br. at 3-4. Petitioner asserts that:
Id. at 4. Petitioner asserts several arguments why the 10-year exclusion
should be found unreasonable. She argues that, after filing a petition
with the court, her conviction was reduced from a felony to a misdemeanor
one year after her "no contest" plea. Id. at 5. She argues that
she has proven to be a responsible person by keeping all appointments
with her probation officer and complying with all of the terms of her
probation. Id. Petitioner states that, since the imposition of
the exclusion, she has been a law abiding citizen for approximately five
years, and therefore has shown to be a trustworthy individual. Id.
at 6. Finally, Petitioner argues that she "voluntarily agreed not to participate
in any federal health care programs from [August 2000], even though the
sentencing court permitted her to continue working in her husband's home
health agency." Id None of these asserted factors relates to any of the mitigating factors stated at 42 C.F.R. � 1001.102(c). Therefore, I may not consider any of the alleged reasons to be factors which mitigate the length of Petitioner's exclusion.
Evidence relating to established aggravating factors proves
Petitioner to have been highly untrustworthy. No mitigating factors were
established to offset the aggravating factors. The 10-year exclusion is
not unreasonable based on such evidence. III. Conclusion I find that the I.G. was authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act. I find that a 10-year exclusion is reasonable. |
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JUDGE | |
Marion T. Silva Chief Administrative Law Judge |
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FOOTNOTES | |
1. "Federal health care program" is defined in section 1128B(f) of the Social Security Act and includes any State health care program, as defined in section 1128(h) of the Act. 2. The term "State health care program" includes a State's Medicaid program. Act, section 1128(h)(1); 42 U.S.C. � 1320a-7(h)(1). 3. Effective October 1, 2000, Title 42 of the Code of Federal Regulations was revised. In this matter, the controlling regulatory provisions are those in effect prior to October 2000, i.e., the version in effect at the time of the I.G.'s notice of exclusion dated July 31, 2000. See Robert Alan Spriggs, R.P.T., DAB CR718 (2000). | |