Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Valerie Baker, |
DATE: September 4, 2001 |
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The
Inspector General
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Docket No.C-00-839
Decision No. CR815 |
DECISION | |
DECISION I grant the Inspector General's (I.G.) Motion for partial
summary judgment, and sustain the determination of the I.G. to exclude
Valerie Baker (Petitioner) from participating in Medicare, Medicaid, and
all federal health care programs for a minimum period of five 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 the I.G.'s exclusion for a minimum period of five years is mandatory. I. Background On August 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. I decide the threshold
issue of whether the I.G. had a basis for Petitioner's exclusion. The
secondary issue: of whether it was reasonable for the I.G. to exclude
Petitioner for an additional five years more than the mandatory five-year
exclusion, will be determined in a subsequent decision. The I.G. imposed
its exclusion pursuant to section 1128(a)(1) of the Act, based on Petitioner's
conviction in the United States District Court for the Eastern District
of New York, of a criminal offense related to the delivery of an item
or service under the Medicaid program. On September 7, 2000, Petitioner appealed the exclusion.
This case was originally assigned to Administrative Law Judge Jill S.
Clifton. On April 23, 2001, this case was reassigned to me for the hearing
and decision. On October 26, 2000, Judge Clifton convened a prehearing
conference. During the conference, the parties agreed that an in-person
hearing might be necessary. Subsequently, the I.G. filed a motion for
summary judgment (I.G. Br.) accompanied by exhibits one through six. Petitioner
responded with her brief (P. Br.) accompanied by nine exhibits labeled
A though I. I have redesignated Petitioner's exhibits as P. Exs. 1 - 9.
On April 10, 2001, Petitioner submitted a reply brief (P. R. Br.) accompanied
by a new exhibit list (numbered 1 - 10), and Petitioner's exhibit 10 as
an additional exhibit. The I.G. did not object to Petitioner's exhibits.
On July 10, 2001, the I.G. provided a certified copy of I.G. Ex. 2 to
be substituted for the uncertified version. In her reply brief, Petitioner
objected to unspecified I.G. exhibits which she argued contained indictment
counts which were not included in her plea agreement. See I.G.
Ex. 3. I note Petitioner's concerns, but I nevertheless receive into evidence
I.G. Exs. 1- 6 and P. Exs. 1-10 and give the exhibits such weight as I
deem appropriate to decide the single issue for this phase of the case. Upon cursory review of the briefs filed by the parties,
it became clear that the I.G.'s basis for the exclusion of Petitioner
is adequately supported by the documents submitted by the parties. Therefore
I determined to make a decision on this issue and hold in abeyance the
issue of the reasonableness of the length of the exclusion beyond the
mandatory five-year minimum term. 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 issue in this case is 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 a medical supply company in
the State of New York. P. Ex. 9 at 1; P. Br. On February 14, 2000, Petitioner
plead guilty to count one of a ten-count indictment which was filed in
the United States District Court of the Eastern District of New York (Court)
against Petitioner and others. The indictment charged Petitioner with
conspiracy to defraud the Department of the United States Department of
Health and Human Services, a class C felony. 18 U.S.C. � 286, I.G. Ex.
2 at 1; P. Ex. 10 at 1. Petitioner does not challenge that she plead guilty
to count one as described in P. Ex. 10. As a result of her conviction, Petitioner was sentenced
to serve six months of home detention, placed on probation for a period
of two years, and was ordered to pay restitution in the amount of $120,000
to the New York City Human Resources Administration. Id. at 2. Petitioner's plea of "guilty" and the Court's acceptance
of Petitioner's plea satisfy the definition of conviction under section
1128(i)(3) of the Act which states in pertinent
part -
In her Brief and Reply Brief, Petitioner argues that the conviction is incorrect because her financial records demonstrate legitimacy of her business operations. It is the fact of the conviction of a criminal offense which causes the exclusion. The law does not permit me to look behind the conviction. Thus, Petitioner's assertion that her conviction is invalid is irrelevant because I am not permitted to consider the validity of convictions. Moreover, Petitioner cannot challenge the facts relating to her criminal conviction. See Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter Edmondson, DAB No. 1330 (1992).
Petitioner does not challenge that she is subject to an
exclusion under section 1128(a)(1) of the Act, and I so find. P. R. Br.
at 2. Section 1128(a)(1) of the Act applies to "Any individual or entity
that has been convicted of a criminal offense related to the delivery
of an item or service under [Medicare] or under any State health care
program."(2) Count one of the indictment which supports Petitioner's guilty plea describes the offense as a class C felony where,
I.G. Ex. 4 at 1. Therefore, the guilty plea of Petitioner to these acts clearly constitutes program-related misconduct. I find that Petitioner's conviction, as described above at Finding 1, is of a crime that is program-related within the meaning of section 1128(a)(1) of the Act.
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 an offense.
An exclusion of at least five years is mandatory for any
individual or entity that 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). 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 minimum five-year exclusion is mandatory. |
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JUDGE | |
Richard J. Smith 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 Medicaid program. Act, section 1128(h)(1); 42 U.S.C. � 1320a-7(h)(1). | |