Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
Carolyn Joyce Watson McKinney, |
DATE: December 17, 2001 |
- v - |
|
The
Inspector General
|
Docket No.C-01-725 Decision No. CR849 |
DECISION | |
DECISION I decide that the arguments which Petitioner, Carolyn
Joyce Watson McKinney, made to challenge the reasonableness of a 15-year
exclusion that the Inspector General (I.G.) imposed against her pursuant
to section 1128(a)(1) of the Social Security Act (Act) are rendered moot
by her previous agreement to be excluded permanently pursuant to section
1128(b)(7) of the Act. Therefore, Petitioner's hearing request raises
no issues that I may hear and decide. I dismiss Petitioner's hearing request
pursuant to 42 C.F.R. � 1005.2(e)(4), because I conclude that Petitioner
has not raised any issue which properly may be addressed in a hearing. I. Background
On March 30, 2001, the Inspector General (I.G.) notified
Petitioner that she was being excluded from participating in Medicare
and other federally funded health care programs for a period of 15 years.
The I.G. told Petitioner that she was being excluded pursuant to section
1128(a)(1) of the Act based on Petitioner's conviction of a criminal offense
related to the delivery of an item or service under Medicare or a State
Medicaid program. Petitioner requested a hearing. The case was assigned
to me for a hearing and a decision. I held a pre-hearing conference at
which the parties agreed to make written submissions of their cases in
lieu of an in-person hearing. At that pre-hearing conference, I advised
the parties that I thought Petitioner's arguments might be moot and I
advised them to brief that issue. The parties each submitted briefs. The I.G. submitted four exhibits along with her brief (I.G. Ex. 1 - I.G. Ex. 4). Petitioner did not submit exhibits. Petitioner did not object to my receiving the I.G.'s exhibits into evidence and, therefore, I receive them.
The facts that I recite in this part are not disputed.
On January 18, 2000, a criminal indictment was issued against Petitioner
in the United States District Court for the Southern District of Texas,
Houston Division. I.G. Ex. 2. The indictment alleges that Petitioner,
along with another individual, conspired and executed a scheme against
the United States to defraud Medicare and the Texas Medicaid program by
making false statements and by submitting false, fraudulent, and fictitious
reimbursement claims to these programs. Id. at 1. Count One of
the indictment describes the fraudulent scheme. Id. at 1 - 9. Counts
Two through Fifteen allege specific fraudulent claims for services. Id.
at 10 - 11. On May 30, 2000, Petitioner entered into a plea agreement.
I.G. Ex. 3. The plea agreement was signed by Petitioner, her attorney,
and, on behalf of the United States, by an Assistant United States Attorney.
Id. at 13 - 14. Petitioner agreed to plead guilty to Count Eight
of the indictment. Id. at 1; see I.G. Ex. 2 at 1 - 7, 10
- 11. At Paragraph 20 of the plea agreement, Petitioner also agreed that:
Id. at 10. Judgment was entered against Petitioner on November 1,
2000. I.G. Ex. 4. The Judgment makes no specific reference to Petitioner's
plea agreement. However, it recites that Petitioner pled guilty to Count
Eight of the indictment on May 30, 2000. Id. at 1. Count Eight
is the count to which Petitioner agreed to plead guilty. See I.G.
Ex. 3 at 1. May 30, 2000 is the date of the plea agreement. See
id. II. Issue, findings of fact and conclusions of law
The issue in this case is whether Petitioner's agreement to be excluded permanently pursuant to section 1128(b)(7) of the Act renders moot her request for a hearing to challenge the 15-year exclusion that the I.G. imposed pursuant to section 1128(a)(1) of the Act.
I make findings of fact and conclusions of law (Findings)
to support my decision in this case. These are set forth below as separately
numbered headings. I discuss each Finding in detail.
In her plea agreement, at Paragraph 20, Petitioner agreed
to be excluded permanently pursuant to section 1128(b)(7) of the Act.
The language of that agreement is explicit. It contains no ambiguities.
It provides for exclusion to be made effective on the filing date of the
plea agreement without further notice to Petitioner. Petitioner made no
showing that the agreement has at any time been rescinded. The exclusion
pursuant to section 1128(b)(7) was not superseded by the I.G.'s subsequent
exclusion of Petitioner pursuant to section 1128(a)(1) of the Act. Therefore,
Petitioner remains excluded permanently pursuant to section 1128(b)(7). Section 1128(b)(7) authorizes the Secretary of the United
States Department of Health and Human Services (or his delegate, the I.G.)
to exclude any individual or entity who has committed an act which is
described at sections 1128A, 1128B, or 1129 of the Act. Section 1128A
establishes penalties for, among other things, the filing of false and
fraudulent claims. By contrast, section 1128(a)(1) of the Act, which is
the basis for the I.G.'s more recent 15-year exclusion of Petitioner,
mandates the exclusion of any individual who has been convicted of a criminal
offense related to the delivery of an item or service under Medicare or
a State Medicaid program. The two sections (1128(b)(7) and 1128(a)(1))
obviously address very similar, but not necessarily identical, conduct.
The principal difference between them is that under (a)(1) an exclusion
is mandated only if there is a conviction for program fraud, whereas under
(b)(7) an exclusion is permitted without a conviction where the I.G. can
establish conduct in the nature of program fraud. I asked the parties to brief the question of the effect
of Petitioner's plea agreement on Petitioner's right to a hearing in this
case. The I.G. argued that Petitioner was excluded permanently pursuant
to section 1128(b)(7) regardless of any findings that I might make concerning
the exclusion that was imposed pursuant to section 1128(a)(1). The I.G.
contended that, as a consequence of the permanent 1128(b)(7) exclusion,
Petitioner had no basis with which to challenge the subsequently imposed
1128(a)(1) exclusion. Petitioner offered no argument concerning that issue.
I take Petitioner's silence as an admission that she entered into a binding
agreement with the United States which included a provision that she be
excluded permanently pursuant to section 1128(b)(7) of the Act. I do not find that the I.G.'s notice to Petitioner informing Petitioner of a 15-year exclusion pursuant to section 1128(a)(1) supersedes or replaces Petitioner's previous agreement to accept a permanent exclusion pursuant to section 1128(b)(7). The I.G. has not explained why she elected to impose a second exclusion. I infer that the I.G. felt that she had no choice but to impose the second exclusion under section 1128(a)(1) because that exclusion was mandated by Petitioner's conviction of a program related criminal offense. That is not to suggest, however, that the I.G. intended to rescind the 1128(b)(7) exclusion that was imposed pursuant to Petitioner's plea agreement. Moreover, the I.G. makes it clear in her brief that she has not rescinded the (b)(7) exclusion. I.G.'s brief at 10.
Petitioner did not request a hearing to challenge the exclusion that she agreed to accept pursuant to section 1128(b)(7) of the Act. She is not at this time arguing that the exclusion under section 1128(b)(7) was unauthorized or that it is unreasonable. Therefore, I have no authority to decide whether Petitioner's exclusion under section 1128(b)(7) was authorized or is unreasonable.
In her brief, Petitioner argues that the 15-year exclusion that the I.G. imposed against her is excessive and unreasonable. However, the issue of whether that exclusion is unreasonable is moot. Petitioner was excluded permanently pursuant to section 1128(b)(7) of the Act and has not challenged that exclusion. Petitioner would remain excluded permanently even if I were to find to be unreasonable that portion of the exclusion that the I.G. imposed under section 1128(a)(1) which exceeds the five-year minimum mandatory period for exclusions that are imposed under that section. See Act, section 1128(c)(3)(B).
I dismiss Petitioner's hearing request pursuant to 42 C.F.R. � 1005.2(b)(4). Petitioner has not raised any issue that I may properly hear and decide. The only issue raised by Petitioner in this case is whether the 15-year exclusion that the I.G. imposed pursuant to section 1128(a)(1) of the Act is unreasonable. However, that issue is moot. |
|
JUDGE | |
Steven T. Kessel Administrative Law Judge
|
|