Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
|
IN THE CASE OF | |
Diana J. Askew, |
DATE: January 16, 2002 |
- v - |
|
The
Inspector General
|
Docket No.C-01-918
Decision No. CR857 |
DECISION | |
DECISION This case is before me pursuant to a request for hearing
dated August 16, 2001 and filed by Diana J. Askew (Petitioner), which
was received by the Civil Remedies Division of the Departmental Appeals
Board (DAB) on August 20, 2001. By letter dated July 31, 2001, the Inspector General (I.G.) notified Petitioner that she was being excluded from participation in the "Medicare, Medicaid, and all Federal health care programs," as defined in section 1128B(f) of the Social Security Act (Act), for a period of five years, the minimum mandatory period of exclusion under the Act. The I.G. informed Petitioner that she was being excluded pursuant to section 1128(a)(1) of the Act, due to her conviction in the District Court of Finney County, Kansas, of a criminal offense related to the delivery of an item or service under the Medicaid program. I held a telephone prehearing conference in this case
on September 21, 2001. The parties agreed that this matter could be decided
based on written arguments and documentary evidence, and that an in-person
evidentiary hearing was unnecessary. Both parties submitted written submissions
in support of their contentions (I.G. Br. and P. Br.) and responses (I.G.
Reply Br. and P. Reply Br.). Additionally, the I.G. submitted four proposed
exhibits. These have been identified as I.G. exhibits (I.G. Exs.) 1 -
4. Petitioner offered three exhibits. These have been identified as Petitioner's
exhibits (P. Exs.) 1 - 3. Petitioner objected to the admission of I.G.
Ex. 3 on hearsay grounds. P. Reply Br. at 2. That document is the "AFFIDAVIT
FOR PROBABLE CAUSE AND ARREST WARRANT" prepared by Mr. Robert E. Swafford,
an Investigator with the State of Kansas Office of Attorney General. Mr.
Swafford's affidavit is a formal prosecutorial document which was filed
with the District Court of Finney County, Kansas, and forms part of the
criminal proceedings that gave rise to Petitioner's request for hearing,
which request is now before me. Consequently, I deny Petitioner's objection
and admit I.G. Exs. 1 - 4 and P. Exs. 1 - 3 into evidence. It is my decision to sustain the determination of the
I.G. to exclude Petitioner, Diana J. Askew, from participating in the
Medicare, Medicaid, and all federal health care programs for a period
of five years. I base my decision on the documentary evidence, the applicable
law and regulations, and the arguments of the parties. It is my finding
that Petitioner was convicted of a criminal offense related to the delivery
of an item or service under the Medicaid program. Additionally, I find
that the five-year exclusion imposed by the I.G. is the minimum period
mandated by law and that I am thus not permitted to review the length
of such exclusion.
Issue Whether the I.G. had a basis upon which to exclude Petitioner
from participation in the Medicare, Medicaid, and all other federal health
care programs.
Applicable Law and Regulations Section 1128(a)(1) of the Act authorizes the Secretary
of Health and Human Services (Secretary) to exclude from participation
in any federal health care program (as defined in section 1128B(f) of
the Act), any individual convicted of a criminal offense related to the
delivery of an item or service under the Medicaid program. An exclusion under section 1128(a)(1) of the Act must
be for a minimum mandatory period of five years. Act, section 1128(c)(3)(B),
and 42 C.F.R. � 1001.102(a). Pursuant to 42 C.F.R. � 1001.2007, a person excluded under
section 1128(a)(1) may file a request for hearing before an Administrative
Law Judge (ALJ). Section 1128(b) of the Act authorizes the Secretary to exclude individuals from receiving payment for services that would otherwise be reimbursable under Medicare, Medicaid, or other federal health care programs. Findings of Fact and Conclusions
of Law 1. Beginning in January, 1996, Petitioner was employed
as an Information Resource Specialist by the Department of Social Rehabilitation
Services (SRS) area office in Garden City, Kansas. I.G. Ex. 3. 2. During the period beginning in February, 1995 through
January, 7, 1999, Petitioner provided part-time services as a personal
care attendant (PCA) to Jana Slemp in Hugoton Kansas. I.G. Exs. 1, 3. 3. Jana Slemp was a Medicaid recipient receiving Home
and Community Based Services. I.G. Ex. 3. 4. On May 22, 2000, Petitioner was charged, in a one count
Amended Information filed in the District Court of Finney County, Kansas,
with unlawfully and negligently failing to maintain adequate records with
regard to Medicaid services provided to Jana Slemp, between August 20,
1996 and January 7, 1999, in violation of K.S.A. 21-3848, K.S.A. 21-4502(1)(a),
and K.S.A. 21-4503(a). I.G. Exs. 1, 3. 5. Petitioner entered a plea of nolo contendere on May 24, 2000, which was accepted by the District Court of Finney County, Kansas, on that date. I.G. Ex. 2. 6. Petitioner was sentenced on June 27, 2000, to 90 days in jail, suspended, on condition of payment of $928.70 restitution to the Medicaid program, $102.50 in court costs, and $2,171.08 for expenses incurred in the process of investigation. I.G. Ex. 4, at 2, 4. 7. Petitioner's plea of nolo contendere
and the court's acceptance of that plea constitute a conviction within
the meaning of section 1128(i)(3) of the Act. 10. Pursuant to section 1128(a)(1) of the Act, the I.G. is required to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs. 11. The minimum mandatory period of exclusion under section 1128(a)(1) of the Act is five years. Act, section 1128(c)(3)(B). 12. The I.G. properly excluded Petitioner
from participating in Medicare, Medicaid, and all other federal health
care programs for five years.
Discussion Petitioner was a PCA for Medicaid recipients in the State
of Kansas during the period relevant to this case. Pursuant to an investigation
conducted by the Office of the Kansas Attorney General through the Medicaid
Fraud and Abuse Division, it was determined that between August 20, 1996
and January 7, 1999, in Finney County, Kansas, Petitioner unlawfully and
negligently failed to maintain records, that is, time sheets that are
necessary to disclose fully the amount and nature of services for which
claims were submitted or payments were received under the Medicaid program.
I.G. Exs. 1, 3. The Investigator concluded that the amount billed to the
Medicaid program, based upon the time sheets submitted by Petitioner for
those dates, failed to account for services reimbursed in the amount of
$928.70. Id. Based on the above facts, Petitioner was charged in a
one count Amended Information with failing to maintain adequate records
in violation of Kansas law. I.G. Ex. 1. She entered a plea of nolo contendere,
which was accepted by the court. I.G. Ex. 2. In light of that conviction,
the I.G. notified Petitioner of her exclusion from participation in Medicare,
Medicaid, and all federal health care programs for a minimum period of
five years, as required by sections 1128(a)(1) and 1128(c)(3)(B) of the
Act. The issue before me is whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs.(1) Petitioner argues that a basis for exclusion does not
exist because the Medicaid program suffered no loss as a result of her
activities, fraud is not part of the definition of the crime of
which she was convicted, nor is her offense related to the delivery of
an item or service under the Medicaid program. P. Br. at 5, 6. These arguments
find no support in the law or the facts of this case. Section 1128(a)(1) of the Act states that:
Petitioner's initial argument that there is no fraud in
the definition of the crime of which she was convicted is misplaced. In
order to determine whether fraud is an element of the basis for exclusion
we must look to the federal statute and not to the statute under which
Petitioner was convicted. Perusal of the pertinent portion of the statute,
as cited above, clearly indicates that the threshold requirement for exclusion
is a conviction of a criminal offense without reference to whether fraud
is involved. Similarly, it need not be established that there has been
a financial loss to the Medicaid program.(2) The regulatory criteria regarding the five-year mandatory exclusion for convictions related to the delivery of an item or service under Medicare or Medicaid, only require a specified financial loss when the I.G. utilizes that as a factor to lengthen the period of exclusion beyond the minimum statutory mandate. 42 C.F.R. � 1001.101, 101.102. Petitioner's final assertion, that the offense of which
she was convicted was not related to the delivery of an item or service
under the Medicaid program, is also without merit. Petitioner advances
the argument that the State statute that was the basis for her conviction
does not speak to the delivery of an item or service, but rather to the
records which an individual is required to maintain for a period of five
years. Thus, claims Petitioner, the Secretary cannot say that the failure
to maintain adequate records for five years is an offense related to the
delivery of an item or service under the Medicaid program. Petitioner overlooks that maintaining adequate records
for a period of five years is not an element of the crime for which she
was convicted. The critical elements are the unlawful and negligent failure
to maintain records. The Amended Information specifically defines those
elements as keeping "time sheets that are necessary to disclose fully
the amount and nature of services for which a claim was submitted or payments
were received under the [m]edicaid program." The Amended Information is
unambiguous in stating that such unlawful and negligent record keeping
failed to properly account for the services for which a claim under the
Medicaid program was submitted. The federal statute previously cited does
not require that the law under which the excluded individual is convicted
specifically speak in verbatim terms of the delivery of an item or service
under the Medicaid [or Medicare] program. The nexus required by the Act
in the case under consideration here is sufficient because Petitioner
failed to maintain adequate records to account for claims made for services
rendered to a Medicaid beneficiary. In view of the foregoing, I find that Petitioner is an
"individual convicted . . . of a criminal offense related to the delivery
of an item or service under [the Medicaid program]. Act, sections 1128(a)(1),
1128(i)(3). The essential elements for mandatory exclusion are the existence
of a conviction and that the offense be related to the delivery of an
item or service under Title XVIII of the Act or a State health care program.
These elements are present in this case. Pursuant to 42 C.F.R. � 1001.2007, an individual excluded
under this section may file a request for hearing before an ALJ on the
issues of whether:
However, when the I.G. imposes an exclusion under subpart
B of part 1001 of 42 C.F.R. for the mandatory five-year period, the issue
of the length of such exclusion is not considered. 42 C.F.R. � 1001.2007(a)(2).
Congress has established a mandatory exclusion period of five years, minimum.
Aggravating factors for lengthening the period may be considered, but
the five-year term will not be shortened. Thus, the only issue in this case is whether a basis exists
for the exclusion. It is evident that Petitioner's conduct is the type that
Congress sought to prevent and is for the benefit of a protected class
of individuals. It follows then that a person who fails to disclose fully
the amount and nature of services for which a claim is submitted or payments
received under the Medicaid program, is not fit to participate in federal
health care programs. This is consistent with the Secretary's duty to
assure that the requirements that govern the provision of health care,
and the enforcement of those requirements, are adequate to protect the
health, safety, welfare, and rights of beneficiaries and recipients of
federal health care programs. In view of the clear statutory and regulatory language, none of Petitioner's defenses have any merit. The unambiguous language of the Congressional legislation and the regulations promulgated by the Secretary allow no room for a different interpretation.
Conclusion Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from any federal health care program for a period of at least five years because she was convicted of a criminal offense related to the delivery of an item or service under the Medicaid program. Petitioner's five-year exclusion is therefore sustained. |
|
JUDGE | |
Jose A. Anglada Administrative Law Judge |
|
FOOTNOTES | |
1. In her brief, Petitioner states that it was her attorney's understanding from the dialogue at the prehearing conference that it may also be material whether Medicaid sustained a loss in this case. P. Br. at 5. That, no doubt, is a misunderstanding. The issue in this case was set forth at page 2 of the "ORDER AND SCHEDULE FOR FILING BRIEFS AND DOCUMENTARY EVIDENCE" noticed to the parties after the September 21, 2001 conference. Petitioner sought no clarification of that order. As discussed later in this decision, financial loss may be an issue in some situations but it is not an issue here. 2. As the I.G. points out in her brief, although financial loss is not a factor to be considered in connection with a five-year exclusion under section 1128(a)(1) of the Act, the restitution of $928.70 which was ordered by the court is evidence of a financial loss to a government program. I.G. Reply Br. at 4, 5. | |