Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Valerie Baker, |
DATE: March 15, 2002 |
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The
Inspector General
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Docket No.C-00-839
Decision No. CR882 |
DECISION | |
DECISION On September
4, 2001, I partially granted the Inspector General's (I.G.'s) motion for
summary judgment in this matter, thereby sustaining the exclusion of Petitioner
Valerie Baker from Medicare, Medicaid, and all federal health programs
for the mandatory minimum period of five years, pursuant to sections 1128(a)(1)
and 1128(c)(3)(B) of the Social Security Act (Act), 42 U.S.C. �� 1320a-7(a)(1)
and 1320a-7(c)(3)(B). My Decision (Valerie Baker, DAB CR815 (2001))
reserved for later resolution the issue of the reasonableness of the I.G.'s
enlargement of the exclusionary period to 10 years; this unusual procedural
step was based on my then-perceived need to verify the authenticity of
a crucial exhibit, previously admitted to this record as I.G. Ex. 2.
(1) There now remains no material question of the authenticity
or completeness of that exhibit, and I am prepared to rule on the remaining
issue. I grant summary
judgment on the remaining portion of the I.G.'s motion and sustain as
reasonable the enlargement of the exclusionary period to 10 years pursuant
to the terms of 42 C.F.R. � 1001.102(b)(1), (2), and (5). In doing so,
I explicitly adopt as if fully set forth herein each Finding of Fact and
Conclusion of Law announced in my Decision of September 4, 2001, and incorporate
fully herein the analysis and discussion on which I based those Findings
and Conclusions.
The issue I
address in this decision is whether aggravating factors are present which
operate to make the I.G.'s enlargement of Petitioner's exclusion to 10
years reasonable. CONTROLLING
STATUTES AND REGULATIONS Section 1128(a)(1)
of the Act requires the exclusion from participation in Medicare, Medicaid,
and all other federal health care programs of any individual or entity
convicted of a criminal offense related to the delivery of an item or
service under Title XVIII of the Act (the Medicare program) or under any
State health care program. This exclusion is mandatory, and must be imposed
for a minimum of five years. Act, section 1128(c)(3)(B). My Decision
of September 4, 2001 determined that Petitioner had been convicted of
a criminal offense within the terms of section 1128(a)(1) and was subject
to the five-year mandatory minimum period of exclusion established by
section 1128(c)(3)(B). The minimum
mandatory five-year exclusion is subject to enlargement: 42 C.F.R.� 1001.102
allows the I.G. to extend the five-year period if certain aggravating
factors are demonstrated. If the I.G. proposes to rely on any of the specified
aggravating factors to seek an enlargement of the exclusionary period,
then the subject of the proposed exclusion is permitted to assert the
existence of certain mitigating factors and thereby seek to limit the
exclusion to the five-year mandatory minimum. Those aggravating and mitigating
factors are set out in detail at 42 C.F.R. � 1001.102(b)(1)-(9) and (c)(1)-(3). The aggravating factors relied on by the I.G. in this care are:
The I.G.'s invoking of these three aggravating factors permits Petitioner to respond by asserting the presence of any or all of the specified mitigating factors set out at 42 C.F.R. � 1001.102(c)(1)-(3). They appear here in relevant part:
These factors
are set out with specificity, and they are the only factors I may consider
in mitigation. None of them has been cited by Petitioner. Instead, Petitioner
rests her claim to mitigation in a general assertion that she received
little or no direct financial gain from the scheme, and that a 10-year
exclusion is unduly harsh. Although her arguments are not tightly structured,
they can be best understood in these terms (P. Brief, at 1)
(2):
and in this language (P. Reply Brief, at 2):
FINDINGS
OF FACT AND CONCLUSIONS OF LAW I find and
conclude as follows: 1. Petitioner,
Valerie Baker, was convicted of a criminal offense relating to the delivery
of an item or service under Title XVIII of the Act or under a State health
program, within the meaning of section 1128(a)(1) of the Act, 42 U.S.C.
� 1320a-7(a)(1). I.G. Ex. 2; see also Baker, DAB CR815. 2. By reason
of her conviction, Petitioner was subject to, and the I.G. was authorized
to impose, a period of exclusion from the Medicare, Medicaid, and all
other federal health care programs of not less than five years. Act, section
1128(c)(3)(B); 42 U.S.C. � 1320a-7(c)(3)(B); see also Baker, DAB
CR815. 3. As part
of her sentence in the criminal proceedings, Petitioner was ordered to
pay restitution in the sum of $120,000, which sum represents the loss
to the Medicaid program directly caused by Petitioner's criminal conduct.
I.G. Exs. 2, 3. 4. Because
this loss to the Medicaid program was in excess of $1,500, the aggravating
factor set out in 42 C.F.R. � 1001.102(b)(1) is present. 5. The term
of the conspiracy to which Petitioner pleaded guilty was from approximately
January 1989 until approximately June 1998. I.G. Exs.2-4. 6. Because
the conspiracy to which Petitioner pleaded guilty was committed over a
period of one year or more, the aggravating factor set out in 42 C.F.R.
� 1001.102(b)(2) is present. 7. As part
of her sentence in the criminal proceedings, Petitioner was ordered to
serve a six-month term of home confinement, which sentence is defined
as a sentence of "incarceration" by 42 C.F.R. � 1001.2. I.G. Ex. 2. 8. Because
Petitioner was sentenced to a term of incarceration, the aggravating factor
set out in 42 C.F.R. � 1001.102(b)(5) is present. 9. None of
the mitigating factors set out in 42 C.F.R. � 1001.102(c)(1)-(3) is present. 10. The I.G.'s exclusion of Petitioner for a period of 10 years is supported by fact and law and is reasonable as a matter of law. I.G. Exs. 1-4; Findings and Conclusions 1-9, supra; Baker, DAB CR815. 11. There are
no remaining disputed issues of material fact and summary judgment is
therefore appropriate in this matter. DISCUSSION As I pointed
out in my Decision of September 4, 2001, the fact of Petitioner's conviction
is now beyond debate or challenge, and the I.G.'s five-year exclusion
of Petitioner based on that conviction has been sustained. Thus, it remains
here only to determine whether the undisputed facts surrounding that conviction
reflect the aggravating factors invoked by the I.G. Without exception,
the official court documents reflecting Petitioner's conviction do reflect
those factors. Petitioner
was convicted upon her guilty plea, and the Plea Agreement by which the
guilty plea was negotiated, offered, and accepted is before me (I.G. Ex.
3). On its face, it reveals that Petitioner was represented by counsel
when she signed the document on March 17, 1999 (I.G. Ex. 3, at 5), and
that the sentencing guidelines calculation set the "Amount of Loss" at
"Over $120,000" with the added specific language "[t]he defendant agrees
to this Guideline calculation" (I.G. Ex. 3, at 2, � 2). This explicit
assessment of the amount of loss is repeated in the Judgment and Sentence
entered on February 14, 2000 (I.G. Ex. 2), which, inter alia,
ordered that Petitioner pay restitution in the same amount to the Director
of Fiscal Operations, Home Care Services, New York City Human Resources
Administration (I.G. Ex. 2, at 3). The I.G.'s proof of this first aggravating
factor goes well beyond the prima facie reliance on the amount
of restitution as a measure of the loss to a protected program approved
in Thomas P. Whitfield, D.P.M.,
DAB CR539 (1998); it establishes the amount at $120,000 without contradiction
of any sort whatsoever, and establishes it at a level well in excess of
the $1,500 threshold of material dispute. The I.G. has established the
presence of the aggravating factor defined at 42 C.F.R. � 1001.102(b)(1). The same Plea
Agreement (I.G. Ex. 3) establishes the link to the criminal conspiracy
charged against and admitted by Petitioner: the Agreement requires Petitioner
to plead guilty to "count one of the above-captioned indictment, charging
violation of 18 U.S.C. � 286" (I.G. Ex 3, at1, � 1). That indictment,
U.S. v. Valerie Baker et al., Cr. No.99-877 (E.D.N.Y.) is before
me (I.G. Ex. 4), and its first count (I.G. Ex. 4, at 1, 2) charges that
"[i]n or about and between January 1989 and June 1998, both dates being
approximate and inclusive . . . VALERIE BAKER . . . together with others,
did knowingly and intentionally enter into an agreement, combination and
conspiracy to defraud . . . by obtaining and aiding to obtain the payment
of false, fictitious and fraudulent claims for Medicaid reimbursement.
(Title 18, U.S.C. �� 286 and 3551 et
seq.)." The judgment and sentence entered on February 14, 2000
(I.G. Ex. 2, at 1) reflects on its first page an entry for "Date Offense
Concluded" of "01/89 & 06/98," which precisely coincides with the
dates charged as the term of the conspiracy in the indictment. There is
no evidence or argument before me that might suggest a flaw in these dates
or in their application to the present discussion, or that might warrant
treating Petitioner's conviction as anything other than a conviction for
conspiring, over a term of nine and one-half years, to defraud the United
States. The I.G. has established the presence of the aggravating factor
defined at 42 C.F.R. � 1001.102(b)(2). Petitioner was placed on probation, and that term of probation may well be nearly complete, but as part of that probation she was also required to serve a period of modified home confinement. Again, the Judgment and Sentence is plain (I.G. Ex. 2, at 2): "[t]he defendant Valerie Baker shall serve (6) Six Months Home Confinement, which shall be under direct Supervision of the Probation Department, while on Home Confinement the defendant may continue to go to work, and may leave for medical emergency and to continue to practice her religion, and may visit her attorney at any time." Such restrictions and requirements may not be as onerous as a commitment to the custody of the Attorney General for confinement in a prison, but any term of home confinement is defined by regulation as "incarceration" at 42 C.F.R. � 1001.2:
There is no
evidence to suggest that the term of home detention imposed in the judgment
and sentence was modified, eliminated, amended, or set aside before it
was completed. Neither does Petitioner here assert that it was not, in
fact, imposed and served. The I.G. has established the presence of the
aggravating factor defined at 42 C.F.R. � 1001.102(b)(5). It has been
held that in the context of exclusions and 42 C.F.R. � 1001.102, "Petitioner
had the burden of proving any mitigating factor by a preponderance of
the evidence, since the mitigating factor is in the nature of an affirmative
defense." Barry D. Garfinkel, DAB No. 1572 (1996); see also
Andrew H. Lewis, DAB CR625 (1999); James H. Holmes,
DAB CR270 (1993). And it is well-settled in this forum that evidence of
factors not specifically enumerated by regulation cannot be considered
in mitigation of an exclusion. Narendra M. Patel, M.D., DAB CR631
(1999). Thus, Petitioner's
assertions that she did not profit personally, that she intended the scheme
to have a socially beneficial goal over the long term, and that she intended
no harm to government programs, are of no help to her in this discussion.
Her assertions that she is raising two children and unemployed while subject
to exclusion, and that her term of probation is nearly complete, are similarly
outside my purview. I simply cannot bring them within the ambit of the
regulation, and must for that reason disregard them. Her guilty plea and
her conviction on that plea foreclose entirely her present denial of criminal
intent to defraud, and she cannot now be heard to say that the term of
the conspiracy was less than one year. Though I intend
no relaxation whatsoever of the burden imposed on Petitioner by Garfinkel,
supra, I have reviewed the record for any facts that might colorably
entitle Petitioner to claim any of the three mitigating factors. That
review has disclosed nothing of potential aid to Petitioner. First, since
the conviction was on a felony charge, 42 C.F.R. � 1001.102(c)(1) is explicitly
unavailable. Next, because there is no evidence in the court records before
me of a "mental, emotional or physical condition" that could be argued
to have reduced Petitioner's culpability, the terms of 42 C.F.R. � 1001.102(c)(2)
cannot be invoked. And third, because the record is utterly silent about
Petitioner's "cooperation with Federal or State officials" in detecting
or preventing program abuse, 42 C.F.R. � 1001.102(c)(3) cannot provide
Petitioner with a claim in mitigation. Petitioner has not shown, and I
have not discovered, any basis on which she may assert any of the three
mitigating factors set out in the regulation, and I must find that she
has established the existence of none of them.
CONCLUSION For the reasons set forth above, I grant summary judgment in favor of the I.G. on the issues remaining before me in this case, and thereby sustain as reasonable the I.G.'s exclusion of Petitioner Valerie Baker from participation in Medicare, Medicaid, and all other federal health care programs for a period of 10 years, pursuant to the terms of section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1). |
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JUDGE | |
Richard S. Smith Administrative Law Judge
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FOOTNOTES | |
1. On July , 2001, the I.G. resubmitted a certified copy of I.G. Ex. 2. The certified copy of I.G. Ex. 2 replaces the previous exhibit, which was not certified. On February 1, 2002, I gave the parties the opportunity to simultaneously respond to this document by February 20, 2002. The I.G. submitted not a response. Petitioner did not submit a response. 2. I am using the same record that was before me when I made my initial Decision. Baker, DAB CR815 (2001). | |