SUBJECT: Thomas D. Harris,

Petitioner,

Inspector General

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

The Inspector General (I.G.) appealed part of a January 8, 2003 decision by Administrative Law Judge (ALJ) Keith W. Sickendick, Thomas D. Harris, DAB CR992 (2003) (ALJ Decision). There, the ALJ granted summary judgment for the I.G. and sustained the I.G.'s basic determination that Thomas D. Harris (Petitioner) should be excluded from participation in Medicare, Medicaid and all other federal health care programs (hereafter, Medicaid) pursuant to section 1128(a)(1) of the Social Security Act (Act). However, the ALJ also determined that the I.G. had proven only one of the two aggravating factors upon which the I.G. had based the proposed 15-year exclusion of Petitioner. Thus, the ALJ modified the length of Petitioner's exclusion to ten years. In so holding, the ALJ determined that the evidence did not support the I.G.'s contention that the violative acts committed by Petitioner were committed over a period of more than one year.

The I.G. appealed, asserting that the ALJ's conclusions of law on the presence of a second aggravating factor and the appropriate length of Petitioner's exclusion were not supported by substantial evidence in the record and were erroneous as a matter of law.

For the reasons discussed below, we reverse the ALJ's holding concerning the duration of the violative acts committed by Petitioner, and affirm the I.G.'s imposition of a 15-year exclusion.

The record for our decision includes the record before the ALJ and the parties' submissions on appeal.

Applicable Law

Section 1128(a)(1) of the Act requires that any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Medicaid must be excluded from participation in Medicaid. Section 1128(c)(3)(B) of the Act further provides that this exclusion is mandatory and must be for a minimum period of five years. If specified aggravating factors are present, the period of exclusion may be lengthened. 42 C.F.R. �1001.102. When aggravating factors are present so as to warrant an exclusion of over five years, certain specific mitigating factors may be considered.

Among the factors which may be used as a basis for extending the mandatory period of exclusion are that the acts (1) leading to the conviction "caused, or were intended to cause, a financial loss to a government program or to one or more entities of $5,000 or more," and (2) "that resulted in the conviction, or similar acts, were committed over a period of one year or more." 42 C.F.R. �1001.102(b)(1) and (2).

Factual Background

The following summary of the relevant undisputed facts is intended to provide a general framework for understanding the decision and is not intended to be a substitute for the ALJ's findings.

Petitioner owned and operated Area Life Care EMS, an ambulance service in Oklahoma. On September 21, 2001, Petitioner pled guilty to felony Medicaid fraud, misdemeanor Medicaid fraud, and conspiracy to obtain money by false pretense. I.G. Ex. 3. The Plea of Guilty and Summary of Facts signed by Petitioner stated that he committed the acts charged in the Information, which included, as part of Count 1, knowingly and willfully submitting false claims to Oklahoma's Medicaid program over the period January 4, 1998 through January 22, 2000, a period of over two years. Likewise, he admitted the acts charged in Count 2, that he had submitted false claims over the period January 1, 1999 through February 1, 2000, and in count 7 that he had conspired to obtain money by false pretense from Medicare and Medicaid from January 4, 1998 through September 1, 2000. Id.

In the portion of his guilty plea that asks petitioner to "state the factual basis for your plea(s), " Petitioner wrote by hand that: "On or about Sept. 98 thru May 99 I knowingly made false claims to medicaid and medicare acting jointly with Roger Wadley. These claims were an aggregate amt more than 2500.00 and sometimes less than 2500.00." Id.

As a result of his plea, Petitioner was sentenced to pay a fine of $10,000, investigative and litigation fees of $5,000 and restitution of $141,607.09. The court deferred Petitioner's five-year prison sentence.

By letter of May 31, 2002, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid and all other Federal health programs for a period of 15 years.

The ALJ Decision

The ALJ rejected Petitioner's contention that the crimes to which he pled guilty did not subject him to mandatory exclusion. The ALJ further found that the I.G. had proven that Petitioner's crimes resulted in financial loss to the government in excess of $5,000. However, the ALJ found that the I.G. failed to prove that Petitioner's criminal misconduct continued for a period of over one year. Accordingly, the ALJ found that an appropriate exclusion period for Petitioner was 10 years, rather than the 15 years proposed by the I.G.

In reaching his decision, the ALJ made eight Findings of Fact and ten Conclusions of Law. The I.G. appealed the ALJ Decision, taking exception to Finding of Fact 7 and Conclusions of Law 7, 8, and 10 ⁽¹⁾. The challenged Finding of Fact states:

7. The preponderance of the evidence shows that Petition pled guilty to felony and misdemeanor Medicaid fraud during the period September 1998 through May 1999, a period of less than one year. I.G. Ex. 3, at 4.

The challenged Conclusions of Law state:

7. Only one aggravating factor has been established by the I.G. by a preponderance of the evidence; the acts for which Petitioner was convicted resulted in financial loss to a government program of $5,000 or more.

8. The I.G. did not establish by a preponderance of the evidence that the acts for which Petitioner was convicted occurred over a period of one year or more.

10. A ten-year exclusion (five-year mandatory and a five-year extension) is within a reasonable range and is not unreasonable.

With respect to the challenged Finding and Conclusions, the ALJ held, with virtually no discussion, that Petitioner's handwritten statement on the factual basis of his plea "establishes that Petitioner pled guilty to misconduct occurring only from September 1998 through May 1999, a period of less than one year." ALJ Decision at 9.

Our standard of review on a disputed conclusion of law is whether the ALJ decision is erroneous. Our standard of review on a disputed finding of fact is whether the ALJ decision is supported by substantial evidence on the record as a whole. 42 C.F.R. � 1005.21(h).

As noted above, the I.G.'s appeal is limited to specific findings of fact and conclusions of law. Accordingly, we affirm and adopt the ALJ's Findings of Fact 1-6 and 8 as well as Conclusions of Law 1-6 and 9 without further comment.

On appeal, the I.G. excepted to the ALJ's reduction of the exclusion period from 15 to 10 years based on the I.G.'s failure to prove, by a preponderance of the evidence, that the acts resulting in Petitioner's conviction were committed over a period of more than one year. The I.G. argued that the ALJ failed to appropriately review the evidence before determining that this aggravating factor was not established. The I.G. argued, in essence, that Petitioner's brief handwritten statement as to the facts supporting his plea did not outweigh the fact that the evidence otherwise overwhelmingly established that he acted unlawfully for a period of well over a year. We agree with the I.G. that she proved the existence of this aggravating factor.

It appears from his decision that the ALJ felt that Petitioner's handwritten response to the request for facts supporting his guilty plea, in which he noted the duration of some of his unlawful actions as a period of less than a year, superseded his unequivocal and unambiguous pleas of guilty to charges that by their own terms established a duration of over one year on each of three different counts. The I.G. argued that the ALJ should have considered the entire Plea of Guilty and Summary of Facts, as well as examining it in conjunction with other exhibits, particularly the Information (I.G. Ex. 2), to which the Plea makes reference.

The I.G. Exhibit 3, a form document, is Petitioner's "Plea of Guilty and Summary of Facts" in State Court. Petitioner wrote "Guilty" in the area designated as his plea to each of the counts alleged in the Plea document, and circled "YES" in answer to the question as to whether he had committed the acts alleged in the Information. He thus pled guilty to each of the three counts that were pending. As described in the Information, Count 1, for felony Medicaid fraud, encompassed a time period from January 4, 1998 to January 22, 2000, a period well in excess of the year necessary to trigger the applicability of this aggravating factor. Likewise, Counts 2 and 3 each alleged acts that had taken place for a period of over one year, and Petitioner admitted those acts as well. In light of these admissions by Petitioner, we find it difficult to understand, particularly in the absence of any reasoning presented by either the ALJ or Petitioner, how Petitioner's brief statement as to the facts in support of his guilty plea somehow cancels out the specific charges to which he pled guilty.

Even if we were to give much weight to the contents of his "factual basis" there is nothing in Petitioner's short statement that conflicts with his pleas of guilty to Counts 1, 2 and 7 of the Information. Petitioner hardly addresses any aspects of the charges to which he pled in this statement, and to hold that because he admitted committing some of these acts during a period of less than a year somehow means he is denying commission of all of these acts for a period of more than a year requires an extremely strained reading of Exhibits 2 and 3, given the specificity of the time periods alleged in the counts to which Petitioner expressly pled guilty.

We see no point in remanding this case to the ALJ. Given our holding that the I.G. did in fact establish the existence of a second aggravating factor based on the duration of the acts committed by Petitioner, the only question remaining is whether a 15-year exclusion is justified by the presence of both alleged aggravating factors. The restitution amount of $141,607.09 establishes that the amount of loss from the act of which Petitioner was convicted or similar acts was substantially more that the $1,500 threshold. Moreover, the acts alleged in Count 1 took place for more than a two-year period, and the acts in Count 3 took place over more than a two-and-a-half year period. Thus, we conclude that the period of exclusion proposed by the I.G. is within a reasonable range. Accordingly, we sustain the imposition of a 15-year exclusion period against Petitioner.

Conclusion

Based on the preceding analysis, we affirm and adopt the ALJ's Findings of Fact 1-6 and 8 as well as Conclusions of Law 1-6 and 9.

We modify the challenged Finding of Fact and Conclusions of Law as follows:

Finding of Fact 7:

The undisputed evidence shows that Petitioner pled guilty to various acts of felony and misdemeanor Medicaid fraud during the period January 1, 1999 through September 1, 2000, a period of over two years.

Conclusion of Law 7:

The I.G. has established two aggravating factors by undisputed evidence-the acts for which Petitioner was convicted resulted in financial loss to a government program of $5,000 or more, and occurred over a period of one year or more.

Conclusion of Law 8 is deleted.

Conclusion of Law 10:

A 15-year exclusion (five years mandatory and a ten year extension) is within a reasonable range and is not unreasonable.

Judith A. Ballard

Cecilia Sparks Ford

Marc R. Hillson
Presiding Board Member

1. Petitioner did not appeal.