Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
In the Case of:
Napoleon S. Maminta, M.D.,
Petitioner,
- v. -
The Inspector General.
DATE: March 13, 1990
Appellate Docket No.89-197 Decision No. 1135
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION
Dr. Napoleon S. Maminta (Petitioner) requested review by the Appellate
Panel of a July 18, 1989 decision by Administrative Law Judge Steven
Kessel (ALJ) to affirm the determination of the Inspector General (I.G.)
to exclude Petitioner from participation in the Medicare program for 10
years and direct that he be excluded from participating in state health
care programs (including Medicaid) for the same length of time. 1/ The
ALJ found that Petitioner was subject to a mandatory exclusion under
section 1128(a)(1) of the Social Security Act, 42 U.S.C. 1320a-7(a)(1),
because he was convicted of a criminal offense related to the delivery
of an item or service under the Medicare program (Title XVIII of the
Act). The only issue ultimately contested before the ALJ was whether
Petitioner's conviction under 18 U.S.C. 1702 was within the scope of
section 1128(a)(1); it is this issue we also consider here. The dispute
centers on whether Petitioner's criminal offense was "related to the
delivery of an item or service" under Medicare or Medicaid.
For the reasons we discuss below, we affirm the ALJ's decision.
Findings of Fact and Conclusions of Law
As we explain further below, we adopt the ALJ's findings of fact and
conclusions of law (FFCL) as written but modify FFCL No. 6 to add
subparts A and B.
1. Petitioner is a doctor of medicine.
2. Petitioner received an envelope in February, 1987, addressed to
a laboratory he operated and sent by a Medicare carrier, which contained
documents, including a Medicare reimbursement check.
3. The reimbursement check, in the amount of $8,495.92, was
payable to a party other than Petitioner or an entity he operated, and
was sent to him by mistake.
4. Petitioner endorsed the check with the name of the payee and
his own name, and deposited the proceeds in his own bank account.
5. On May 20, 1988 Petitioner pleaded guilty to a charge of taking
a check from an authorized depository for mail before it had been
delivered to the addressee, in violation of 18 U.S.C. 1702. His
sentence included three years' probation.
6.A. Petitioner's conduct was related to the Medicare program
since the check which Petitioner diverted was a Medicare check provided
as payment for the delivery of items or services under the program.
6.B. 42 U.S.C. 1320a-7(a)(1) authorizes a mandatory exclusion
regardless of whether the item or service under Medicare was delivered
by the convicted individual or by another individual or entity.
6.C. The offense to which Petitioner pleaded guilty is a criminal
offense related to the delivery of an item or service under the Medicare
program.
7. Petitioner's guilty plea is a conviction as defined by 42
U.S.C. 1320a-7(i).
8. The minimum mandatory exclusion period is five years for an
individual who has been excluded based on conviction of a criminal
offense related to the delivery of an item or service under Medicare.
9. The Secretary delegated to the I.G. the duty to exclude from
participation in Medicare, and to direct the exclusion from
participation in State health care programs, persons whose exclusion is
required or permitted under 42 U.S.C. 1320a-7.
10. The I.G. excluded Petitioner from participation in the
Medicare program, and directed that Petitioner be excluded from
participation in State health care programs, for ten years.
11. The law requires that Petitioner be excluded from
participation in Medicare and State health care programs for at least
five years.
See ALJ's Decision, pp. 3-5 (citations to record omitted).
Procedural Background
On October 26, 1988, the I.G. sent notice to Petitioner, advising him
that he was being excluded from Medicare and state health care programs
for a period of 10 years. Petitioner was advised that his exclusions
were due to his conviction of a criminal offense related to the delivery
of an item or service under the Medicare program.
Petitioner timely requested a hearing before an ALJ on the exclusion
determination. Petitioner initially contested both (1) whether the
criminal conviction was "related to the delivery of an item or service"
under the Medicare program and (2) whether the length of the exclusions
was reasonable. On May 5, 1989, the ALJ ruled in favor of the I.G. on a
motion for summary disposition of the first issue and set a date for a
hearing on the second issue. In ruling on the first issue, the ALJ held
that, because the conviction involved diversion of a Medicare check
reimbursing a Medicare provider for the delivery of covered items or
services, the conviction was related to the delivery of an item or
service by that provider and thus satisfied the mandatory exclusion
criterion of section 1128(a)(1). Petitioner subsequently requested a
dismissal of the hearing request on the second issue. 2/ As a result,
the hearing was canceled and the ALJ rendered his final decision
entering a summary decision adopting the ruling on the first issue and
dismissing the hearing request on the second issue. The ALJ's decision
thus affirmed the 10-year exclusions. Petitioner subsequently requested
review of the ALJ's decision before an Appellate Panel of this Board
pursuant to 42 C.F.R. 1001.128(c), as amended at 54 Fed. Reg. 9995
(March 9, 1989). 3/
Relevant Statutory Provision
This appeal concerns the meaning of the mandatory exclusion authority of
section 1128(a)(1) of the Act. That provision is as follows--
(a) Mandatory Exclusion.--The Secretary shall exclude the following
individuals and entities from participation . . .
(1) Conviction of program related-crimes. Any individual or
entity that has been convicted of a criminal offense related
to the delivery of an item or service under title XVIII or
under any State health care program.
Discussion
Petitioner's exceptions
On appeal, Petitioner asserted that the issue is "whether the mandatory
exclusion provision applies to a 'conviction for converting Medicare
reimbursement payable to a third party for items or services delivered
by that party.'" Petitioner's Appeal Brief, p. 7, citing ALJ's May 5,
1989 Ruling, p. 4.
Petitioner argued that the ALJ had clearly erred in finding that his
conviction was "related to the delivery of an item or service" under
the
Medicare program. In this regard, Petitioner took specific exception to
three of the ALJ's FFCL, FFCL Nos. 6, 8, and 11. The findings with
which Petitioner disagreed are as follows:
6. The offense to which Petitioner pleaded guilty is a criminal
offense related to the delivery of an item or service under the
Medicare program.
8. The minimum mandatory exclusion period is five years for an
individual who has been excluded based on conviction of a criminal
offense related to the delivery of an item or service under
Medicare.
11. The law requires that Petitioner be excluded from
participation in Medicare and State health care programs for at
least five years.
ALJ's Decision, pp. 4-5 (citations to record omitted).
Petitioner's issues on appeal related primarily to the correctness of
FFCL No. 6. Petitioner asserted that if FFCL No. 6 was erroneous, then
FFCL Nos. 8 and 11 were contrary to law. Petitioner's Appeal Brief, p.
7.
Petitioner asserted that the ALJ's determination that "[t]he meaning of
the current law is plain" was erroneous. ALJ's May 5, 1989 Ruling, p.
5. Petitioner argued that the plain meaning rule did not apply since
the phrase "the delivery of an item or service . . . does not clearly
and unequivocally mean the delivery of an item or service by any
individual or entity." Petitioner's Appeal Brief, p. 14. Petitioner
contended that the phrase "related to the delivery of an item or
service" was properly limited to situations in which the excluded
party's own participation in the programs was an integral part of the
offense itself, such as in cases where the excluded party had actually
submitted false or fraudulent claims under a covered program.
Petitioner asserted that application of the mandatory exclusion
provision here was based on an interpretation of the law that conflicted
with the legislative history and did not comport with the other
provisions of the exclusion statute. Petitioner asserted that the ALJ's
decision was, therefore, erroneous as a matter of law.
Summary of the Appellate Panel's review
As we explain below, we affirm the ALJ's conclusion as to the plain
meaning of the language of the statute. Furthermore, contrary to
Petitioner's arguments, we conclude that application of the mandatory
exclusion here is supported by the legislative history and the exclusion
statute read as a whole. Accordingly, we reject Petitioner's attempt
to read into the statute a requirement which is plainly not there--that
the conviction must be related to the convicted party's own delivery of
a Medicare item or service.
In this decision, we adopt the ALJ's FFCL as written, but we have
modified FFCL No. 6 to add subparts A and B in order to make clear the
reasoning underlying our conclusion on appeal. Such a change to FFCL
No. 6 is necessary to highlight why the statutory standard in section
1128(a)(1) was properly applied here. Moreover, the ALJ's analysis of
whether Petitioner was convicted of an offense related to the delivery
of an item or service under the Medicare Program stated, in part--
The reimbursement check unlawfully taken by Petitioner was for
items or services rendered by another party under the Medicare
program. But for that party's participation in the program, no
reimbursement would have issued and no unlawful conversion would
have been possible. Petitioner's offense relates to the third
party's delivery of an item or service under the Medicare program,
satisfying the mandatory exclusion criteria of section (a)(1).
ALJ's May 5, 1989 Ruling, pp. 5 and 6. We modified FFCL No. 6 to
expressly state the significance here of both the Petitioner's diversion
of a Medicare check and the delivery by another individual or entity of
the item or service for which the check was issued. Thus, FFCL No. 6 as
modified more precisely reflects the ALJ's analysis of the issue
presented here.
Accordingly, based on our analysis below, we affirm the ALJ's decision
that a mandatory exclusion was properly imposed here. 4/
The plain language of the statute
In the case below, the ALJ relied on the plain language of section
1128(a)(1) to find that a mandatory exclusion could be based on a
conviction for an offense which did not directly involve the convicted
individual's own delivery of an item or service in either Medicare or a
state health care program. ALJ's May 5, 1989 Ruling. The ALJ found that
the use of the neutral article "the" in the phrase "related to
the
delivery of an item or service" includes in the meaning the delivery of
an item or service by any individual or entity, and concluded that a
mandatory exclusion is not limited to convictions related to the
convicted individual's own delivery of an item or service.
In this appeal, Petitioner argued that use of the neutral article "the"
represented congressional silence on the issue of whose delivery of an
item or service to which the conviction must relate. Petitioner also
argued that the "logical interpretation of the phrase" was that the
conviction must be related to the delivery of an item or service by the
convicted individual. Petitioner asserted that the language must be
viewed in the context of the title to the provision, "[c]onviction of
program-related crimes." Petitioner contended that this language
implies that the criminal offense itself must be related to
program-related conduct by the convicted individual.
We see no basis to read into the statute, as Petitioner urges, a
limitation not present in the plain language. When the provision in
question, section 1128(a)(1), is read as a whole, Petitioner's conduct
is covered by its literal language. Petitioner's efforts to introduce
an ambiguity into this language are unpersuasive. Although Petitioner
attempted to find ambiguity by contrasting the text of the statute with
the title of the section, the phrase "program-related crimes" in the
title does not mean that Petitioner had to deliver or claim to have
delivered the services that the reimbursement check covered. It is more
consistent with the statutory language to read the title phrase
"program-related" to include the circumstances here even though the
offense itself did not involve the excluded individual's or entity's own
delivery or purported delivery of an item or service. 5/
The statutory language itself belies Petitioner's assertion that
Congress was silent on the issue of whether an exclusion needed to be
based on the excluded individual's own actions in providing items or
services under the program. Congress indeed "spoke," by providing
for
the exclusion of "any individual or entity" with no provision that
the
offense pertain to that individual's "delivery of an item or service."
The breadth of the current statutory provision indicates that the only
limitation on the "criminal offense" is a relationship to delivery
of an
item or service under the referenced programs. Here, that relationship
is established by Petitioner's action of converting a Medicare
reimbursement check intended for another entity as reimbursement of
items of services provided under the program. As we discuss below, the
current statute replaced more narrow language and has a plainly broader
meaning. Moreover, our review of the legislative history also leads us
to conclude that Congress intended this provision to be applied broadly.
When the language of a statute is clear and unambiguous, absent
extraordinary circumstances, there is no basis to alter the plain
meaning of the statute. Garcia v. United States, 469 U.S. 70, 75
(1984), rehearing denied, 469 U.S. 1230 (1985). Accordingly, we
conclude that, under the plain language of section 1128(a)(1), the ALJ
correctly found that mandatory exclusions are not limited to individuals
convicted of a criminal offense involving their own delivery of an item
or service in the covered programs. Neither the language itself, nor
the context, support Petitioner's contention that such a limitation
would be a "logical interpretation of the [statutory] phrase."
Indeed, the only logical reading of the statutory language includes
circumstances such as those here where a covered program is a victim of
the crime. Moreover, we conclude that it is unreasonable to read this
provision not to cover Petitioner. Petitioner held himself out as
entitled to Medicare funds by endorsing and cashing a check intended to
reimburse a provider for actual items or services provided.
Consequently, there is a strong analogy between the circumstances here
and the cases involving false or fraudulent billing by a provider, which
Petitioner acknowledged were within the scope of the mandatory exclusion
provision. 6/
The legislative history
Petitioner argued on appeal that consideration of the legislative
history would demonstrate that the ALJ's decision was erroneous.
Petitioner relied on a comparison of the present statutory language with
the language prior to amendment in 1987, and on the congressional
reports issued when that language was amended. Prior to 1987, section
1128(a) provided for a mandatory exclusion when--
a physician or other individual has been convicted . . . of a
criminal offense related to such individual's participation in the
delivery of medical care or services under title XVIII, XIX, or XX
. . . .
(Emphasis added.) Petitioner argued that, in amending this section in
1987 and omitting the phrase "such individual's participation in,"
Congress did not intend to broaden the grounds for a mandatory
exclusion. Petitioner argued that, under the prior language, it was
clear that the criminal offense had to be directly related to the
convicted individual's own participation in the covered programs. Thus,
Petitioner argued, the current statutory language should be read to
apply only in circumstances when the criminal offense directly involved
the convicted individual's own actions in delivering medical care or
services.
Petitioner's argument rests on two faulty propositions, which we
summarize here and explain more fully below. First, Petitioner asserts
that Congress intended no substantive change to the mandatory exclusion
provision by its 1987 amendment, which omitted the phrase "to such
individual's participation in." In light of the general intent
expressed in the 1987 legislative history to broaden the scope of
available sanctions and the comprehensive changes actually made, we find
that this proposition is unfounded. Second, Petitioner's argument rests
on the further proposition that, if the old and new language are viewed
as substantially similar, the earlier version should be viewed as the
best expression of congressional intent. In fact, we find that the
legislative description of the 1987 amendment suggests that the new
language clarified what Congress had originally intended. Since
Petitioner's argument rests on these two flawed propositions, we reject
the argument and conclude that the legislative history does not provide
a basis for concluding that the current language must be read to contain
a restriction not present in the plain language.
A. The legislative history does not establish that Congress
unintentionally omitted the phrase "such individual's participation
in" from the amended statute.
The legislative history of the Medicare and Medicaid Patient and Program
Protection Act of 1987, Public Law 100-93, shows that Congress primarily
focused on expansion of the exclusion authority to include permissive
exclusions under certain circumstances. S. Rep. No. 109, 100th Cong.,
1st Sess. 1-5 (1987), reprinted in 1987 U.S. Code Cong. & Admin. News
682-86. But the legislative history also shows that Congress intended to
strengthen both mandatory and permissive authorities. Id. The entire
mandatory exclusion authority was substantively changed and strengthened
through the addition of section 1128(a)(2), the addition of a minimum
exclusion period, and the strengthening of provisions to facilitate
related state sanction actions.
The legislative history contains no mention of the specific change
eliminating the phrase "such individual's participation in." However,
the nature of the language changes made in the 1987 amendment shows that
Congress purposely reworded the provision and in so doing clarified its
scope. The 1987 amendment reached the heart of the mandatory exclusion
requirement. The changes to this provision cannot be called mere
technical corrections; words central to the standard for applying the
mandatory exclusion were changed. The changed language is sufficiently
different from the prior language that it does not appear to be merely
an "unintentional rephrasing of the language," as Petitioner argued
in
his reply brief at page four. Consequently, we conclude that Petitioner
is wrong that the omission of the phrase in question had no significance
with regard to the meaning of the provision.
Indeed, Petitioner did not contest that several of the language changes
made in the 1987 amendment, such as the change from "a physician or
other individual" to "any individual or entity," expanded the
coverage
of the section. The current language, as we discussed above, is by its
terms broader than Petitioner here argued. Overall, it is certainly
broader than the former language. See Jack W. Greene, DAB App. 1078, p.
7 (1989).
Another indication that Congress intended the new language to be
interpreted independent of the old language is that the 1987 amendment
was not really a "revision" to the prior language. The 1987 amendment
substituted an entirely new section 1128 into the Act, rather than
merely adjusting the prior language. Although this new provision
incorporated some elements of the prior language, the replacement of the
section as a whole indicated Congress' recognition that the prior
language was not accomplishing what had been intended. See United States
v. Guthrie, 387 F.2d 569 (4th Cir. 1967), cert. denied, 392 U.S. 927
(1968); Sutherland Stat. Const. section 22.30 (4th ed.) 1985.
The Senate committee report on the 1987 amendment clearly shows that
Congress felt that the prior provision had not been sufficient to
protect program integrity, and demonstrates that Congress intended to
eliminate barriers to both mandatory and permissive exclusions. S. Rep.
No. 109, supra, at 1-4. Moreover, in explaining the provisions of the
bill, the Senate report does not refer to its amended section 1128(a)(1)
in relation to its prior language, or indicate in any way that the
language should be viewed as substantially similar to the prior
language. Id. at 5.
Thus, we find no basis for Petitioner's proposition that Congress did
not intend to make any substantive change in the 1987 amendment to the
language disputed here, in view of the absence of any statement to that
effect in the legislative history, the nature of the changes made to the
provision, and the clear overall intent expressed in the legislative
history to expand and clarify authority for both mandatory and
permissive exclusions. Here, we have a circumstance where the
Petitioner's offense not only falls within the literal terms of the
statute but also within its spirit and the intention of its makers. See
Holy Trinity Church v. United States, 143 U.S. 457 (1892).
B. The legislative history suggests that the amended language, if
not to expand the mandatory exclusion provision, was intended to
clarify the scope.
Even if we were to agree that this particular change (the omission of
the term "such individual's participation in") reflected no change
in
Congress' overall view of the exclusion authority, the legislative
history does not support Petitioner's view that the current language
means what Petitioner contended the prior language means. 7/ The
legislative history is consistent with a finding that the current
language represents what Congress intended from the start, and that the
1987 amendment was made to clarify the prior language.
In the Senate report on the 1987 amendment, Congress referred to the
prior law by using the standard in the revised law--"crimes related to
the delivery of health care" (rather than crimes related to the
individual's participation in the delivery of medical care, which is
what the prior law actually stated). S. Rep. No. 109, supra, at 5.
This indicates that, to the extent Congress intended the two versions to
be considered similar, it was because Congress read the prior law
broadly to encompass all convictions which are now clearly within the
plain meaning of the statute.
Other references to the prior language provide support for the
conclusion that Congress generally intended the mandatory exclusion
sanction to be available when the covered programs are victims of the
criminal offense, whether or not the offense itself involved the actual
delivery of a health care item or service by the convicted individual or
entity. The Senate report contains several descriptions of the prior
exclusion provision encompassing individuals convicted of a criminal act
"against" Medicare, Medicaid, or Title XX. Id., pp. 2-4.
Furthermore, when the prior language was enacted, the legislative
committee stated that the exclusion authority was necessary because
"misuse of Federal and State funds is a very serious offense and . . .
those convicted of crimes against the programs should not be permitted
continued and uninterrupted receipt of Federal and State funds." H.R.
Rep. No. 393, 95th Cong., 1st Sess. 69 (1977), reprinted in 1977 U.S.
Code Cong. & Admin. News 3072. This would also support a conclusion
that Congress was concerned with circumstances in which covered programs
were victims of crime.
In sum, the legislative history of the current language supports the
ALJ's conclusion. The legislative reports and a comparison with the
prior language do not, as Petitioner argued here, indicate that Congress
intended the current language to cover only circumstances in which the
criminal offense involved the convicted individual's own participation
in the delivery of an item or service in a covered program. Rather, the
legislative history supports the conclusion that Congress intended the
current language to clarify the reach of the mandatory exclusion
sanction. Accordingly, the meaning of the current language is not
circumscribed by the literal words of the prior provision. The
legislative history indicates that Congress intended the current
language, and probably the prior language as well, to apply in broader
circumstances when covered programs are victims of the crime.
The statutory framework
Petitioner asserted--
[t]hat Congress found it superfluous to state explicitly that
exclusion would result only from misconduct by the program
participant in his or her delivery of an item or service is further
supported by examination of the entire exclusion statute . . . .
Petitioner's Appeal Brief, p. 13. Petitioner contended that the various
provisions of the mandatory and permissive grounds for exclusion must be
read to mean that program related conduct of a convicted individual not
a third party triggers an exclusion. For example, Petitioner would have
us read the exclusion provisions to state as follows: ". . . of a
criminal offense relating to [the program participant's] neglect or
abuse of patients . . ." (section 1128(a)(2)), ". . . of a criminal
offense relating to [the program participant's] fraud, theft . . ."
(section 1128(b)(1)), and so on. This analysis, urged Petitioner,
supports a limited reading of the provision in question here.
Contrary to Petitioner's assertion, the mandatory exclusion at section
1128(a) applies based on the nature of the offense not the status of the
individual or entity committing the offense. Section 1128(a)(1) covers
criminal offenses related to the delivery of an item or service under a
covered program and is not conditioned on the individual's or entity's
own status. 8/ Similarly, the permissive exclusion, at section 1128(b),
may be applied, as necessary to protect covered programs, to any
individual or entity based on the specified reasons.
This view of the statutory framework is supported by the titles of the
mandatory and permissive exclusion sections, by the language of those
sections, and by the legislative history. The title of the mandatory
exclusion provision at section 1128(a)(1), "[c]onviction of
program-related crimes," indicates that the provision encompasses crimes
against covered programs. In turn, the permissive exclusion provisions
concerning criminal offenses do not require that the crime involve
covered programs.
While it is possible that an individual or entity might fit within both
the mandatory and permissive categories, the statute provides the
Secretary with no option to choose between them. Under section 1128(a),
if an individual or entity is convicted of a program-related criminal
offense, then the Secretary must impose an exclusion under that section.
See Greene v. Sullivan, Civil No. 3-89-758 (E.D. Tenn. Feb. 8, 1990)
(Order upholding final decision and reserving other issues in Jack W.
Greene, DAB App. 1078 (1989)); Charles W. Wheeler and Joan K. Todd, DAB
App. 1123 (1990).
The Senate report on the 1987 amendment, as we discussed extensively
above, characterized the existing mandatory exclusion authority to
extend against practitioners "for acts committed against" a covered
program. S. Rep. No. 109, supra, at 4. The report also states that
the permissive exclusion for convictions related to fraud, at section
1128(b)(1), is intended to provide authority to exclude "individuals or
entities convicted of criminal offenses [related to their financial
integrity] which are not related to Medicare or Medicaid or the other
state health care programs" under certain circumstances. Id. at 7.
The statutory framework, thus, supports the ALJ's conclusion that the
mandatory exclusion is properly applied even when the criminal offense
does not involve the convicted individual's own delivery of an item or
service in a covered program, under the circumstances here where a
covered program was a victim of the crime.
The Medicare program as victim of the crime here
The I.G. asserted that "[u]nder any reasonable reading of the statute
.
. . [Petitioner's] actions and resulting conviction were program
related." Tr. at 18. While the I.G. regarded it as determinative here
that Petitioner's criminal offense involved the conversion of a Medicare
check, the I.G. also argued and we agree that the circumstances
establish the impact on the program of the crime at issue here.
Petitioner, in his capacity as operator of International Medical
Laboratory, a Medicare provider, opened its mail and found a check
intended for another Medicare provider as reimbursement for items or
services provided under the program. Petitioner was then convicted for
the diversion of that Medicare check. 9/ Petitioner noted that he is
making restitution to the bank for the amount involved. This fact,
however, does not establish that there was no adverse impact on the
administration of the Medicare program from Petitioner's action. As the
I.G. pointed out, Petitioner converted funds clearly identified as
Medicare funds thereby depriving the other provider of funds to which it
was entitled, leaving the beneficiaries' account unpaid, and requiring
the program to conduct an investigation. The I.G. contended that such
conduct by the operator of a Medicare provider undercuts the public's
perception of the honesty and integrity of other providers and in fact
had a greater impact on the program than a simple false billing
incident, which even Petitioner agrees is covered by the mandatory
exclusion provision. See Tr. at 14-18 and I.G.'s Appeal Brief at 11 and
12 citing Petitioner's Appeal Brief at 9. On appeal, Petitioner did not
respond to the I.G.'s arguments detailing the adverse effect on the
Medicare program by Petitioner's conversion of the Medicare check.
Conclusion
For the reasons we discuss above, we affirm the ALJ's decision on the
contested findings, FFCL Nos. 6 (as modified), 8, and 11. Accordingly,
we conclude that the record supports the ALJ's determination that
Petitioner's conviction was within the scope of the mandatory exclusion
authority of section 1128(a)(1) of the Act.
_____________________________ Donald F.
Garrett
_____________________________ Theodore J.
Roumel U.S. Public Health Service
_____________________________ Cecilia Sparks
Ford Presiding Panel Member
ADDENDUM TO FINAL DECISION
APPELLATE DOCKET NO. 89-197 DECISION NO. 1135
In accordance with the Guidelines applicable to statutory exclusion
cases before an Appellate Panel of this Board, Petitioner and the I.G.
filed written briefs followed, at Petitioner's request, by an oral
argument via telephone conference call. During the oral argument,
Petitioner objected to the I.G.'s response to a question posed by the
Presiding Panel Member concerning the significance to "a postman or the
man on the street" of an exclusion from participation in a covered
program. The program analyst for the I.G. who accompanied the I.G.'s
counsel during the call responded that such an individual, if excluded,
could not work in connection with or have his salary paid from funds for
a covered program. Petitioner objected to this response on the grounds
that it brought new evidentiary matters into the record which were not
before the ALJ. Both counsel had an opportunity to address this
objection during the oral argument. During the call, the Presiding
Panel Member stated that, to the extent necessary, a formal ruling on
the objection would likely be made with the issuance of the decision.
However, she stated a tentative disposition of the objection for the
parties' information. The tentative ruling was that the response would
be disregarded to the extent it involved factual matters, such as the
I.G.'s practice in other cases, but that the response was relevant as an
explanation of the interpretation of the statutory language which the
I.G. was advancing in this case and was properly before the Board as a
clarification of matters in the record.
The Presiding Panel Member adopts as final the ruling stated during the
oral argument, noting that the basis for Petitioner's objection also is
unsound in light of the specific regulations which apply to this
proceeding and which accord to this Board broad authority to accept
evidence directly into the record. See 45 C.F.R. 498.95; section II.(e)
of the Appellate Division Guidelines. See also Tr., pp. 33-37 and
45-46.
Also, after the written briefing and the oral argument were completed,
the I.G. submitted a Motion to Supplement the Inspector General's
Response. The I.G. proposed to call to our attention a recent decision,
Mary Katherine Lyons, DAB Civ. Rem. C-49 (1989), by ALJ Charles Stratton
of the Civil Remedies Division of the Departmental Appeals Board. The
I.G. argued that this case appeared "relevant to several of
[Petitioner's] arguments and to questions raised during oral argument."
The I.G. argued that we should include this decision and accompanying
arguments in the record of this appeal to support its position that
section 1128(a) of the Act was not restricted to only actual providers
of health care services, but also applied to anyone involved in the
process of delivery of such services, including a data processing
person, such as Ms. Lyons.
Petitioner objected to the inclusion of the Lyons case and accompanying
arguments, contending that the admission of this material at such a late
stage of this proceeding would result in undue prejudice to Petitioner.
Petitioner further questioned the relevance of this material to the
particular facts of this proceeding.
As the Lyons case is a matter of public record which would be
independently available to the Board, the Presiding Panel Member has
determined to grant the I.G.'s motion to supplement the record. This
motion is granted in order to permit the I.G. to completely state its
arguments on this appeal. Moreover, the record contains Petitioner's
response and accepting the motion will not cause delay in the issuance
of the final decision. While the I.G.'s supplement relates to matters
raised during the oral argument, Petitioner's opposing motion
distinguishes this authority from the instant case. In any event,
reading of this decision will show that the Lyons case and the
accompanying arguments were not discussed since they are simply not
germane to the analysis and the result reached here. Accordingly, the
Presiding Panel Member determined that this relatively summary treatment
of the I.G.'s motion and Petitioner's opposing motion was appropriate.
_______________________________ Cecilia Sparks
Ford Presiding Panel Member
1. Napoleon S. Maminta, M.D., DAB Civ. Rem. C-81 (1989).
2. Petitioner chose not to contest the 10-year term of the exclusions
in order to appeal as a final decision the ALJ's May 5, 1989 ruling on
the first issue. ALJ's Decision, p. 2.
3. Attached as an addendum to this final decision is a ruling
resolving two matters which arose during the proceeding before the
Appellate Panel.
4. In light of our conclusion that Petitioner's conviction fell within
the mandatory exclusion authority, we do not need to address the
parties' arguments concerning whether the Appellate Panel could, on this
record, uphold a permissive exclusion under section 1128(b) of the Act.
5. While we find that the title in question here does not support
Petitioner's reading of the exclusion provision, we do note that a title
cannot change the effect of the plain import of the words of the
underlying provision. See Caminetti v. United States, 242 U.S. 470
(1917).
6. Indeed, we find Petitioner's argument internally inconsistent in
its attempt to limit the mandatory exclusion authority to offenses
involving the convicted individual's own delivery of an item or service
while recognizing that false or fraudulent billing offenses, which do
not necessarily arise from delivery of any item or service, are covered.
7. Petitioner asserted that the criminal conviction at issue here
would not have been covered by the pre-1987 statute and that therefore
the current language could not be read to apply to Petitioner either.
Petitioner's Reply Brief, p. 3. This view of the reach of the prior
language was not shared by the I.G. See Tr., p. 40. Although Petitioner
presents this premise as uncontrovertible, there is no support for it in
this record. In any event, we find it inappropriate in the context of
this case to, in essence, speculate as to the proper application of the
prior statutory language. The ALJ also found it unnecessary to reach
this question. See ALJ's May 5, l989 Ruling, p. 5, and Tr., pp. 37-44.
8. In this regard, the Senate report expressly states in describing
section 1128(a)(2) that--
As in the case of providers who are convicted
of program-related crimes, the Secretary could
exclude from Medicare individuals and entities
who are eligible to participate but are not
doing so . . . . S. Rep. No. 109, supra, at
5.
9. The front side of the check was titled, in prominent letters,
"MEDICARE PAYMENT." The check was made out to "Oncology Hema
Assoc
Spfld" and referred to a particular provider number, which was
apparently that of the intended recipient of the check. The reverse
side of the check specified, above the endorsement, that the check
represented the determination by the Medicare carrier of the full charge
payable. Photocopies of the check in question, Number 99166983, were
included by both parties among the proposed hearing exhibits before the
ALJ. There was no question raised as to the authenticity of the
photocopies. See Petitioner's February 10, 1989 Initial List of
Proposed Witnesses and Exhibits, Item H; The I.G.'s Exhibits, Item No.