SUBJECT:

Rose Mary Maye,

Petitioner,

The Inspector General

Rose Mary Maye, Petitioner, is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. � 1320a-7(a)(1)), effective August 20, 2002, based upon her conviction of a program related crime. There is a proper basis for exclusion. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)). There is no issue as to whether the period of exclusion is unreasonable, as it is the minimum period allowed by law.

I. Procedural History

Petitioner was advised of her exclusion by letter dated July 31, 2002, in which the Inspector General (I.G.) cited section 1128(a)(1) of the Act (42 U.S.C. � 1320a-7(a)(1)) as the basis for Petitioner's exclusion. Petitioner requested a hearing to challenge the I.G.'s action by letter dated September 30, 2002. On October 21, 2002, the case was assigned to me for hearing and decision. On November 26, 2002, I conducted a telephonic prehearing conference, the substance of which is memorialized in my order of that date. The I.G. filed her motion for summary disposition and supporting brief on December 23, 2002 (I.G. Brief), with attached exhibits 1 through 9 (I.G. Ex.). Petitioner filed a letter dated January 17, 2003, in response. The I.G. filed a reply brief on February 13, 2003 (I.G. Reply). Petitioner made no objection to the exhibits offered by the IG and the offered exhibits are admitted as I.G. Exs. 1 - 9.

II. Findings of Fact and Conclusions of Law

A. FINDINGS OF FACT

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the parties pleadings and the exhibits admitted.

1. Petitioner was, at all relevant times, a registered nurse employed at the Rolling Acres Retirement Center located in Raleigh, Mississippi.
   
2. Petitioner does not dispute that on May 8, 2002 she was convicted, pursuant to her plea, of at least one count of falsification of medical records of a Medicaid patient.
3. Petitioner was sentenced to pay a fine of $500.00 for the conviction described in Finding 2. I.G. Ex. 9.
   
4. The facts underlying Petitioner's conviction are not disputed:
   

   a. On September 21, 2001 at about 2:00 a.m., the Medicaid Fraud Control Unit of the Mississippi Attorney General's office conducted an unannounced inspection of Rolling Acres Retirement Center in Raleigh, Mississippi where Petitioner worked as a registered nurse.

   b. Inspectors reviewed the medication administration records for some patients and found in at least one case that Petitioner had placed her initials in a block indicating administration of medication before it was time to administer the medication and before it was actually given.

   c. Petitioner does not deny the incident of "pre-charting" but asserts that it was unintentional and done without knowledge.

   d. Petitioner voluntarily pled guilty to the charge of falsification of medical records in return for a sentence limited to a $500 fine rather than up to six months confinement and a $1,000 fine.

5. The I.G. advised Petitioner of her exclusion pursuant to section 1128(a)(1) of the Act by letter dated July 31, 2002.

6. Petitioner requested a hearing to challenge the I.G.'s action by letter dated September 30, 2002.

B. CONCLUSIONS OF LAW

1. Summary judgment is appropriate in this case as there are no material facts in dispute.


2. Petitioner was convicted within the meaning of section 1128(i) of the Act. 42 U.S.C. � 1320a-7(i).


3. Petitioner was convicted, pursuant to her plea, as accepted by the court, of one count of falsification of medical records.


4. There is a nexus between the falsification of a medical record by precharting administration of medication and the delivery of an item or service under Medicare or Medicaid on the facts of this case, for purposes of the application of section 1128(a)(1) of the Act (42 U.S.C. � 1320a-7(a)(1)).


5. Petitioner must be excluded from participation in any federal health care program for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. � 1320a-7(c)(3)(B)) due to her conviction.


6. There is no issue regarding the reasonableness of the period of exclusion as five years is the minimum period of exclusion authorized by law.
7. The effective date of Petitioner's exclusion is August 20, 2002, 20 days after the July 31, 2002 notice of exclusion from the I.G. 42 C.F.R. � 1005.20(b).
   

III. Discussion

A. ISSUES

1. Whether there is a basis for Petitioner's exclusion.

2. Whether the period of exclusion is unreasonable.

B. APPLICABLE LAW

Petitioner's right to a hearing by an administrative law judge and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. � 1230a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction. However, the Secretary has by regulation limited my scope of review to two issues: (1) whether there is a basis for the imposition of the sanction; and, (2) whether the length of the exclusion is unreasonable. 42 C.F.R. � 1001.2007(a)(1). The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. � 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. � 1005.15(b) and (c).

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in the Medicare and Medicaid programs any individual or entity convicted of a criminal offense related to the delivery of an item or service under the Medicare and Medicaid programs. Section 1128(i) of the Act (42 U.S.C. � 1230a-7(i)) defines the term "convicted" to include entry of a judgment of conviction by any court whether or not an appeal is taken or the record is later expunged; when there has been a finding of guilt against the individual or entity; when a plea of guilty or nolo contendere has been accepted by a federal, state, or local court; or when the individual has entered into a first offender, deferred adjudication, or other arrangement or program where a judgment of conviction has been withheld.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. �� 1001.101 and 102(b) no exclusion pursuant to 1128(a) may be for less than five years.

The effective date of Petitioner's exclusion is August 20, 2002, 20 days after the July 31, 2002 notice of exclusion from the I.G. 42 C.F.R. � 1005.20(b).

C. ANALYSIS

1. Summary judgment is appropriate.

Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 2 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); see also, New Millennium CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000). There are no material issues of fact in dispute in this case and all issues may be resolved as a matter of law. Accordingly, summary judgment is appropriate.

2. There is a basis for Petitioner's exclusion pursuant to section 1128(a)(1).

Petitioner does not dispute that on May 8, 2002 she was convicted pursuant to her plea of one count of falsification of medical records. She was sentenced to pay a fine of $500.00. I.G. Ex. 9. The facts as related by Petitioner are that on September 21, 2001 at about 2:00 a.m., the Medicaid Fraud Control Unit of the Mississippi Attorney General's office conducted an unannounced inspection of Rolling Acres Retirement Center in Raleigh, Mississippi where Petitioner worked as a registered nurse. Inspectors reviewed the medication administration records for some patients and found in one case that Petitioner had placed her initials in a block indicating administration of medication before it was time to administer the medication and before it was actually given. Petitioner does not deny the incident of "pre-charting" but asserts that it was unintentional and done without knowledge. Petitioner entered an agreement with the Mississippi Board of Nursing pursuant to which she received a formal reprimand and had to complete some training in order to maintain her nursing license. Petitioner voluntarily pled guilty to the charge of falsification of medical records in return for a sentence limited to a $500 fine rather than up to six months confinement and a $1,000 fine. Petitioner asserts that she did not understand that she would be subject to exclusion from participation in Medicare, Medicaid and all federal health care programs based on her conviction. P. Letter dated January 17, 2003, pp. 2-3.

I accept all the facts as alleged by Petitioner to be true and draw all inferences in her favor for purposes of this summary judgment decision. Nevertheless, as a matter of law, the fact that she was convicted subjects her to mandatory exclusion. The law draws no distinction between felony and misdemeanor offenses under section 1128(a)(1). The regulations also specifically prohibit collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. � 1001.2007(d). Petitioner simply cannot challenge the facts relating to her criminal conviction in a hearing before me. See Valerie Baker, DAB CR815 (2001); Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Ernest Valle, DAB CR309 (1994); Peter Edmondson, DAB CR163, aff'd, DAB No. 1330 (1992). Neither the I.G. nor I can look behind the conviction to determine whether Petitioner might have had a defense that she waived by virtue of her guilty plea. Furthermore, the language of section 1128(a) makes it mandatory that the I.G. exclude Petitioner once it is shown she was convicted of a program related crime.

The conclusion that Petitioner's was a program related crime is not disputed by Petitioner. In fact, there can be little question that administration of medication and maintenance of medication records in a facility participating in Medicare or Medicaid by an employee of the facility is program related. It is sufficient, for purposes of application of section 1128(a)(1), that there be a nexus between Petitioner's conduct and the delivery of an item or service under Medicare or Medicaid. Salvacion Lee, M.D., DAB No. 1850 (2002) aff'ing, DAB CR920 (2002). See also, Donald J. Purcell, II, M.D. DAB CR572 (1999); Tanya A. Chouke, R.N., DAB CR865 (2002); Dan Anderson, DAB CR855 (2002); Larry W. Dabbs, R.Ph., et al., DAB CR151 (1991).

3. The is no issue of the reasonableness of the period of exclusion as five years is the minimum allowed.

Petitioner does not challenge that, if she was convicted within the meaning of the Act of an offense related to the delivery of an item or service, the Act imposes a minimum exclusion of five years. The I.G., the Secretary and I have no discretion or authority to shorten the five-year minimum exclusion. Act, � 1128(c)(3)(B); 42 U.S.C. � 1320a-7(c)(3)(B).

The effective date of Petitioner's exclusion is August 20, 2002, 20 days after the I.G.'s July 31, 2002 notice of exclusion. 42 C.F.R. � 1005.20(b).

IV. Conclusion

For the foregoing reasons, Petitioner remains excluded from participation in Medicare, Medicaid and all federal health care programs for a period of five years effective August 20, 2002.

Keith W. Sickendick

Administrative Law Judge