SUBJECT:

Ethel Ann Arita,

Petitioner,

The Inspector General

Ethel Ann Arita, the Petitioner, is excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(3) of the Social Security Act (Act) (42 U.S.C. � 1320a-7(a)(3)), effective September 19, 2002, based upon her conviction for theft in connection with the delivery of a health care item or service. 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)).

I. PROCEDURAL HISTORY

The I.G. notified Petitioner by letter dated August 30, 2002, that she was being excluded from participation in Medicare, Medicaid and all Federal health care programs pursuant to section 1128(a)(3) of the Act due to her felony conviction for theft in connection with the delivery of a health care item or service. The I.G. further advised Petitioner that she was being excluded for the minimum authorized period of five years, effective 20 days from the date of the letter. I.G. Exhibit (Ex.) 1.

Petitioner requested a hearing by letter dated September 9, 2002. I.G. Ex. 2. On October 23, 2002, the case was assigned to me for hearing and decision. A telephonic prehearing conference was scheduled for October 29, 2002, however, Petitioner could not be reached by telephone on that date. The prehearing conference was rescheduled and completed on December 12, 2002, the substance of which is recorded in my order of December 16, 2002. During the prehearing conference, the I.G. indicated the desire to move for summary disposition of this case. Accordingly, a briefing schedule was established.

On January 31, 2003, the I.G. filed its motion for summary affirmance with supporting memorandum and exhibits 1 through 5. Petitioner responded to the I.G. brief by letter dated February 7, 2003 with several enclosures. The I.G. filed a reply brief on April 4, 2003 to which the Petitioner responded by letter dated April 16, 2003. The I.G. exhibits are admitted as I.G. Exs. 1 through 5, as no objection has been made to their admission. The I.G. objected to my consideration of the enclosures to Petitioner's February 7, 2003 letter as substantive evidence on relevancy and other grounds. ⁽¹⁾ The I.G. is correct that documents attached to Petitioner's February 7, 2003 letter are not relevant to any issue before me. Thus, the documents submitted by Petitioner are not admitted as substantive evidence. ⁽²⁾

Having carefully consider the submissions of the Parties, I conclude that there are no material issues of fact in dispute, a hearing is unnecessary for a full and fair adjudication, and summary judgment is appropriate.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. FINDINGS OF FACT

1. At all relevant times, Petitioner was a care attendant who worked at Woodlyn Hills Health Care Center at Inver Grove Heights, Minnesota. I.G. Ex. 2, p. 1.

2. Petitioner was convicted, pursuant to her Alford plea, of theft of more than $500 from a resident under her care and sentenced to 35 days incarceration, probation for six months, a fine of $100, community service and she was required to make restitution. I.G. Ex. 3.

3. The I.G. notified Petitioner by letter dated August 30, 2002, that she was excluded from participation in Medicare, Medicaid, and all Federal health care programs, pursuant to section 1128(a)(3) of the Act, for a period of 5 years effective 20 days from the date of the notice.

4.Petitioner filed a request for hearing on September 9, 2002.

B. CONCLUSIONS OF LAW

1. Summary judgment is appropriate as there are no material issues of fact in dispute.

2. Petitioner's request for hearing was timely filed.

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

4. Petitioner was convicted of a felony offense within the meaning of section 1128(a)(3) of the Act.

5. Petitioner was convicted of an offense that occurred after the effective date of the Act.

6. Petitioner was convicted of theft in connection with the delivery of a health care item or service as the theft to which she pled guilty involved a taking from a resident in her care.


7. Petitioner's conviction of a program related criminal offense requires that she be excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of five years. Act, sections 1128(a)(3) and 1128(c)(3)(B).

8. Petitioner's five-year exclusion is mandated by the Act and I have no authority to consider whether the length of the exclusion is unreasonable, as Petitioner's exclusion is reasonable as a matter of law.

III. DISCUSSION

A. ISSUES

The only issue in this case is whether there is a basis for Petitioner's exclusion, specifically whether she was convicted of a felony criminal offense within the meaning of section 1128(a)(3) of the Act. There is no issue as to whether the period of exclusion is reasonable in this case. The I.G. imposed the minimum mandatory five-year exclusion against Petitioner. Thus, if a basis exists to exclude Petitioner, a five-year period of exclusion is reasonable as a matter of law.

B. APPLICABLE LAW

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (Secretary) is provided by section 1128(f) of the Act (42 U.S.C. � 1320a-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 in cases brought under section 1128: (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(c) and (d). Moreover, in a case brought pursuant to section 1128(a) of the Act, where the only exclusion imposed by the I.G. is for a five-year period, I may only consider whether there is a basis for the imposition of the sanction because the Act, at section 1128(c)(3)(B), mandates a minimum five-year period of exclusion.

The standard of proof is 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).

Section 1128(a) of the Act (42 U.S.C. � 1320a-7) requires that the Secretary exclude individuals and entities from participating in federal health care programs based on their conviction of specified criminal offenses. Exclusion is required for individuals or entities convicted of the offenses specified in section 1128(a)(3) of the Act, as follows:

Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program (other than those specifically described in paragraph (1)) operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

Section 1128(i) of the Act defines the term "convicted" under section 1128a, in part, as follows: an individual or entity is considered to have been "convicted" of a criminal offense - when a judgment of conviction has been entered against the individual or entity by a federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged; and when a plea of guilty or nolo contendere by the individual has been accepted by a federal, State, or local court. Act, section 1128(i)(1), (3).

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. � 1001.102(b), no exclusion pursuant to section 1128(a) may be for less than five years, but the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

C. ANALYSIS

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). However, if the movant's documentary evidence demonstrates on its face the existence of a genuine dispute of material fact or when it fails to foreclose the possibility of a factual dispute, the non-moving party does not have an obligation to provide opposing evidentiary material and summary judgment should not be granted. Thelma Walley, DAB No. 1367, at 6 (1992).

Petitioner does not dispute that she was convicted of theft, and sentenced to 35 days incarceration, probation for six months, a fine of $100, community service and she was required to make restitution. I.G. Ex. 3. In fact, Petitioner admits in her letter of February 7, 2003, that she was convicted as alleged by the I.G. She states that she pled guilty to the one count of theft as advised by her "court attorney" in order to have the other two counts dismissed. The sentencing order which reflects the plea of guilty to theft, does not indicate the plea was by exceptions and substitutions or to a lesser offense than that charged. I.G. Ex. 3. The complaint, admitted without objection, reflects that the theft to which Petitioner pled guilty involved her taking checks from a resident of the nursing home where she worked and then using those checks to obtain approximately $2,000 from the account of the resident. The two charges to which Petitioner did not plead guilty alleged aiding and abetting check forgery and financial exploitation of a vulnerable adult. I.G. Ex. 3.

In her request for hearing dated September 9, 2002 (I.G. Ex. 4), Petitioner states that she "disagree (sic) with the criminal offense related to any kind of misconduct or financial connection with fraud, theft embezzlement." Id., at 1. She suggests that she was not given a proper chance to prove her case, that the charges are false, that she provided excellent care for her residents, and that other providers did bad things. In a letter to counsel for the I.G., Petitioner alleges that she was tricked into pleading guilty and that there was a conspiracy against her. I.G. Ex. 5. In her letter of February 7, 2003 responding to the I.G. brief, Petitioner never denies she actually did the crime in this case but attempts to shift the focus to other alleged accomplices. Petitioner also requests that the I.G. limit her exclusion to Minnesota only. ⁽³⁾ In her April 16, 2003 letter responding to the I.G. reply brief, Petitioner alleges that the I.G. action is the result of prejudice and bigotry. Throughout all Petitioner's correspondence are references to the financial hardship she and her family suffer due to her conviction and the exclusion.

None of Petitioner's arguments are of avail to her. Petitioner pled guilty to the crime of stealing checks from one of the residents she cared for and then using those checks to obtain money. The law prohibits me and the I.G. from inquiring into the basis for her conviction. 42 C.F.R. � 1001.2007(d). Thus, there are no factual issues related to the conviction that are subject to dispute. It is undisputed that Petitioner pled guilty to the offense, that the offense related to the theft of property of one of the residents that she cared for, that the offense was a felony, and that the offense occurred after August 21, 1996, the effective date of the statute. Further, it is well settled that an accepted Alford plea constitutes a conviction within the meaning of section 1128(i) of the Act. See e.g. Steven Alonzo Henry, M.D., CR638 (2000); Mark Zweig, DAB CR563 (1999); Magdiz Z. Fahmy, DAB CR176 (1992); Russell E. Bailey, DAB CR128 (1991); Raymond R. Veloso, DAB CR124 (1991). Accordingly, I conclude that there is a basis for exclusion.

Having found that the I.G. had a basis upon which to exclude Petitioner, I must affirm Petitioner's five-year exclusion. It is the minimum period of exclusion mandated by the Act (Act, section 1128(c)(3)(B)), and I am barred by both statute and regulation from reducing the period of exclusion based upon any factors including those urged by Petitioner. ⁽⁴⁾ Thus, there are no issues of fact to resolve regarding the reasonableness of the period of exclusion.

IV. CONCLUSION

For the foregoing reasons, Petitioner, is excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(3) of the Social Security Act (Act), effective September 19, 2002, for a period of five years.

KEITH W. SICKENDICK

Administrative Law Judge

1. The I.G. does not object to the sentencing order attached to Petitioner's letter but that document has already been admitted as I.G. Ex. 3 and it is not necessary to admit it again.

2. I have considered the submitted documents to the extent that they expand upon or illustrate Petitioner's arguments in this case.

3. Requests for waiver are not within my jurisdiction and I have no authority to act upon Petitioner's request. However, the I.G. describes the process in detail in its Reply Brief, pp. 3-4.

4. Even if I could consider Petitioner's arguments in mitigation, financial hardship is not a factor permitted to be considered under the applicable regulation. Further, it is not clear against whom Petitioner alleges prejudice and bigotry. However, if the allegation is leveled against the I.G. it is inconsistent with the fact that the Act and regulations give the I.G. little or no discretion to act in this case. Congress dictates through the Act that Petitioner be excluded due to her conviction and the I.G. has no discretion not to exclude. The I.G. had some discretion to impose an exclusion longer than five years, but could impose no exclusion less than five years.