SUBJECT:

Gerald A. Goff,

Petitioner,

The Inspector General

I decide that the Inspector General (I.G.) is authorized to exclude Petitioner, Gerald A. Goff, from participating in Medicare and other federally funded health care programs for a period of five years.

I. Background

On May 30, 2003, the I.G. notified Petitioner that he was being excluded from participating in Medicare and other federally funded health care programs. The I.G. told Petitioner that he was being excluded pursuant to section 1128(a)(1) of the Social Security Act (Act) because Petitioner had been convicted in a state court of a criminal offense related to the delivery of an item or service under a state Medicaid program. Additionally, the I.G. notified Petitioner that he was being excluded for the statute-mandated minimum period of five years.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. At a telephone pre-hearing conference the parties advised me that they thought the case could be decided based on their written submissions. The parties then submitted briefs. Additionally, the I.G. submitted proposed exhibits consisting of I.G. Ex. 1 - I.G. Ex. 8. Petitioner submitted no exhibits. Petitioner implicitly disputed the relevance of I.G. Ex. 1 and I.G. Ex. 5 - I.G. Ex. 8 in his brief although he did not explicitly object to my receiving into evidence any of the I.G.'s proposed exhibits. I find all of the I.G.'s exhibits to be relevant, for reasons which I discuss below, and I receive them into evidence.

II. Issue, findings of fact and conclusions of law

A. Issue

The sole issue in this case is whether the I.G. is authorized to exclude Petitioner pursuant to section 1128(a)(1) of the Act. There is no issue as to whether the length of the exclusion - five years - is reasonable because it is the minimum exclusion that must be imposed against an individual who is convicted of an offense described at section 1128(a)(1). Act, section 1128(c)(3)(B).

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Petitioner was convicted of a criminal offense as is described at section 1128(a)(1) of the Act.

Section 1128(a)(1) of the Act mandates the exclusion of any individual who is convicted of a criminal offense that is related to the delivery of an item or service under Medicare or a State health care program. The I.G. alleges that Petitioner was convicted of such an offense based on the following facts.

In November 1999 Petitioner was charged with three felonies under Michigan State law. I.G. Ex. 2, at 1. The charges consisted of: unauthorized practice of a health care profession (Count 1); Medicaid fraud (Count 2); and receiving money under false pretenses (Count 3). Id. Petitioner subsequently agreed to plead guilty to the counts of unauthorized practice of a health care profession and of receiving money under false pretenses. I.G. Ex. 3, at 1. On March 28, 2000, Petitioner's plea was accepted in the State of Michigan, 30^th Judicial Circuit. I.G. Ex. 4, at 1.

The facts underlying Petitioner's conviction are as follows. In 1996 Petitioner entered into a contract with Bay-Arenac Community Mental Health Services Board (Bay-Arenac) in Bay City, Michigan, to provide psychological services. I.G. Ex. 1. The contract contained a clause that specifically required that all services rendered to consumers under the contract be provided by licensed personnel. Id. at 2. Petitioner was required to provide Bay-Arenac with a copy of his professional license as a psychologist in Michigan. I.G. Ex. 2, at 2. The document that Petitioner provided, as alleged satisfaction of this requirement, was actually a copy of a co-worker's license that Petitioner had altered and forged to make it appear as if it was actually his license. Id.

Petitioner then provided psychological services, based on his forged license, for patients who were referred to him by Bay-Arenac. I.G. Ex. 2, at 2. On June 26, 1998, Petitioner prepared a treatment plan for a mental health patient (patient # 707762, referred to in Count 1 of the indictment against Petitioner) who was referred to him by Bay-Arenac. Petitioner signed the treatment plan indicating that he was a licensed psychologist when, in fact, he was not licensed to practice psychology in Michigan. Id. Additionally, Petitioner completed and certified invoices for services as a licensed psychologist knowing that he was not in fact licensed to practice in Michigan. Id. at 3. On January 23, 1998, Petitioner completed and certified invoice # 20361 (referred to in Count 3 of the indictment against Petitioner) for his professional services as a psychologist although he knew that he was not licensed. Id. This false invoice induced Bay-Arenac to compensate Petitioner. Id.

Bay-Arenac receives funds from Michigan's Medicaid program as compensation for the services it performs or has performed on Michigan Medicaid's behalf. I.G. Ex. 8. The patients Petitioner treated included recipients of Michigan Medicaid funds. Patient # 707762, referred to in Count 1 of the indictment, is an individual, AMD, who is a Michigan Medicaid recipient. I.G. Ex. 5, at 1 - 2. Invoice # 20361 specifically identifies psychological services that Petitioner provided to AMD. I.G. Ex. 7.

The foregoing facts establish that Petitioner was convicted of a section 1128(a)(1) offense. The issue of what is a crime that is related to a Medicare or Medicaid item or service has been litigated extensively. An offense is program-related if it involves theft or attempted theft of program funds. But, it is also program-related if the provision of a Medicare or Medicaid item or service is part of the chain of events that constituted the crime. Larry W. Dabbs, R.Ph., DAB CR151 (1991). In this case, the provision of services to Medicaid recipients that were indirectly compensated by Medicaid was an element of Petitioner's crimes. Bay-Arenac contracted with Petitioner precisely because it needed a psychologist to whom it could refer Medicaid recipients for services. Implicit in the contract was the condition that Bay-Arenac would refer Medicaid recipients to Petitioner. Also implicit was the understanding that Petitioner would be compensated for his services to Medicaid recipients with funds that Bay-Arenac received from the Michigan Medicaid program. And, in fact, the services that are cited in counts of the felony complaint to which Petitioner pled guilty - Counts 1 and 3 - are services that Petitioner provided to AMD, a Medicaid recipient.

Petitioner argues that the facts which establish that he was convicted of program-related offenses are irrelevant. He contends that none of the facts that establish his offenses to have been program-related are mentioned in his indictment, his plea agreement, or in the documents which dispose of his criminal case. See I.G. Ex. 2 - I.G. Ex. 4. According to Petitioner, evidence that is extrinsic to the documents relating to his indictment and conviction may not be considered by either the I.G. or me in deciding whether Petitioner committed a program-related offense. See I.G. Ex. 1; I.G. Ex. 5 - I.G. Ex. 8.

Petitioner attempts to draw support for this argument from case law that holds that an excluded individual may not relitigate the facts that led to his conviction in a case where the exclusion determination derives from that conviction. See Travers v. Sullivan, 801 F. Supp. 394, 403 (E.D. Wash. 1992), aff'd, 20 F.3d 993 (9^th Cir. 1994). He reasons that, if it is not permissible to contest the underlying facts in a derivative exclusion case, then it must be unreasonable to examine those facts in order to decide what is implicit in an indictment or in a conviction.

I am not persuaded by this argument. It is settled law that reliable extrinsic evidence may be considered by a fact-finder in order to decide whether a conviction is for an offense that falls within the reach of one of the subsections of section 1128 of the Act. Narendra M. Patel, M.D., DAB No. 1736 (2000). The fact that an exclusion may derive from a conviction in a state or federal court proceeding does not mean that the underlying facts of the case may not be considered in order to decide what the conviction was for or was about. If it were otherwise, the I.G. could be hamstrung by court documents that were written without consideration of the collateral consequences mandated by section 1128 or even by artfully drawn plea agreements that are designed to satisfy the demands of local prosecutors but also sidestep the requirements of section 1128. That would frustrate the remedial purpose of the Act. Put simply, the I.G. is entitled to expose the basis for a conviction if reliable evidence exists to explain vague or non-specific statements in the documents that relate to that conviction.

Moreover, the issue of whether extrinsic evidence may be considered to explain a conviction is in no sense comparable to the issue of whether an individual may challenge a conviction-based exclusion imposed under a subsection of section 1128 on the ground that he or she was not guilty of the offense that is the basis for the exclusion. In the latter instance going behind the conviction is precluded as a matter of law because the Act explicitly instructs the I.G. to exclude based on the conviction. The I.G. is without authority to reopen and to, in effect, overturn for administrative purposes a conviction that on its face mandates or authorizes an exclusion. By contrast, in the present situation, the I.G. seeks only to look at the underlying facts in order to explain what the conviction is about. Nothing in the Act or in the regulations precludes such an inquiry.

Here, there is no doubt that the evidence on which the I.G. relies to explain Petitioner's conviction is reliable. Petitioner does not deny that the patients who were referred to him by Bay-Arenac included Medicaid recipients nor has he denied that Bay-Arenac was compensated by the Michigan Medicaid program for the services which he rendered to Medicaid recipients on Bay-Arenac's behalf. More to the point, Petitioner does not deny that AMD - a Medicaid recipient - was the patient who is referred to indirectly in Count 1 and directly in Count 3 of the indictment against Petitioner.

Steven T. Kessel

Administrative Law Judge