SUBJECT:

Susanne Marie Allen,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Susanne Marie Allen, from participating in Medicare, Medicaid, and other federally-funded health care programs for a period of five years. The exclusion is mandatory because Petitioner was convicted of crimes that fall within sections 1128(a)(1) and 1128(a)(3) of the Social Security Act (Act).

I. Background

On April 30, 2004, the I.G. notified Petitioner that she was being excluded from participation in Medicare, Medicaid, and other federally-funded health care programs for a period of at least five years. The I.G. advised Petitioner that the exclusion determination was made pursuant to sections 1128(a)(1) and 1128(a)(3) of the Act.

Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. On July 29, 2004, I held a telephone prehearing conference. During the conference call, I gave the parties a schedule by which they would file written submissions to address the merits of the case. I confirmed the call with a written prehearing order that was sent to the parties on August 4, 2004. The order gave the I.G. until August 31, 2004 to file a brief and proposed exhibits. Petitioner had until September 29, 2004 to file her response, including any proposed exhibits.

The I.G. timely submitted a brief and proposed exhibits. Petitioner submitted nothing. Petitioner made no substantive submission, nor have I received a motion from Petitioner requesting an extension of the submission deadline. At my request, our office contacted the I.G.'s counsel in order to determine whether Petitioner had communicated with that office. I was advised that the I.G. had received nothing from Petitioner.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. It is appropriate to decide this case now; and

2. The I.G. was mandated to exclude Petitioner for a period of at least five years.

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. A decision is appropriate.

I gave Petitioner the opportunity to file a submission with me which addressed the merits of this case. Petitioner failed to avail herself of that opportunity. In light of that, it is appropriate that I proceed to decide this case without further delay.

My obligation is to provide the parties with the opportunity to fully air their arguments before me and to present any evidence that is relevant to those arguments. I gave Petitioner that opportunity. That she did not avail herself of it is her choice. But, her failure to make a submission does not justify delaying a decision, nor does it obligate me to pursue her in order to obtain something from her.

I would be justified in dismissing Petitioner's request under the sanctions provisions of 42 C.F.R. � 1001.14. Failure to comply with an administrative law judge's order is a basis for dismissal of a hearing request under 42 C.F.R. � 1001.14(a)(5). I opt not to do so here. Rather, I address the merits of the case based on the I.G.'s submission and the contents of Petitioner's hearing request.

The I.G. filed three proposed exhibits (I.G. Ex. 1 - I.G. Ex. 3) as part of his submission. I am receiving these exhibits into evidence in the absence of any objection from Petitioner.

2. Sections 1128(a)(1) and 1128(a)(3) of the Act mandate the I.G. to exclude Petitioner.

Sections 1128(a)(1) and 1128(a)(3) of the Act contain mandatory exclusion requirements. The I.G. must exclude any individual who is convicted of a crime that falls within the purview of either of these two sections. As I discuss below, Petitioner was convicted of crimes that fall within the ambit of each of these two sections and, therefore, the I.G. is mandated to exclude Petitioner.

The I.G. must exclude 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 Medicaid program. Act, section 1128(a)(1). The I.G. must also exclude any individual who is convicted of an offense occurring after August 21, 1996:

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 an offense that is covered by section 1128(a)(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.

Act, section 1128(a)(3). ⁽¹⁾

The undisputed facts of this case establish Petitioner to have been convicted of crimes that fall under each of these two statutory exclusion requirements. On March 27, 2002, Petitioner was charged in a Superseding Indictment issued by the United States District Court, District of Utah, Central Division, with various acts of health care fraud. I.G. Ex. 2. She was convicted of counts 1 - 4 of this Indictment on November 21, 2003. I.G. Ex. 3, at 1.

Petitioner's conviction of the crimes described at counts 2 - 4 of the Indictment are convictions for offenses described at section 1128(a)(1) of the Act. Her convictions under these counts plainly are convictions of crimes that are related to the delivery of items or services under Utah's Medicaid program. I. G. Ex. 2, at 7 - 8. The Indictment charges that Petitioner - who held an advanced practice registered nurse license, and who operated a medical clinic principally engaged in the business of providing out-patient medical and nursing services - made "false, fictitious, or fraudulent" reimbursement claims for services in that she:

. . . misrepresented, and caused to be misrepresented, on claims that a physician provider had performed such medical services or that . . . [Petitioner] had performed such services under the supervision of a physician provider, knowing full well that such services either were not performed by the physician or that such physician did not provide, nor was available to provide, such supervision, resulting in payments from government programs to which . . . [Petitioner] was not entitled.

I.G. Ex. 2, at 1 - 2, 7. Counts 2 - 4 of the Indictment link these general allegations of false, fictitious, and fraudulent reimbursement claims by Petitioner to specific claims that Petitioner filed with the Utah Medicaid program.

Petitioner's conviction of the crime that is described at count 1 of the Indictment is a conviction of an offense that falls under the purview of section 1128(a)(3) of the Act. In count 1, Petitioner is charged with filing a false reimbursement claim with the Tricare Program (Tricare), an aspect of the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS). I.G. Ex. 2, at 3 - 4, 7. CHAMPUS is a federally-funded health care program and fraud committed against that program meets the definition of fraud, theft, or embezzlement against a government program other than Medicare or Medicaid that is described at section 1128(a)(3). The offense charged at count 1 was committed on October 21, 1999, well after the enactment date of HIPAA.

In reaching my decision, I have considered the assertions made on behalf of Petitioner in her hearing request. These are equitable contentions about Petitioner's present performance of her job duties and her value to her employer. While I do not question the truth of these assertions, neither do I find them to be relevant to this case. Nothing that is said in Petitioner's hearing request contradicts my finding that Petitioner was convicted of crimes that fall within the ambit of sections 1128(a)(1) and 1128(a)(3) of the Act.

3. The five-year period of Petitioner's exclusion is the minimum that the law requires the I.G. to impose.

Section 1128(c)(3)(B) of the Act requires that the I.G. must exclude, for a term of at least five years, any individual who is excluded pursuant to one of the subparts of section 1128(a) of the Act, including sections 1128(a)(1) and 1128(a)(3). The exclusion in this case - five years - is for the statutory minimum period and is, therefore, reasonable as a matter of law.

Steven T. Kessel

Administrative Law Judge

1. The August 21, 1996 cut-off date for exclusions imposed pursuant to section 1128(a)(3) is the date of enactment of the Health Insurance Accountability and Portability Act (HIPAA).