SUBJECT:

Edmund Oliveros,

Petitioner,

The Inspector General.

DECISION

This matter is before me on the Inspector General's (I.G.) Motion for Summary Affirmance of the I.G.'s determination to exclude Petitioner, Edmund Oliveros, from participation in Medicare, Medicaid, and all federal health care programs for a period of five years. The I.G.'s Motion and determination to exclude Petitioner are based on the terms of sections 1128(a)(1) and 1128(a)(3) of the Social Security Act (Act), 42 U.S.C. �� 1320a-7(a)(1) and 1320a-7(a)(3). For the reasons discussed below, there is a proper basis for exclusion, and the Act mandates a minimum five-year period of exclusion. I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

By letter dated June 30, 2005, the I.G. notified Petitioner that he was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum statutory period of five years, pursuant to sections 1128(a)(1) and 1128(a)(3) of the Act.

Acting pro se, Petitioner timely requested a hearing by letter dated July 5, 2005. The case was assigned to me for a hearing and a decision. I held a telephone prehearing conference on September 8, 2005, at which I advised the parties that there did not appear to be any material facts in dispute, and that the case involved a question of law only. I advised the parties that this case appeared to be resolvable without an in-person hearing. I established a schedule for the submission of briefs and documentary evidence. Thereafter, the I.G. submitted his motion and brief (I.G. Brief), accompanied by five exhibits (I.G. Exs. 1-5). Petitioner filed a response in opposition to the I.G. Brief (Petitioner's Response), with no exhibits. The I.G. submitted a reply to Petitioner's Response. Petitioner has expressed no objection to the I.G.'s proposed exhibits. Accordingly, I admit I.G. Exs. 1-5.

II. Issues

The legal issues before me are limited to those enumerated at 42 C.F.R. � 1001.2007(a)(1). In the specific context of this record, they are:

1. Whether the I.G. has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all federal health care programs pursuant to sections 1128(a)(1) and 1128(a)(3) of the Act; and

2. Whether the proposed five-year period of exclusion is unreasonable.

III. Controlling Statutes and Regulations

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 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.

Section 1128(a)(1) of the Act, 42 U.S.C. � 1320a-7(a)(1), requires the mandatory exclusion from participation in Medicare, Medicaid, and all federal health care programs of 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." The terms of section 1128(a)(1) are restated in regulatory language at 42 C.F.R. � 1001.101(a). This statutory provision makes no distinction between felony convictions and misdemeanor convictions as predicates for mandatory exclusion.

Section 1128(a)(3) of the Act, 42 U.S.C. � 1320a-7(a)(3), requires the mandatory exclusion from participation in Medicare, Medicaid, and all federal health care programs of 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)) [i.e. covered by section 1128(a)(1)of the Act] 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." The terms of section 1128(a)(3) are restated in somewhat restructured regulatory language at 42 C.F.R. � 1001.101(c). This statutory provision encompasses only felony convictions.

The Act defines "convicted" as including those circumstances :

(1) when a judgment of conviction has been entered against the individual . . . by a . . . State . . . court, regardless of whether . . . the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual . . . by a . . . State . . . court;

(3) when a plea of guilty or nolo contendere by the individual . . . has been accepted by a . . . State . . . court; or

(4) when the individual . . . has entered into participation in a . . . deferred adjudication . . . program where judgment of conviction has been withheld.

Act, section 1128(i)(1)-(4), 42 U.S.C. �� 1320a-7(i)(1)-(4). These definitions are repeated at 42 C.F.R. � 1001.2.

An exclusion based in section 1128(a)(1) or section 1128(a)(3) is mandatory, and the I.G. must impose it for a minimum period of five years. Section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B). The regulatory language of 42 C.F.R. � 1001.102(a) affirms the statutory provision. Although the minimum mandatory period of exclusion is subject to enhancement in some limited and carefully-defined circumstances set out at 42 C.F.R. � 1001.102(b), the I.G. has not sought to enhance the five-year mandatory minimum period in this case. For that reason, I may not consider any of the specific aggravating or mitigating factors set out at 42 C.F.R. � 1001.102(b) and (c).

IV. Discussion

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

A. Petitioner was convicted of a criminal offense as described in sections 1128(a)(1) and 1128(a)(3) of the Act.

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 an offense that falls within the ambit of each of these two sections and, therefore, the I.G. is mandated to exclude Petitioner.

Petitioner was a physical therapist in the State of New York. Petitioner was charged in an Information issued by the United States District Court, Southern District of New York, with one count of conspiracy to commit health care fraud, a Class D felony, in violation of 18 U.S.C. � 371. I.G. Ex. 4; see I.G. Ex. 5. ⁽¹⁾ The information charged that, from in or about 1996 through in or about April 2001, Petitioner was part of a conspiracy to defraud health care benefit programs, namely the Medicare program, no fault and workers' compensation carriers, and private insurance plans, and, in order to obtain payment from the Medicare program and the other benefit programs, Petitioner submitted and caused to be submitted claims seeking reimbursement: (1) for services rendered by unlicensed individuals; and (2) that contained false statements about what services were rendered. I.G. Ex. 4.

On February 20, 2002, Petitioner entered a guilty plea to Count One of the Information. See I.G. Ex. 3, at 1; I.G. Ex. 5. On January 27, 2005, the United States District Court for the Southern District of New York accepted Petitioner's guilty plea, and entered a judgment of conviction. I.G. Ex. 5. The court sentenced Petitioner to three years probation, 200 hours of community service, and an assessment of $100. Id.

I conclude based on my review of the evidence that Petitioner was convicted of an offense that falls within the reach of sections 1128(a)(1) and 1128(a)(3) of the Act.

Petitioner's conviction is shown by I.G. Ex. 5: he entered a guilty plea on February 20, 2002, it was accepted and he was adjudged guilty by the district court, and the court entered judgment of conviction against him on January 27, 2005. These events clearly satisfy the definitions of "convicted" at sections 1128(i)(1), (i)(2), and (i)(3) of the Act.

Petitioner's conviction of the crime described at count one of the Indictment clearly was for an offense described at section 1128(a)(1) of the Act. The Indictment charges that Petitioner was part of a conspiracy "to defraud health care benefit programs, namely the Medicare program . . ." and that "in order to obtain payment from the Medicare program . . . ," he submitted reimbursement claims "for services rendered by unlicensed individuals" and "that contained false statements about what services were rendered." I.G. Ex. 4. There is a direct and obvious nexus or common-sense connection between Petitioner's crime and the delivery of an item or service under the Medicare program. Berton Siegel, D.O., DAB No. 1467 (1994).

Petitioner's conviction also falls under the purview of section 1128(a)(3) of the Act. Section 1128(a)(3) of the Act provides that it applies to felony convictions for conduct occurring after August 21, 1996. According to the Indictment, Petitioner's criminal acts occurred "[f]rom in or about 1996 through in or about April 2001." Petitioner's conviction was therefore for conduct committed after August 21, 1996. Moreover, Petitioner's conviction was for a felony, and, as discussed above, there exists a connection between his criminal acts of defrauding health care benefit programs and the delivery of an item or service under the Medicare program.

B. The five-year period of Petitioner's exclusion is the minimum required by the statute.

An exclusion under either section 1128(a)(1) or section 1128(a)(3) of the Act must be for a period of at least five years. Section 1128(c)(3)(B) of the Act, 42 U.S.C. � 1320a-7(c)(3)(B). Since the five-year period of exclusion proposed in this case is the irreducible minimum required by the statute, it is as a matter of law not unreasonable. 42 C.F.R. � 1001.2007(a)(2). Neither I nor the Departmental Appeals Board (Board) may reduce it. Mark K. Mileski, DAB No. 1945 (2004); Salvacion Lee, M.D., DAB No. 1850 (2002).

Petitioner appears here pro se, and I am cognizant of the Board's reminders, both explicit and implicit, that pro se litigants should be offered "some extra measure of consideration" in developing their records and their cases. Mark K. Mileski, DAB No. 1945; Louis Mathews, DAB No. 1574 (1996); Timothy L. Stern, M.D., DAB No. 1314 (1992); Edward J. Petrus, Jr., M.D., et al., DAB No. 1264 (1991). In his response, Petitioner asserts that he was merely an employee with no knowledge of any fraudulent billing of Medicare services. Petitioner claims that his guilty plea was "an act of legal misguidance." Petitioner's Response at 1. He argues that he should not have listened to his lawyers because they gave him bad advice and were paid by his previous employer. Petitioner also contends that he believes his constitutional rights were violated. Petitioner's Response at 2.

Unfortunately, however real his problems relative to his legal representation, Petitioner does not raise any relevant arguments over which I have jurisdiction or authority. The regulations explicitly preclude my review of the facts underlying his conviction. Furthermore, the regulations prohibit Petitioner from disputing or collaterally attacking in this proceeding his criminal conviction:

When the exclusion is based on the existence of a criminal conviction . . . where the facts were adjudicated and a final decision was made, the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. � 1001.2007(d); Joann Fletcher Cash, DAB No. 1725 (2000); Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Chander Kachoria, R.Ph., DAB No. 1380 (1993).

V. Conclusion

For the reasons set out above, I grant the I.G.'s Motion for Summary Affirmance. The I.G.'s exclusion of Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a period of five years, pursuant to the terms of sections 1128(a)(1) and 1128(a)(3) of the Act, 42 U.S.C. � 1320a-7(a)(1), is thereby sustained.

Alfonso J. Montano

Administrative Law Judge