Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Jane B. Oliver,
Petitioner,
- v. -
The Inspector General.
DATE: August 15, 1991
Docket No. C-369
DECISION
On March 27, 1991, the Inspector General (I.G.) notified
Petitioner that she was being excluded from participation
in Medicare and any State health care program for a
period of five years. 1/ The I.G. told Petitioner that
she was being excluded as a result of her conviction of a
criminal offense related to the delivery of an item or
service under Medicare. Petitioner was advised that the
exclusion of individuals convicted of such an offense is
mandated by section 1128(a)(1) of the Social Security Act
(Act). The I.G. further advised Petitioner that the law
required that the minimum period of such an exclusion be
for not less than five years. The I.G. informed
Petitioner that she was being excluded for the minimum
mandatory period of five years.
Petitioner timely requested a hearing and the case was
assigned to me for a hearing and a decision. The I.G.
moved for summary disposition. Petitioner was afforded
the opportunity to respond to the motion. Petitioner
advised me that she was not filing a response.
I have considered the arguments made by the I.G. in his
motion as well as those made by Petitioner in her hearing
request. I have also considered the undisputed material
facts of this case and applicable law. I conclude that
the five-year exclusion imposed and directed by the I.G.
against Petitioner is mandated by law. Therefore, I
enter summary disposition in favor of the I.G.
ISSUES
The issues in this case are whether Petitioner:
1. was convicted of a criminal offense, within the
meaning of section 1128(a)(1) of the Act; and
2. may prove that mitigating circumstances exist
either to show that the I.G. did not have authority to
impose and direct an exclusion against her or that the
five-year exclusion which was imposed and directed is
unreasonable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. In August 1989, Petitioner was indicted in the United
States District Court for the District of South Carolina.
I.G. Ex. B. 2/
2. The indictment charged that Petitioner knowingly and
willfully made and caused to be made false statements and
representations of material facts in applications for
payments for medical services rendered by a participating
physician under Part B of the Medicare program. I.G. Ex.
B/3.
3. On March 20, 1990, Petitioner was charged in a
criminal information which superseded the indictment
(superseding information) with five counts of making and
causing to be made false statements and representations
of material facts in applications for payments for
medical services rendered by a participating physician
under Part B of the Medicare program. I.G. Ex. A.
4. On June 1, 1990, Petitioner pled guilty to the five
counts of the superseding information. I.G. Ex. D.
5. Petitioner was convicted of a criminal offense
related to the delivery of an item or service under the
Medicare program. Findings 1-4; Social Security Act,
section 1128(a)(1).
6. The Secretary of the Department of Health and Human
Services (Secretary) delegated to the I.G. the authority
to determine, impose, and direct exclusions pursuant to
section 1128 of the Act. 48 Fed. Reg. 21662 (May 13
1983).
7. On March 27, 1991, the I.G. excluded Petitioner from
participating in Medicare and directed that she be
excluded from participating in Medicaid, pursuant to
section 1128(a)(1) of the Act.
8. There are no disputed issues of material fact in this
case and summary disposition is appropriate. Findings 1-
4.
9. The exclusion imposed and directed against Petitioner
by the I.G. is for five years, the minimum period
required under the Act. Social Security Act, sections
1128(a)(1) and 1128(c)(3)(B).
10. Petitioner may not collaterally attack her criminal
conviction in this proceeding. Social Security Act,
section 1128(a)(1).
11. The exclusion imposed and directed against
Petitioner by the I.G. is mandated by law. Findings 5,
9; Social Security Act, section 1128(a)(1).
ANALYSIS
There are no disputed material facts in this case. The
undisputed facts are that on June 1, 1990, Petitioner
pled guilty to the federal crime of making and causing to
be made false statements and representations in claims
for Medicare reimbursement. The I.G. imposed and
directed a five-year exclusion against Petitioner in
March 1991, pursuant to section 1128(a)(1) of the Act.
1. Petitioner was convicted of a criminal offense,
within the meaning of section 1128(a)(1) of the Act.
Section 1128(a)(1) of the Act requires the Secretary (or
his delegate, the I.G.) to exclude from participation in
Medicare, and to direct the exclusion from participation
in Medicaid, of:
[a]ny individual or entity that has been
convicted of a criminal offense related to the
delivery of an item or service under . . .
[Medicare] or under . . . [Medicaid].
Petitioner's conviction for making false statements and
representations in Medicare reimbursement claims
constitutes a conviction of a criminal offense, within
the meaning of section 1128(a)(1). The offense consists
of knowingly filing false Medicare claims. It is a
settled matter that conviction for presentation of false
Medicare or Medicaid claims is a conviction of an offense
related to the delivery of an item or service under
Medicare or Medicaid. Jack W. Greene, DAB App. 1078
(1989), aff'd sub nom. Greene v. Sullivan, 731 F. Supp.
835 and 838 (E.D. Tenn. 1990); Michael Travers, M.D., DAB
App. 1237 (1991). As the appellate panel held in Greene:
[S]ubmission of a bill or claim for Medicaid
reimbursement is the necessary step, following
the delivery of an item or service, to bring
the "item" within the purview of the program.
Id. at 7. The Departmental Appeals Board has also held
that a conviction of a criminal offense is related to the
delivery of an item or service under Medicare or Medicaid
where the victim of the offense is the Medicare or
Medicaid program. Napoleon S. Maminta, M.D., DAB App.
1135 (1990). That was plainly the case here.
2. Petitioner may not prove that mitigating
circumstances exist either to show that the I.G. did not
have authority to impose and direct an exclusion against
her or that the five-year exclusion which was imposed and
directed is unreasonable.
Although Petitioner did not file a response to the I.G.'s
motion for summary disposition, she did file a detailed
statement in her request for a hearing. In that
statement, Petitioner argued that her conduct resulting
in a criminal conviction could in some respect be
explained by extenuating circumstances. Petitioner did
not specifically aver either that the I.G. lacked
authority to impose and direct an exclusion, or that the
exclusion imposed and directed against Petitioner was
unreasonable, due to extenuating circumstances. I infer
from her request that she may have intended to make these
arguments.
I accept Petitioner's assertions as true for purposes of
deciding the I.G.'s motion for summary disposition.
However, they provide no basis for me to find that the
I.G. was without authority to exclude Petitioner or to
reduce the length of the five-year exclusion imposed and
directed against Petitioner by the I.G.
It is settled that a party may not challenge the I.G.'s
authority to impose and direct an exclusion under section
1128 by asserting that he or she is not really guilty of
the offense of which that party stands convicted. The
conviction, and not the underlying conduct, is the
triggering event which mandates the Secretary to impose
and direct an exclusion. The law does not require the
Secretary to look behind the conviction to determine
whether it is valid. It is not relevant to the issue of
the I.G.'s authority that the criminal conviction may
have been defective or that the petitioner subsequently
contends that he or she is not actually guilty of the
offense of which the petitioner was convicted. Andy E.
Bailey, C.T., DAB Civ. Rem. C-110 (1989), aff'd DAB App.
1131 (1990); see John W. Foderick, M.D., DAB App. 1125
(1990).
The Act provides that the Secretary must impose and
direct an exclusion of at least five years against an
individual convicted of a criminal offense related to the
delivery of an item or service under Medicare or
Medicaid. Social Security Act, sections 1128(a)(1) and
1128(c)(3)(B). The law directs an exclusion of at least
five years in such cases regardless of the presence of
extenuating circumstances. The exclusion imposed and
directed against Petitioner is for the five-year minimum
period. Therefore, I may not consider Petitioner's claim
of extenuating circumstances as a legitimate basis to
modify the exclusion imposed and directed against her by
the I.G.
CONCLUSION
Based on the undisputed material facts and the law, I
conclude that the five-year exclusion from participating
in Medicare and Medicaid imposed and directed against
Petitioner by the I.G. was mandated by sections
1128(a)(1) and 1128(c)(3)(B) of the Act. Therefore, I
enter summary disposition in favor of the I.G.,
sustaining the five-year exclusion.
_______________________
Steven T. Kessel
Administrative Law Judge
1. "State health care program" is defined by section
1128(h) of the Social Security Act to cover three types
of federally-financed health care programs, including
Medicaid. I use the term "Medicaid" hereafter to
represent all State health care programs from which
Petitioner was excluded.
2. The I.G. attached four exhibits to his motion,
which he designated as Exhibits "A" through "D." I refer
to the I.G.'s exhibits as "I.G. Ex. (letter
designation)/(page)." Petitioner has not disputed either
the authenticity of these exhibits or the I.G.'s
recitation of the material facts in support of his
motion. I accept the I.G.'s representation of material
facts as undisputed. For purposes of creating a record
in this case, I admit the I.G.'s exhibits "A" through "D"
into evidence.