Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Gilbert Rubin, O.D.,
Petitioner,
- v. -
The Inspector General.
DATE: June 24, 1992
Docket No. C-92-057
DECISION
By letter dated December 9, 1991, Gilbert Rubin, O.D., the Petitioner herein,
was notified by the Inspector
General (I.G.), U.S. Department of Health & Human Services (HHS), that it
had been decided to exclude
him for a period of five years from participation in the Medicare and Medicaid
programs ("Medicaid"
represents those State health care programs mentioned in section 1128(h) of
the Social Security Act (the
Act)). The I.G. explained that the five-year exclusion was mandatory under sections
1128(a)(1) and
1128(c)(3)(B) of the Act because Petitioner had been convicted of a criminal
offense related to the delivery
of an item or service under Medicaid.
Petitioner filed a timely request for review of the I.G.'s action, and the
I.G. moved for summary
disposition.
Because there are no disputed material issues of fact, I have granted the I.G.'s
motion and have decided the
case on the basis of written submissions in lieu of an in-person hearing.
APPLICABLE LAW
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act make it mandatory for any
individual who has been
convicted of a criminal offense related to the delivery of an item or service
under Medicare or Medicaid to
be excluded from participation in such programs, for a period of at least five
years.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/
1. During the period relevant to this decision, Petitioner was a duly licensed
optometrist and Medicaid
provider in the State of New Jersey. I.G. Ex. 4/4.
2. On July 2, 1990, Petitioner pled guilty and was convicted in New Jersey
Superior Court of Medicaid
Fraud (making false claims to get unauthorized or excessive payments from Medicaid
for optical
appliances). I.G. Ex. 1, 2.
3. On August 10, 1990. Petitioner was sentenced to probation for a period of
three years and was also
ordered to make restitution in the amount of $1300. I.G. Ex. 2.
4. Based upon this criminal conviction, the State of New Jersey excluded Petitioner
from participation in
its Medicaid program until the later of the following dates:
a. February 8, 1990, the date of his initial exclusion.
b. The date he is released from probation.
c. The date he makes full restitution of the $1,300 the State found he had
fraudulently
received, including any interest and penalties that may be due.
d. The date he is reinstated by the I.G.
I.G. Ex. 4/17.
5. The Secretary of HHS has delegated to the I.G. the authority to determine
and impose exclusions
pursuant to section 1128 of the Act. 48 Fed. Reg. 21662 (May 13, 1983).
6. On December 9, 1991, Petitioner was notified by the I.G. that it had been
decided to exclude him for a
period of five years from participation in the Medicare and Medicaid programs
because of his conviction of
a criminal offense related to the delivery of an item or service under Medicaid.
7. A criminal conviction for billing Medicaid for items that were not provided
as claimed constitutes false
billing and fraud related to the delivery of an item or service under Medicare
or Medicare, and triggers
mandatory exclusion under section 1128(a)(1).
ARGUMENT
Petitioner seeks to have his period of exclusion reduced to three years and
made retroactive to February
1990 in order to correspond with his New Jersey Medicaid suspension. He contends
that this more lenient
treatment is justified by his previously untainted 51-year practice, his advanced
age, and the small
monetary value of his offense, and the fact that he is one of only four of five
optometrists in Camden, New
Jersey.
DISCUSSION
The first statutory requirement for mandatory exclusion pursuant to section
1128(a)(1) of the Act is that the
individual or entity in question be convicted of a criminal offense under federal
or State law. In the present
case, it is undisputed that Petitioner pled guilty to a crime and was sentenced
by a court of competent
jurisdiction. This satisfies the definition of "convicted" within
the meaning of section 1128(i) of the Act.
I also find that the requirement of section 1128(a)(1) that the criminal offense
leading to the conviction be
related to the delivery of an item or service under Medicare or Medicaid has
been satisfied. Specifically, it
is well-established in decisions by appellate panels of the Departmental Appeals
Board (DAB) that
financial misconduct directed at these programs in the course of the delivery
of items or services
constitutes a program-related offense invoking mandatory exclusion. David D.
De Fries, D.C., DAB 1317
(1992). More narrowly, submitting fraudulent claims to Medicare or Medicaid
has been held to constitute
a clear example of such program-related financial misconduct. Marie Chappell,
DAB CR109 (1990);
Russell E Baisley, et al., DAB CR128 (1991). These holdings correspond closely
to the situation in the
case at hand, in which Petitioner knowingly submitted false and excessive claims
for Medicaid
reimbursement on optical products he had supplied.
Lastly, neither the I.G. nor this judge is authorized to reduce the five-year
minimum mandatory period of
exclusion. Jack W. Greene, DAB CR 19 (1989), aff'd DAB 1078 (1989), aff'd Greene
v. Sullivan, 731 F.
Supp. 835, 838 (E.D. Tenn. 1990). An administrative law judge also lacks the
authority to alter the
effective date of exclusion designated by the I.G. Christino Enriquez, DAB CR119
(1991).
CONCLUSION
Petitioner's conviction requires his exclusion for a period of at least five
years, pursuant to section
1128(a)(1).
____________________________
Joseph K. Riotto
Administrative Law Judge
1. Petitioner and the I.G. submitted briefs and the I.G. supported his brief
with properly authenticated
exhibits. I admitted all of the exhibits into evidence and refer to them herein
as "I.G. Ex.
(number)/(page)."