Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Roger Alan Johnson, M.D., Petitioner,
- v. -
The Inspector General.
DATE: December 14, 1992
Docket No. C-92-071
Decision No. CR246
DECISION
By letter dated January 14, 1992, Roger Alan Johnson, M.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 program
and from participation in
the the State health care programs mentioned in section 1128(h) of the Social
Security Act (Act). (Unless
the context indicates otherwise, I use the term "Medicaid" in this
Decision when referring to the State
programs.) 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 or Medicare.
Petitioner filed a timely request for review of the I.G.'s action, and the
I.G. moved for summary
disposition.
Petitioner moved for, and was granted, the opportunity to present oral argument.
The parties presented their
arguments by telephone on October 14, 1992.
I have determined that there are no material and relevant factual issues in
dispute (i.e., the only matter to be
decided is the legal significance of the undisputed facts). Thus, I have decided
the case on the basis of
written submissions in lieu of an in-person hearing. I have decided the motion
in favor of the I.G.,
upholding the I.G.'s determination to exclude Petitioner from participation
in the Medicare and Medicaid
programs for a period of five years.
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.
Section 1128(b) permits, but does not mandate, the exclusion of any person
whom the Secretary of HHS
concludes is guilty, or has been convicted, of health care related fraud, kickbacks,
false claims, or similar
activities. It incorporates, as bases for exclusion, offenses described in sections
1128A and 1128B of the
Act.
ARGUMENT
Petitioner asserts that the statutory terms "conviction" and "criminal
offense," in section 1128(a) of the Act,
are unconstitutionally vague (by this, he means that he was not warned about
the effect that a guilty plea
would have on his career); that the exclusion statute herein unconstitutionally
infringes upon State
sovereignty by "enhancing" penalties, thereby interfering with the
States' rights under the Tenth
Amendment to make their own decisions as to the hierarchy of penalties; and
that the I.G.'s unreasonable
delay in initiating his exclusion precludes the present action.
If he is subject to an exclusion, Petitioner argues, the controlling law should
be that which authorizes
permissive or discretionary exclusions (section 1128(b) of the Act) rather than
the mandatory exclusion
section (1128(a)).
FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/
1. It is undisputed that, during the period relevant to this case, Petitioner
was a duly licensed physician
(psychiatrist) in the State of Minnesota. I.G. Exhibit (Ex). 3.
2. Petitioner was indicted for the crime of Theft By False Representation,
based upon his having allegedly
submitted false claims (billing for non-compensable services or for therapy
or office visits which never
occurred) for Medicaid reimbursement during the years 1985 and 1986. I.G. Ex.
1; I.G. Ex. 3.
3. On February 15, 1990, Petitioner pled guilty in the Ramsey County District
Court to the offense[s] with
which he was charged.
I.G. Ex. 1, 2.
4. The court found Petitioner guilty of theft by false representation. It sentenced
him to a ten-year period
of probation, a fine, restitution to the State, and community service. I.G.
Ex. 2, 4.
5. The State of Minnesota excluded Petitioner from participation in its Medicaid
program for a period of
five years.
6. 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).
7. By letter dated January 14, 1992, 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 he had
been convicted of a criminal offense related to the delivery of items or services
under Medicare or
Medicaid.
8. An administrative law judge has no authority to decide whether an exclusion
is unconstitutional.
9. The criminal offense for which Petitioner was convicted -- fraudulently
failing to provide items or
services for which Medicaid/Medicare was billed -- is related to the delivery
of an item or service under
Medicare or Medicaid and calls for mandatory exclusion.
10. Where a criminal conviction satisfies the requirement of section 1128(a)(1)
that it be related to the
delivery of an item or service under Medicare or Medicaid, then section 1128(a)(1)
is controlling and the
I.G. must impose the mandatory exclusion which the statute provides. The fact
that the criminal conviction
may appear also to fall within the broader criteria for permissive exclusion
found in section 1128(b)(1) is
irrelevant.
11. A defendant in a criminal proceeding does not have to be advised of all
the possible consequences
(such as being temporarily barred from participation in a government program)
which may flow from his
plea of guilty; he need be informed only of the direct and immediate results.
12. Petitioner was convicted of a criminal offense related to the delivery
of items or services under the
Medicare or Medicaid programs. Consequently, his exclusion from such programs
for a minimum period
of five years is mandated pursuant to sections 1128(a)(1) and 1128(c)(3)(B).
DISCUSSION
Firstly, I must note that I, as an administrative law judge, have no authority
to decide whether the
exclusion being directed against the Petitioner herein is unconstitutional.
See, e.g., John A. Crawford, Jr.,
M.D., DAB 1324 (1992).
The section of the Act under which the I.G. seeks Petitioner's exclusion, 1128(a)(1),
contains two
requirements. It requires that an individual (1) be convicted of a criminal
offense, and (2) that such
conviction be related to the delivery of an item or service under Medicare or
Medicaid. In the case at hand,
Petitioner pled guilty and a judgment was entered against him. This, clearly,
satisfies the definition of
"conviction" set forth in section 1128(i) of the Act.
I find also 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 Departmental Appeals Board (DAB) precedent that submitting
fraudulent Medicaid
claims constitutes a program-related offense which justifies mandatory exclusion.
Jack W. Greene, DAB
CR19 (1989), aff'd, DAB 1078 (1989), aff'd, Greene v. Sullivan, 731 F. Supp.
835, 838 (E.D. Tenn. 1990).
Criminal fraud consisting of a failure to provide items or services for which
Medicaid/Medicare will be
billed has been held to be directly on point with this rule, constituting a
program-related offense which
requires exclusion. Francis Shaenboen, R.Ph., DAB CR97 (1990), aff'd, DAB 1249
(1991).
Petitioner argues additionally that the I.G. should have treated his criminal
conduct as grounds for a
permissive exclusion action. In this regard, the appellate decision rendered
by the appellate panel in
Samuel W. Chang, M.D., DAB 1198, at 8 (1990), held that "the permissive
exclusion provisions of section
1128(b) apply to convictions for offenses other than those related to the delivery
of an item or service
under either the Medicare or Medicaid . . . programs."
An appellate panel further considered the relationship between section 1128(a)(1)
and section 1128(b)(1)
in Boris Lipovsky, M.D., DAB 1363, at 7-12 (1992). It concluded that where a
criminal conviction
satisfies the requirement of section 1128(a)(1) that it be related to the delivery
of an item or service under
Medicare or Medicaid, then section 1128(a)(1) is controlling and the I.G. must
impose the mandatory
exclusion which the statute provides. The fact that the criminal conviction
may appear also to fall within
the broader criteria for permissive exclusion found in section 1128(b)(1) is
irrelevant. Thus, the I.G. did
not err in acting to exclude Petitioner pursuant to the mandatory exclusion
provisions of the law.
Petitioner asserts that had he known the consequences of the plea he entered,
he would have pled
differently. However, a defendant in a criminal proceeding does not have to
be advised of all the possible
consequences (such as being temporarily barred from participation in a government
program) which may
flow from his plea of guilty; he need be informed only of the direct and immediate
results. See U.S. v.
Suter, 755 F.2d 523, 525 (7th Cir. 1985).
As to Petitioner's contention that the I.G. did not act within a reasonable
time to effect his exclusion, an
administrative law judge has no authority to alter the effective date of exclusion
designated by the I.G. as a
remedy for the latter's tardiness or misfeasance. Samuel W. Chang, M.D., DAB
1198 (1990); Christino
Enriquez, M.D., DAB CR119 (1991). Indeed, since the exclusion of providers from
the Medicare and
Medicaid programs is expressly required by statute where there has been a relevant
criminal conviction,
neither the I.G. nor a judge can change or reduce the five-year minimum mandatory
period of exclusion.
Jack W. Greene, DAB CR19 (1989), aff'd, DAB 1078 (1989), aff'd, Greene v. Sullivan,
731 F. Supp. 835,
838, (E.D. Tenn. 1990).
CONCLUSION
Petitioner is required to be excluded for a period of five years pursuant to section 1128(a)(1) of the Act.
____________________________
Joseph K. Riotto
Administrative Law Judge
1. Petitioner and the I.G. both submitted argument and documentary evidence.
I admitted all of the items
offered.