$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Doina M. Buzea, M.D., Petitioner,
- v. -
The Inspector General.
DATE: April 18, 1994
Docket No. C-93-126
Decision No. CR310
DECISION
By letter dated July 27, 1993, Doina M. Buzea, 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 Petitioner for a period of five years from
participation in the Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social Services
programs. 1/ The I.G.'s rationale was that exclusion, for at least
five years, is mandated by sections 1128(a)(1) and 1128(c)(3)(B) of
the Social Security Act (Act) because Petitioner had been convicted
of a criminal offense related to the delivery of an item or service
under Medicare.
Petitioner filed a timely request for review of the I.G.'s action.
The I.G. moved for summary disposition.
Because I have determined that there are no facts of decisional
significance genuinely in dispute, and that the only matters to be
decided are the legal implications of the undisputed facts, I have
decided the case on the basis of the parties' written submissions.
I affirm 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.
FINDINGS OF FACT AND CONCLUSIONS OF LAW 2/
1. During the period relevant to this case, Petitioner, a
physician, was employed by the Greenwich Acupuncture Center (GAC).
I.G. Ex. 2 at 2.
2. Petitioner was charged, by means of a criminal information,
with the federal misdemeanor offense of making a false statement
in a claim for Medicare reimbursement, in violation of Title 42 of
the United States Code (42 U.S.C. 1320a-7b(a)(1)(ii)). I.G. Ex.
2.
3. Petitioner appeared in the United States District Court,
District of Connecticut, and, pursuant to a plea agreement, entered
a guilty plea to count one of the information - making a false
statement in a claim for Medicare reimbursement. I.G. Exs. 1, 3.
4. The basis of the criminal charge brought against Petitioner
was that, while a GAC employee, she caused GAC to submit a $1500
bill for Medicare reimbursement which contained a "false statement
and representation of a material fact" to HHS and its contractual
intermediary. The bill was false in that it alleged that
Petitioner had "personally performed or personally supervised"
physical therapy services furnished to a Medicare patient, when, in
fact, such services "could not have been personally performed or
personally supervised" by Petitioner because they occurred before
Petitioner's employment by GAC. I.G. Ex. 2 at 4.
5. On January 27, 1993, the court issued a judgment against
Petitioner, noting Petitioner's guilty plea and declaring
Petitioner guilty, as charged, of the criminal offense of making a
false statement in a claim for Medicare reimbursement. I.G. Ex. 1.
6. The court suspended imposition of a term of imprisonment and,
instead, sentenced Petitioner to a one-year period of probation and
fined her $2,000. The court also ordered Petitioner to pay a
special assessment of $25.00. I.G. Ex. 1.
7. Petitioner's guilty plea, and the actions taken by the court
indicating acceptance of her plea, constitute a "conviction" within
the meaning of section 1128(i)(3) of the Act. FFCL 3, 5-6.
8. For a conviction to subject an individual or entity to
exclusion under section 1128(a)(1) of the Act, there must be some
nexus or common sense connection between the criminal offense for
which the individual or entity has been convicted and the delivery
of an item or service under the Medicare or Medicaid programs.
Berton Siegel, D.O., DAB 1467, at 5 (1994).
9. There exists a nexus or common sense connection between
Petitioner's conviction for making a false statement in a claim for
Medicare reimbursement, and the delivery of an item or service
under Medicare. FFCL 2-4.
10. The criminal offense which provided the basis for
Petitioner's conviction constitutes a criminal offense related to
the delivery of an item or service under Medicare, within the
meaning of section 1128(a)(1) of the Act. FFCL 2-5, 7-9.
11. The Act requires an exclusion of not less than five years if
an individual or entity is convicted of a criminal offense related
to the delivery of an item or service under Medicare. Act,
sections 1128(a)(1), 1128(c)(3)(B).
12. Neither the I.G. nor an administrative law judge is authorized
to reduce the length of a mandatory minimum five-year period of
exclusion. Act, sections 1128(a)(1), 1128(c)(3)(B).
13. The exclusion imposed and directed against Petitioner by the
I.G. is mandated by law. Act, sections 1128(a)(1), 1128(c)(3)(B).
PETITIONER'S ARGUMENT
Petitioner, a licensed physician, was employed by GAC between
approximately May 1987 and April 1989. FFCL 1; I.G. Ex. 2 at 2.
Petitioner asserts that she "did not profit from the activities" of
GAC. P. Br. at 2. Petitioner asserts that her status was merely
that of an employee, following the directions of her superiors, who
"manipulated" her. P. Br. at 2-4; September 23, 1993 letter from
Petitioner's attorney. Petitioner further points out that,
subsequent to her involvement with GAC, she spent approximately
four years providing medical care to "chronically ill and
multi-developmentally disabled" individuals. P. Br. at 2; P. Ex.
3. Thus, Petitioner asserts that, because of the minimal extent of
her involvement in the criminal activity, her cooperation with
prosecutors in the GAC case, and the value to society of the care
she renders, "[n]either the Office of the United States Attorney
nor the investigative branch of the Inspector General's Office"
favors her exclusion. P. Br. at 3. Petitioner argues that, under
these circumstances, there is no basis for the Secretary of HHS to
adopt a more punitive policy and exclude her from the Medicare and
Medicaid programs.
Further, Petitioner insists that depriving her of her profession
would be so severe and disproportionate a sanction as to violate
the spirit of the plea agreement entered into by her and the
federal government. P. Br. at 5.
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 must have been convicted of a criminal offense under
federal or State law. In the case at hand, I find that Petitioner
pled guilty to a federal misdemeanor offense. FFCL 2-3, 5. The
court entered judgment against her and imposed a period of
probation and a fine. FFCL 5-6. Petitioner's guilty plea, and the
actions taken by the court indicating acceptance of her plea,
constitute a "conviction" for purposes of the federal mandatory
exclusion law. Act, section 1128(i)(3); FFCL 7.
I find further that the second requirement for mandatory exclusion
pursuant to section 1128(a)(1) -- that the criminal offense leading
to the conviction be related to the delivery of an item or service
under the Medicare or Medicaid programs -- has been satisfied here.
For a conviction to subject an individual or entity to exclusion
under section 1128(a)(1) of the Act, there must be some nexus or
common sense connection between the criminal offense for which the
individual or entity has been convicted and the delivery of an item
or service under the Medicare or Medicaid programs. FFCL 8. Here,
count one of the information, the count to which Petitioner pled
guilty, explicitly stated that Petitioner had made "a false
statement and representation of a material fact in a claim for a
Medicare payment in the amount of $1500 under the Medicare Program
Part B in connection with the furnishing of services" to a Medicare
patient. 3/ FFCL 3-4; I.G. Ex. 2 at 4. The bill was false in that
it alleged that Petitioner had "personally performed or personally
supervised" physical therapy services furnished to a Medicare
patient, when, in fact, such services "could not have been
personally performed or personally supervised" by Petitioner
because they occurred before Petitioner's employment by GAC. FFCL
4.
The language of the count to which Petitioner pled guilty plainly
establishes a direct connection between the criminal offense for
which Petitioner was convicted and the Medicare program. Moreover,
because Petitioner's false statement and representation in the
claim for Medicare reimbursement related to the alleged furnishing
of physical therapy services by Petitioner to a Medicare patient,
I find that there exists a nexus or common sense connection between
the criminal offense for which Petitioner was convicted and the
delivery of an item or service under Medicare. FFCL 9. Further,
as an appellate panel of the DAB pointed out in Niranjana B.
Parikh, M.D., DAB 1334 (1992), the Board "has consistently
recognized common sense connections between an offense and the
delivery of an item or service, even if the individual at issue did
not physically deliver the item or service." Id. at 5. In
particular, filing fraudulent Medicare or Medicaid claims has been
held to constitute program-related misconduct. Jack W. Greene, DAB
CR19 (1989), aff'd, DAB 1078 (1989), aff'd sub nom. Greene v.
Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990).
Thus, I find that the criminal offense which provided the basis for
Petitioner's conviction constitutes a criminal offense related to
the delivery of an item or service under Medicare, within the
meaning of section 1128(a)(1). FFCL 10.
Petitioner's equitable arguments (for example, that the seriousness
of her offense should be evaluated in light of her positive
contributions to society) cannot prevail in this forum. The Act
requires an exclusion of not less than five years if an individual
is convicted of a criminal offense related to the delivery of an
item or service under Medicare. Act, sections 1128(a)(1),
1128(c)(3)(B); FFCL 11. As the I.G. has excluded Petitioner for
the minimum mandatory period only, I am not authorized under the
regulations to consider her cooperation with the federal government
in its prosecution of GAC and the individuals who owned and
operated it. A mandatory exclusion pursuant to sections 1128(a)(1)
and 1128(c)(3)(B) of the Act is not a matter of discretion.
Lastly, Petitioner's contention that a five-year exclusion would be
incompatible with the plea agreement she negotiated with the
federal government is not persuasive. P. Br. at 5. First, in
determining whether to exclude Petitioner, the Secretary of HHS is
obliged to follow the clear intent of Congress requiring exclusions
of not less than five years in cases such as the one at hand,
regardless of what agreements might have been entered into by a
federal prosecutor. Second, here the agreement itself warned
Petitioner that she might encounter adverse "collateral
consequences" because of her plea; it in no way purported to
immunize her from such adverse consequences. I.G. Ex. 3 at 3-4.
CONCLUSION
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that the
Petitioner herein be excluded from the Medicare and Medicaid
programs for a period of at least five years because of her
criminal conviction for making a false statement in a claim for
Medicare reimbursement, which conviction is related to the delivery
of an item or service under that program. FFCL 11. Further,
neither the I.G. nor an administrative law judge is authorized to
reduce the five-year mandatory minimum exclusion. Greene, DAB
CR19, at 12-14 (1989); Stanley H. Guberman, D.C., DAB CR111, at 9
(1990) (citing Samuel W. Chang, M.D., DAB 1198 (1990)); FFCL 12.
The five-year exclusion is, therefore, sustained.
__________________________
Joseph K. Riotto
Administrative Law Judge
1. In this decision, I refer to all programs from which
Petitioner has been excluded, other than Medicare, as "Medicaid."
2. The parties' briefs and my findings of fact and conclusions
of law will be cited as follows:
I.G.'s Brief I.G. Br. (at page)
Petitioner's Brief P. Br. (at page)
My Findings and Conclusions FFCL
The I.G. submitted three exhibits. I admit I.G. exhibits 1-3 into
evidence. I cite the I.G.'s exhibits as "I.G. Ex. (number) (at
page)." Petitioner submitted four exhibits. I admit Petitioner's
exhibits 1-4 into evidence. I cite Petitioner's exhibits as "P.
Ex. (number) (at page)."
3. The patient's name has been omitted for the sake of privacy.