DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of: Napoleon S. Maminta, M.D., Petitioner,
- v. -
The Inspector General.
DATE: July 17, 1989
Docket No. C-81
ORDER ENTERING SUMMARY DECISION
IN FAVOR OF INSPECTOR GENERAL AND DISMISSING
PETITIONER'S REQUEST FOR HEARING AS TO ISSUE OF
REASONABLENESS OF LENGTH OF EXCLUSION
On October 26, 1988, the Inspector General (the I.G.) notified Petitioner that
he was being excluded from
participation in Medicare and State health care programs for ten years. The
I.G. told Petitioner that the
exclusions were mandated by section 1128(a)(1) of the Social Security Act, 42
U.S.C. 1320a-7(a)(1), and
resulted from Petitioner's conviction in federal court of a criminal offense
related to the delivery of an item
or service under the Medicare program. The I.G. stated that the law required
exclusions of at least five
years for those parties excluded pursuant to 42 U.S.C. 1320a-7(a). The I.G.
advised Petitioner that, in light
of circumstances enumerated in the notice, he was being excluded for ten years.
Petitioner timely requested a hearing. His request contested the I.G.'s determination
that Petitioner's
conviction was related to the delivery of an item or service under the Medicare
program. Petitioner also
contested the length of the exclusions imposed on him.
The I.G. filed a motion, which among other things, requested that I rule in
the I.G.'s favor on the issue of
whether Petitioner was convicted of an offense related to the delivery of an
item or service under the
Medicare program, within the meaning of 42 U.S.C. 1320a-7(a)(1). This motion
was opposed by
Petitioner. On May 5, 1989, I issued a Ruling in this case which decided one
of the issues in this case in
favor of the I.G. I ruled that, inasmuch as Petitioner had been convicted of
an offense related to the
delivery of an item or service under the Medicare program, the law mandated
his exclusion from Medicare
and State health care programs for a minimum of five years. I also ruled that,
although the law required
that Petitioner be excluded for a minimum of five years, Petitioner was entitled
to a hearing on the issue of
whether the ten-year exclusions imposed and directed against him by the I.G.
are reasonable.
Shortly after issuing my Ruling, I conducted a prehearing conference to establish
a schedule for holding a
hearing on the issue of the reasonableness of the ten year exclusions imposed
and directed by the I.G.
Petitioner advised me at this conference that he might request a dismissal as
to the issue of the
reasonableness of the length of the exclusions imposed on him so that he could
appeal as a final decision
that portion of my May 5, 1989, Ruling which held that Petitioner had been convicted
of an offense related
to the delivery of an item or service under the Medicare program.
On June 2, 1989, I issued a Prehearing Order which provided that if Petitioner
requested a dismissal as to
the issue of the reasonableness of the length of the exclusion, and I accepted
that request, I would issue a
final decision: making appropriate findings of fact and conclusions of law;
incorporating my May 5 Ruling
into the final decision; and entering an order summarily disposing of the issue
of the reasonableness of the
length of the exclusion on the basis that the Petitioner was no longer requesting
a hearing on that issue.
On June 27, 1989, Petitioner filed a request that I issue an Order dismissing
his request for hearing with
regard to the issue of the reasonableness of the length of his Medicare exclusion.
His attorney later
clarified the request to apply to both exclusions. The I.G. has not opposed
Petitioner's request.
In light of the foregoing, I enter the following Decision and Order:
A. I enter summary decision in favor of the I.G. on the issue of whether Petitioner
was convicted of an
offense related to the delivery of an item or service under the Medicare program.
I conclude that 42 U.S.C.
1320a-7a(1) requires the I.G. to exclude Petitioner from participation in the
Medicare program and direct
that he be excluded from participation in State health care programs, for at
least five years. In connection
with this decision, I make the following Findings of Fact and Conclusions of
Law:
1. Petitioner is a doctor of medicine. P.'s Memorandum at 7.
2. Petitioner received an envelope in February, 1987, addressed to a laboratory
he operated and
sent by a Medicare carrier, which contained documents, including a Medicare
reimbursement check. P.
Ex. 1; I.G. Ex. 6; P.'s Memorandum at 7.
3. The reimbursement check, in the amount of $8,495.92, was payable to a party
other than
Petitioner or an entity he operated, and was sent to him by mistake. I.G. Ex.
6; P.'s Memorandum at 7.
4. Petitioner endorsed the check with the name of the payee and his own name,
and deposited the
proceeds in his own bank account. I.G. Ex. 6; P.'s Memorandum at 7.
5. On May 20, 1988 Petitioner pleaded guilty to a charge of taking a check
from an authorized
depository for mail before it had been delivered to the addressee, in violation
of 18 U.S.C. 1702. I.G. Ex.
4; P.'s Memorandum at 7. His sentence included three years' probation. I.G.
Ex. 4.
6. The offense to which Petitioner pleaded guilty is a criminal offense related
to the delivery of an
item or service under the Medicare program. 42 U.S.C. 1320a-7(a)(1).
7. Petitioner's guilty plea is a conviction as defined by 42 U.S.C. 1320a-7(i).
8. The minimum mandatory exclusion period is five years for an individual
who has been
excluded based on conviction of a criminal offense related to the delivery of
an item or service under
Medicare. 42 U.S.C. 1320a-7(c)(3)(B).
9. The Secretary delegated to the I.G. the duty to exclude from participation
in Medicare, and to
direct the exclusion from participation in State health care programs, persons
whose exclusion is required
or permitted under 42 U.S.C. 1320a-7. 48 Fed. Reg. 21662 (May 13, 1983).
10. The I.G. excluded Petitioner from participation in the Medicare program,
and directed that
Petitioner be excluded from participation in State health care programs, for
ten years.
11. The law requires that Petitioner be excluded from participation in Medicare
and State health
care programs for at least five years. 42 U.S.C. 1320a-7a(1); (c)(3)(B).
I adopt as my rationale for this decision that part of my May 5, 1989 Ruling
which addresses the merits of
the I.G.'s motion for partial summary disposition (at pages 2-6).
B. I Order that Petitioner's request for hearing on the issue of the reasonableness
of the ten-year exclusions
from participation in Medicare and State health care programs imposed and directed
against him be
dismissed. The ten-year exclusions remain in effect.
________________________
Steven T. Kessel
Administrative Law Judge