$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Andre W. Gilmore,
Petitioner,
- v. -
The Inspector General.
DATE: June 29, 1995
Docket No. C-94-441
Decision No. CR383
DECISION
By letter dated August 30, 1994, the Inspector General (I.G.) of
the United States Department of Health and Human Services (DHHS)
notified Andre W. Gilmore (Petitioner), that he was being excluded
from participation in the Medicare, Medicaid, Maternal and Child
Health Services Block Grant and Block Grants to States for Social
Services programs for a period of five years. 1/ The I.G. advised
Petitioner that he was being excluded as a result of his conviction
in the Washington State Superior Court of a criminal offense
related to the delivery of an item or service under Medicare. The
I.G. advised Petitioner that the exclusion of individuals convicted
of such program-related offenses is mandated by section 1128(a)(1)
of the Social Security Act (Act). The I.G. further advised
Petitioner that for exclusions imposed pursuant to section
1128(a)(1) of the Act, section 1128(c)(3)(B) requires a five-year
minimum period of exclusion.
By letter dated September 19, 1994, Petitioner requested a hearing
before an administrative law judge. By letter dated October 25,
1994, Petitioner submitted a 29 page document to support his
request for a hearing.
I convened a prehearing conference on November 9, 1994. During the
conference, I identified the document submitted by Petitioner on
October 25, 1994 as P. Ex. 1. The I.G. did not contest the
admissibility of this exhibit, and I admitted P. Ex. 1 into
evidence. November 16, 1994 Order and Schedule for Filing Briefs
and Documentary Evidence (November 16, 1994 Order) at p. 3.
During the prehearing conference, Petitioner admitted that: (1) he
was convicted of a criminal offense, and (2) the criminal offense
of which he was convicted was related to the delivery of an item or
service under Medicare or Medicaid. The parties agreed that, to
the extent that there are no genuine issues of material fact, there
was no need for an in-person hearing. They agreed to proceed by
written submissions. Accordingly, I established a schedule for the
parties to file written submissions in my November 16, 1994 Order.
In addition, I memorialized Petitioner's admissions in my November
16, 1994 Order. Petitioner has not disagreed or retreated from
these admissions at any time during this proceeding.
The I.G. filed a brief in support of a motion for summary
disposition. The I.G. did not offer any evidentiary materials into
evidence. Petitioner filed a cross-motion for summary disposition,
accompanied by a brief and one exhibit. By letter dated March 30,
1995, I identified this exhibit as P. Ex. 2.
The I.G. filed a reply brief. The I.G. did not contest the
admissibility of P. Ex. 2, and I admit it into evidence.
I have considered the parties' arguments, supporting exhibits, and
the applicable law. I conclude that there are no material factual
issues in dispute (i.e., the only matter to be decided is the legal
significance of the undisputed facts). I conclude also that
Petitioner is subject to the minimum mandatory exclusion provisions
of sections 1128(a)(1) and 1128(c)(3)(B) of the Act, and I affirm
the I.G.'s determination to exclude Petitioner from participation
in Medicare and Medicaid for a period of five years.
FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCLs)
1. Petitioner was convicted of a criminal offense in Washington
State Superior Court. November 16, 1994 Order at p. 2; P. Ex. 2.
2. The criminal offense of which Petitioner was convicted is
related to the delivery of an item or service under Medicare or
Medicaid. November 16, 1994 Order at p. 2.
3. The Secretary of DHHS has delegated to the I.G. the authority
to determine, impose, and direct exclusions pursuant to section
1128 of the Act. 48 Fed. Reg. 21662 (1983).
4. On August 30, 1994, the I.G. excluded Petitioner from
participating in Medicare and directed that he be excluded from
participating in Medicaid for a period of five years, pursuant to
section 1128(a)(1) of the Act.
5. Section 1128(a)(1) of the Act requires the I.G. to exclude
Petitioner from participating in Medicare and Medicaid.
6. The minimum mandatory period of exclusion pursuant to section
1128(a)(1) is five years. Act, section 1128(c)(3)(B).
7. The I.G. properly excluded Petitioner from participation in
Medicare and Medicaid for a period of five years pursuant to
sections 1128(a)(1) and 1128(c)(3)(B) of the Act. FFCLs 1 - 6.
8. I do not have the authority to reduce a five-year minimum
exclusion mandated by sections 1128(a)(1) and 1128(c)(3)(B) of the
Act.
9. The determination of the I.G. to impose and direct a five-year
exclusion in this case does not violate the prohibition against
double jeopardy under either the United States Constitution or the
Washington State Constitution.
10. I do not have the authority to consider a request for a waiver
of Petitioner's exclusion.
DISCUSSION
Section 1128(a)(1) of the Act requires exclusions for individuals
convicted of offenses related to the delivery of items or services
under Medicare or Medicaid. The law not only mandates exclusions
for individuals convicted of program-related offenses, it requires
that the term of such exclusions be for at least five years. Act,
section 1128(c)(3)(B).
The material facts of this case are not in dispute. Petitioner
admitted during the November 9, 1994 prehearing conference that he
was convicted of a criminal offense. FFCL 1. Petitioner admitted
also during the same conference that the criminal offense of which
he was convicted is related to the delivery of an item or service
under Medicare or Medicaid. FFCL 2. Since Petitioner was
convicted of a criminal offense and it was related to the delivery
of an item or service under Medicare or Medicaid, the I.G. is
required by law to exclude Petitioner for a minimum of five years.
Petitioner's principal argument is that application of the
mandatory exclusion provisions to this case violates the
prohibition against double jeopardy contained in the United States
Constitution and in the Washington State Constitution. Petitioner
argues that the double jeopardy clause found in both the United
States Constitution and the Washington State Constitution prohibits
multiple punishments for the same offense. Petitioner states that
he was prosecuted and punished in State court for a criminal
offense. Later, the I.G. excluded him for the same criminal
offense. Petitioner contends that:
This is not a single coordinated prosecution, but instead
involves two separate efforts to punish the defendant. The Double
Jeopardy Clause prohibits this type of action.
Petitioner's brief in support of cross-motion for summary
disposition at p. 10.
The purpose of a minimum mandatory exclusion imposed pursuant to
sections 1128(a)(1) and 1128(c)(3)(B) is remedial, not punitive.
The minimum mandatory exclusion provisions serve to protect
beneficiaries and recipients from an individual or entity whose
trustworthiness Congress has deemed questionable, based on that
individual's or entity's conviction of a program-related crime.
Federal courts have specifically found that exclusions under
section 1128 are remedial in nature, rather than punitive, and do
not violate the prohibition against double jeopardy. Greene v.
Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); Manocchio v.
Kusserow, 961 F.2d 1539 (11th Cir. 1992). The Greene court noted
the "apt comparison between the exclusion remedy and professional
license revocations for lawyers, physicians, and real estate
brokers which have the function of protecting the public and have
routinely been held not to violate the double jeopardy clause."
731 F. Supp. 838, 840. In view of the remedial nature of the
exclusion, I reject Petitioner's argument that his exclusion
violates the prohibition against double jeopardy.
Petitioner requests also that consideration be given to reducing
the length of his exclusion in light of the circumstances of this
case. He states that he cooperated with the authorities in the
underlying criminal proceeding and that he entered into a plea
agreement in which he agreed to divest himself of the portion of
his business involving Medicare and Medicaid. He states that since
he entered into the plea agreement on April 12, 1993, he has not
been a provider of Medicare or Medicaid services. Thus, he argues
that the length of his exclusion should be reduced because he has
been constructively excluded since April 12, 1993. Petitioner
states that he has learned his lesson and that safeguards are now
in place to prevent any recurrence of his criminal misconduct.
Petitioner states also that he is a veteran of the Vietnam conflict
and that he lost his left leg in combat. He states that his injury
provides him with a unique ability to deal with other amputees in
need of prosthetic devices.
As I held above, sections 1128(a)(1) and 1128(c)(3)(B) require the
Secretary to impose and direct an exclusion of at least five years
against an individual who is convicted of a criminal offense
related to the delivery of an item or service under Medicare or
Medicaid. I do not have the authority to reduce the minimum
mandatory exclusion imposed and directed against Petitioner. Thus,
I am without the authority to consider the equitable arguments
raised by Petitioner regarding the effect the unique circumstances
of his case should have on the length of his five-year exclusion.
In the alternative, Petitioner requests that his exclusion be
waived on the grounds that he provides specialized services to the
community. As I stated in my November 16, 1994 Order, I do not
have the authority to grant Petitioner's request that his exclusion
be waived. There is nothing in the law or regulations which either
states or suggests that the Secretary has delegated to
administrative law judges the authority to waive the five-year
minimum exclusion mandated by sections 1128(a)(1) and 1128(c)(3)(B)
of the Act. Yvon Nazon, M.D., DAB CR169 (1991).
CONCLUSION
Based on the law and the undisputed material facts in this case, I
conclude that the I.G. properly excluded Petitioner from Medicare
and Medicaid pursuant to section 1128(a)(1) of the Act. I further
conclude that the five-year minimum period of exclusion imposed and
directed against Petitioner is mandated by section 1128(c)(3)(B) of
the Act. Therefore, I sustain the exclusion.
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."