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Date: January 29, 1999

In the Case of:

Daniel J. Vossman, R.Ph.,
Petitioner,

- v. -

The Inspector General.

Docket No. C-98-293
Decision No. CR570

By letter dated February 27, 1998, Daniel J. Vossman, R.Ph., the Petitioner herein, was notified by the Inspector General (I.G.), U.S. Department of Health and Human Services (HHS), that it had been decided to exclude him 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. explained that the five-year exclusion was being imposed pursuant to section 1128(a)(1) 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 the Medicaid program.

Petitioner filed a request for review of the I.G.'s action. The I.G. moved for summary disposition. Because I have determined that there are no material and relevant factual issues in dispute (the only matter to be decided is the legal significance of the undisputed facts), I have decided the case on the basis of the documentary record in lieu of an in-person hearing.

The I.G. submitted a brief in this matter. The I.G. also submitted five proposed exhibits (I.G. Exs. 1-5). Petitioner did not object to these proposed exhibits and I accept into evidence I.G. Exs. 1-5. Petitioner did not file a brief in response to the I.G.'s brief, nor did he submit any proposed exhibits.

I grant the I.G.'s motion for summary disposition. I affirm the I.G.'s determination to exclude Petitioner from participation in the Medicare and Medicaid programs for a period of five years.

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.

Petitioner contends in general terms that he is not subject to exclusion under section 1128(a)(1) of the Act.

1. During the period relevant to this case, Petitioner was a pharmacist in the State of Missouri. I.G. Ex. 1.

2. On November 14, 1996, the State of Missouri filed a felony information in the Circuit Court of Camden County, Missouri, charging Petitioner with 29 counts of "making a false statement to receive a health care payment," a Class D felony in violation of � 191.905(1) of the Missouri Revised Statutes. I.G. Ex. 1.

3. According to the felony information, Petitioner falsely stated in claims for Medicaid reimbursement that prescriptions filled and dispensed by Petitioner were authorized by a physician when in fact they were not so authorized. I.G. Ex. 1.

4. On October 1, 1997, Petitioner entered an Alford plea of guilty to Count VI of the information, which alleged that Petitioner committed the class D felony of "making a false statement to receive a health care payment" by knowingly representing to "a health care payer, in order to receive a health care payment" that a physician had authorized the dispensing of Ducosate Sodium to a Medicaid recipient on June 9, 1995, when in fact it was not so authorized. I.G. Exs. 1-3.

5. On October 1, 1997, the Circuit Court accepted Petitioner's guilty plea and placed Petitioner under house arrest for 30 days; placed Petitioner on probation for five years; and ordered Petitioner to pay $570.69 in restitution. I.G. Exs. 2, 3.

6. On February 27, 1998, the I.G. notified Petitioner that he was being excluded from participation in the Medicare and Medicaid programs for a period of five years pursuant to section 1128(a)(1) of the Act. I.G. Ex. 1.

7. Petitioner's entry of a guilty plea and the acceptance of such plea by the Circuit Court of Camden County, Missouri, constitute a conviction within the meaning of sections 1128(a)(1) and 1128(i)(3) of the Act.

8. Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicaid program within the meaning of section 1128(a)(1) of the Act.

9. Once an individual has been convicted of a program-related criminal offense under section 1128(a)(1) of the Act, an exclusion of not less than five years is mandatory under section 1128(c)(3)(B) of the Act.

10. The Secretary has delegated to the I.G. the duty to determine and impose exclusions pursuant to section 1128(a) of the Act.

11. The I.G. properly excluded Petitioner, pursuant to section 1128(a)(1) of the Act, for a period of five years, as required by the minimum mandatory exclusion provision of section 1128(c)(3)(B) of the Act.

The first statutory requirement for the imposition of a 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. I find that this requirement is met in Petitioner's case. The term "convicted" is defined in section 1128(i) of the Act. This section provides that an individual or entity will be convicted of a criminal offense:

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Section 1128(i) of the Act.

This section establishes four alternative definitions of the term "convicted." An individual or entity need satisfy only one of the four definitions under section 1128(i) to establish that the individual or entity has been convicted of a criminal offense within the meaning of the Act.

Initially, I note that the record reflects that Petitioner entered an "Alford plea" on October 1, 1997.⁽²⁾ I.G. Ex. 3. It is well settled that an Alford plea is a guilty plea. See North Carolina v. Alford, 400 U.S. 25 (1970). Prior decisions of the Departmental Appeals Board (DAB) have unequivocally held that an "Alford plea" to a criminal charge satisfies the requirement that a petitioner have been convicted within the meaning of section 1128(i) of the Act. Russell E. Baisley, DAB CR128 (1991); Raymond R. Veloso, M.D., DAB CR124 (1991); Magdi Z. Fahmy, M.D., CR176 (1992). By entering an "Alford plea", Petitioner is deemed to have pled guilty, and the record shows that the Court accepted this plea. I.G. Exs. 2, 3. Therefore, Petitioner was convicted within the meaning of sections 1128(i)(1) and (3) of the Act.

Next, it is required under section 1128(a)(1) of the Act that the criminal offense at issue be related to the delivery of an item or service under the Medicare or Medicaid program. By pleading guilty to the offense charged in Count VI of the information, Petitioner was found to have filed fraudulent claims against the Missouri Medicaid program, thereby committing Medicaid fraud. See I.G. Ex. 3. The filing of fraudulent Medicare or Medicaid claims consistently has been held to constitute clear program-related misconduct. Alan J. Chernick, D.D.S., DAB CR434 (1996) (I.G.'s five-year mandatory exclusion of dentist who was convicted in State court of filing false claims upheld); see Barbara Johnson, D.D.S., DAB CR78 (1990) (I.G.'s five-year mandatory exclusion of dentist convicted of filing false claims upheld).

Once it is determined that a program-related criminal conviction has occurred, exclusion is mandatory under section 1128(a) of the Act as a purely derivative action. Section 1128(c)(3)(B) of the Act requires that an exclusion imposed under section 1128(a)(1) be for a minimum mandatory period of at least five years. Since the I.G. excluded Petitioner pursuant to section 1128(a)(1) of the Act, Petitioner's five-year exclusion is reasonable as a matter of law.

Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner herein be excluded from the Medicare and Medicaid programs for a period of at least five years because he has been convicted of a criminal offense related to the delivery of an item or service under the Medicaid program. The five-year exclusion is therefore sustained.

Joseph K. Riotto
Administrative Law Judge

1. In this decision, I use the term "Medicaid" to refer to these State health care programs.

2. Under an Alford plea, a defendant does not admit guilt but concedes that the State has sufficient evidence for conviction. See North Carolina v. Alford, 400 U.S. 25, 35-38 (1970).