DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
DATE: February 21, 1990
Docket No. C-158
In the Case of:
Catherine Parent-Geffert,
Petitioner,
- v. -
Inspector General.
DECISION OF ADMINISTRATIVE LAW JUDGE
ON MOTION FOR SUMMARY DISPOSITION
On September 7, 1989, the Inspector General (the I.G.) notified Petitioner that
she was being excluded
from participation in Medicare and State health care programs. The I.G. told
Petitioner that she was being
excluded as a result of her conviction in a Wisconsin court of a criminal offense
related to the delivery of
an item or service under the Medicare program. Petitioner was advised that the
exclusion of individuals
convicted of such an offense is mandated by section 1128(a)(1) of the Social
Security Act. The I.G. further
advised Petitioner that the law required that the minimum period of such an
exclusion be for not less than
five years.
Petitioner timely requested a hearing as to the exclusion, and the case was
assigned to me for a hearing and
a decision. In her hearing request, the Petitioner asserted that she had not
been convicted of a criminal
offense related to the delivery of an item or service under the Medicare program
within the meaning of
section 1128(a)(1) of the Social Security Act. She argued that she had not been
"convicted" of a criminal
offense within the meaning of section 1128(i) of the Social Security Act. Petitioner
also asserted that
section 1128 of the Social Security Act only required or directed exclusions
of individuals convicted of
offenses relating to health care services which are financed in whole or in
part by a government agency.
She contended that the offense of which she was convicted did not relate to
government-financed health
care services. Finally, Petitioner argued that the I.G. had unlawfully applied
the exclusion law
retroactively in her case.
The I.G. moved for summary disposition of the case. Petitioner responded to
the motion and also moved
for summary disposition. Neither party requested oral argument. Petitioner conceded
in her brief in
support of her motion for summary disposition that the only issue not resolved
against her by the
arguments and authorities cited by the I.G. was the issue of whether or not
she had been convicted of a
criminal offense related to the delivery of an item or service under the Medicare
program, within the
meaning of section 1128(a)(1) of the Social Security Act.
I have considered the parties' arguments, the undisputed material facts, and
the applicable law and
regulations. I conclude that the exclusions imposed and directed by the I.G.
are mandated by section
1128(a)(1) of the Social Security Act. Therefore, I am deciding this case in
favor of the I.G.
ISSUE
The issue in this case is whether Petitioner was convicted of a criminal offense
related to the delivery of an
item or service under the Medicare program, within the meaning of section 1128(a)(1)
of the Social
Security Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On May 27, 1988, Petitioner was charged under Wisconsin law with criminal
offenses, consisting of
two counts of falsely representing that she was licensed in Wisconsin to practice
psychology. I.G. Ex. 1.
2. The criminal complaint against Petitioner contained the statement of an
employee of Blue Cross and
Blue Shield of Wisconsin (Blue Cross) that Petitioner: had applied for a provider
number as a licensed
psychologist for insurance payments for psychological services rendered to persons
covered by Blue Cross
policies; had represented to Blue Cross that she was a licensed psychologist;
and had filed claims with Blue
Cross between December 27, 1985 and October 13, 1986 wherein she represented
that she had provided
psychological services. I.G. Ex. 1.
3. The criminal complaint against Petitioner also contained the statement of
an employee of Wisconsin
Physicians Services, Medicare Part B, that Petitioner: had applied for a provider
number with Wisconsin
Physicians services, representing herself to be a psychologist licensed in Wisconsin;
and had filed claim
forms with Wisconsin Physician Services between September 30, 1985 and March
4, 1986 wherein she
represented that she had provided psychological services. I.G. Ex. 1.
4. The criminal complaint against Petitioner also contained the statement of
an employee of the Wisconsin
Department of Regulation and Licensing that Petitioner was not and had never
been a licensed psychologist
in Wisconsin. I.G. Ex. 1.
5. The allegations in the criminal complaint against Petitioner were in part
based on evidence that
Petitioner had applied for a Medicare provider number in Wisconsin, representing
that she was a
psychologist licensed to practice in Wisconsin. I.G. Ex. 5.
6. The allegations in the criminal complaint against Petitioner were in part
based on evidence that
Petitioner had filed Medicare reimbursement claims for psychological services
in Wisconsin. I.G. Ex. 7.
7. Petitioner pleaded no contest to both counts of the complaint. I.G. Ex. 4.
8. Petitioner was convicted of criminal offenses related to the delivery of
an item or service under the
Medicare program. Findings 1-7.
9. Petitioner was convicted of criminal offenses within the meaning of section
1128(a)(1) of the Social
Security Act. Findings 1-8; Social Security Act, section 1128(a)(1).
10. The Secretary of Health and Human Services (the Secretary) delegated to
the I.G. the authority to
determine, impose, and direct exclusions pursuant to section 1128 of the Social
Security Act. 48 Fed. Reg.
21662 (May 13, 1983).
11. On September 7, 1989, the I.G. excluded Petitioner from participating in
the Medicare program and
directed that she be excluded from participating in Medicaid, pursuant to section
1128(a)(1) of the Social
Security Act.
12. The exclusion imposed and directed against Petitioner by the I.G. was for
five years, the minimum
period required by law for exclusions imposed and directed pursuant to section
1128(a)(1) of the Social
Security Act. Social Security Act, section 1128(c)(3)(B).
13. The exclusion imposed and directed against Petitioner by the I.G. is mandated
by law. Finding 9;
Social Security Act, sections 1128(a)(1); 1128(c)(3)(B).
ANALYSIS
Petitioner pleaded guilty in a Wisconsin court to the criminal offense of falsely
representing that she was
licensed to practice psychology. The I.G. excluded Petitioner from participating
in Medicare, and directed
that Petitioner be excluded from participating in Medicaid, pursuant to section
1128(a)(1) of the Social
Security Act. This section mandates the exclusion from participating in Medicare
and Medicaid of
individuals who are:
(C)onvicted of a criminal offense related to the delivery of an item or service
under . . .
[Medicare] or under . . . [Medicaid].
Petitioner no longer disputes that she was convicted of a criminal offense
within the meaning of section
1128. The undisputed facts establish that Petitioner pleaded no contest to a
criminal offense and that the
Court accepted Petitioner's plea and sentenced Petitioner. The exclusion law
defines the term "convicted of
a criminal offense" to include the circumstance where an individual enters
a nolo contendere plea to a
criminal charge. Social Security Act, section 1128(i)(3).
What remains at issue is whether Petitioner was convicted of a criminal offense
within the meaning of
section 1128(a)(1). Petitioner argues that this issue may only be resolved by
determining whether her
judgment of criminal conviction proves facts which establish that the offense
of which she was convicted
related to the delivery of an item or service under the Medicare program. That
in turn, according to
Petitioner, may only be resolved by examining the record of her criminal case.
P.'s Brief at 5.
Petitioner contends that the documents in her criminal case do not establish
that her conviction resulted
from misrepresentations to Medicare. She argues that neither her plea nor the
complaint against her
establish that the conduct which resulted in her conviction related to the delivery
of an item or service
under the Medicare program. Petitioner argues that the complaint does not specifically
or impliedly refer
to the delivery of an item or service under the Medicare program. Moreover,
according to Petitioner, there
are no facts alleged in the criminal complaint which would allow the reasonable
inference that the conduct
which led to issuance of the complaint related to the delivery of an item or
service under the Medicare
program.
The I.G. argues that facts sufficient to establish that Petitioner was convicted
of an offense as described in
section 1128(a)(1) are contained in the criminal complaint filed against Petitioner.
The I.G. argues further
that, to the extent language in the complaint is vague, that language is clarified
by an affidavit and exhibits
which the I.G. submitted in connection with his motion (I.G. Ex. 5, 6 and 7).
I.G.'s Reply Brief at 2.
Petitioner does not dispute the truth or accuracy of the affidavit or the exhibits.
However, Petitioner
contends that they are irrelevant because there is nothing in the documentation
of the criminal case against
Petitioner which suggests that they served as the basis for Petitioner's no
contest plea or for the court's
entry of a judgment of conviction against Petitioner. P.'s brief at 6, note.
I conclude that the criminal complaint against Petitioner contains facts sufficient
to establish that her no
contest plea was to a criminal offense related to Petitioner's misrepresentations
to the Medicare program.
The criminal complaint was based in part on the statement of an employee of
Wisconsin Physicians
Services, Medicare Part B, that Petitioner had applied for a provider number,
representing that she was a
licensed psychologist, and that she had submitted claims forms to Wisconsin
Physicians Services. I.G. Ex.
1. This statement does not precisely articulate that the provider number applied
for by Petitioner was to be
used in connection with Medicare claims, or that the claims subsequently submitted
by Petitioner were
Medicare claims.
However, it is reasonable to infer from the context of the statement and from
its contents that Petitioner
applied for a Medicare provider number representing herself to be a licensed
psychologist and submitted
Medicare claims for psychological services. As noted, the declarant is an employee
of Wisconsin
Physicians Services, Medicare Part B. She asserts that the Petitioner's provider
number application
contains representations by Petitioner to Wisconsin Physicians Services. She
also asserts that the claims
she refers to are claims from Petitioner to Wisconsin Physicians Services.
Therefore, there are no ambiguities in the complaint which would preclude a
finding that the offense
charged involved a criminal misrepresentation to Medicare. However, to the extent
any statements in the
complaint are arguably ambiguous, the I.G. has submitted exhibits which clarify
those statements.
As noted above, the I.G. submitted an affidavit by the individual whose allegations
concerning Petitioner's
representations to Wisconsin Physicians Services were included in the criminal
complaint. I.G. Ex. 5. The
I.G. also submitted a copy of a Medicare reimbursement claim submitted by Petitioner
to Wisconsin
Physicians Services during the period when, according to the complaint, Petitioner
had made such
reimbursement claims. I.G. Ex. 7.
Limited extrinsic evidence may be admitted to establish that the complaint
relates to the delivery of items
or services under Medicare or Medicaid. Blankenship v. the Inspector General,
Docket No. C-67 (1989);
Thomas M. Cook v. the Inspector General, Docket No. C-106 (1989).
In Blankenship, petitioner was convicted of the criminal offense of misrepresenting
the origin of drugs.
Judge Stratton admitted testimony of state and federal agents which established
that the drugs were
purchased with Medicaid eligibility cards. Thus, the conviction related to the
delivery of an item or
services under Medicaid within the meaning of section 1128(a)(1) of the Act.
In Cook, petitioner was
convicted of the criminal offense of reckless conduct. I admitted limited extrinsic
evidence which
established the identity of the individual against whom the conduct was perpetrated
and the nature of the
relationship between petitioner and that individual. The evidence established
that the offense constituted
reckless conduct by a nursing home administrator against a patient in a nursing
home. That, in turn,
established that the offense related to the neglect or abuse of a patient in
connection with the delivery of a
health care item or service within the meaning of section ll28(a)(2) of the
Act.
Here, the limited additional evidence that the I.G. offered consists of exhibits
which establish that
Petitioner applied for a Medicare provider number as a psychologist and subsequently
filed Medicare
reimbursement claims for psychological services under that number. The exhibits
are relevant because
they explain and resolve arguably ambiguous statements in the criminal complaint
which was filed against
Petitioner.
As noted above, while Petitioner disputes the relevance of the I.G.'s supplemental
evidence, she does not
dispute its truthfulness. There are no disputed material facts in this case.
Therefore, the case may be
disposed of by motion for summary disposition.
The criminal conviction in this case was for an offense relating to the delivery
of an item or service under
the Medicare program, within the meaning of section 1128(a)(1) of the Social
Security Act. Petitioner
made fraudulent representations to Medicare concerning her licensure as a psychologist,
in order to induce
Medicare to reimburse her for claims for psychological services. The false representations
were a
necessary prerequisite for Petitioner obtaining reimbursement for the services
she claimed to have
provided. Therefore, they, and the offense of which Petitioner was convicted,
were "related" to the
delivery of an item or service under Medicare. I conclude that the I.G. was
required to impose and direct
an exclusion against Petitioner, pursuant to section 1128(a)(1) of the Social
Security Act.
CONCLUSION
Based on the undisputed material facts and the law, I conclude that the I.G.'s
exclusion was mandated by
law. Therefore, I am entering a decision in favor of the I.G. in this case.
The five-year exclusion imposed
and directed against Petitioner is sustained.
__________________________
Steven T. Kessel
Administrative Law Judge