Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
DATE: June 29, 1990
Docket No. C-211
In the Case of:
Essa Abdulla, M.D.,
Petitioner,
- v. -
The Inspector General.
DECISION
In this case, governed by section 1128 of the Social Security Act (Act), Petitioner
filed a timely request for
a hearing before an Administrative Law Judge (ALJ) to contest the December 11,
1989 notice of
determination (Notice) issued by the Inspector General (I.G.) which excluded
Petitioner from participating
in the Medicare and Medicaid programs for five years.
Based on the entire record before me, I conclude that summary disposition is
appropriate in this case, that
Petitioner is subject to the minimum mandatory exclusion provisions of sections
1128(a)(1) and
1128(c)(3)(B) of the Act, and that Petitioner's exclusion for a minimum period
of five years is mandated by
federal law.
APPLICABLE STATUTES AND REGULATIONS
I. The Federal Statute.
Section 1128 of the Social Security Act (Act) is codified at 42 U.S.C. 1320a-7
(West U.S.C.A., 1989
Supp.). Section 1128(a)(1) of the Act provides for the exclusion from Medicare
and Medicaid of those
individuals or entities "convicted" of a criminal offense "related
to the delivery of an item or service" under
the Medicare or Medicaid programs. Section 1128(c)(3)(B) provides for a five
year minimum period of
exclusion for those excluded under section 1128(a)(1).
II. The Federal Regulations.
The governing federal regulations (Regulations) are codified in 42 C.F.R.,
Parts 498, 1001, and 1002
(1989). Part 498 governs the procedural aspects of this exclusion case; Parts
1001 and 1002 govern the
substantive aspects.
Section 1001.123 requires the I.G. to give a party written notice that he or
she is excluded from
participation in Medicare, beginning 15 days from the date on the notice, whenever
the I.G. has conclusive
information that a practitioner or other individual has been convicted of a
crime related to his or her
participation in the delivery of medical care or services under the Medicare,
Medicaid, or the social
services program.
BACKGROUND
The I.G.'s Notice alleged that Petitioner was convicted of a criminal offense
related to the delivery of an
item or service under the Medicare program, and advised Petitioner that the
law required a five-year
minimum exclusion from participation in Medicare and Medicaid programs for individuals
convicted of a
program-related offense. Petitioner requested a hearing to contest the I.G.'s
determination and the case was
assigned to me for a hearing and decision.
I conducted a prehearing conference in this case on March 21, 1990 and issued
a prehearing Order on
March 29, 1990, which established a schedule for filing motions and responses.
The I.G. filed a motion for
summary disposition and a memorandum in support thereof on April 20, 1990. The
Petitioner filed a
response on May 11, 1990, to which the I.G. replied on May 23,1990.
ADMISSIONS
Petitioner admits he was "convicted" of a criminal offense within
the meaning of sections 1128(a)(1) and
1128(i) of the Act, of one felony count of mail fraud. P. Br. 1.
ISSUE
The remaining 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
Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Having considered the entire record, the arguments and the submissions of the
parties, and being advised
fully herein, I make the following Findings of Fact and Conclusions of Law:
1. Petitioner was a physician at all times relevant to this case, practicing in West Virginia. I.G. Ex. A/2.
2. Petitioner pled guilty to one count (69) of an 81 count indictment in the
United States District Court for
the Southern District of West Virginia. Count 69 alleged violations of 18 U.S.C.
1341 (mail fraud). I.G.
Ex. C.
3. Petitioner's plea was accepted by the court. I.G. Ex.C.
4. Count 69 of Petitioner's indictment concerned Petitioner's mailing of a
false and fraudulent claim to
Blue Cross and Blue Shield. I.G. Ex. A/15.
5. Petitioner's false and fraudulent claim consisted of an envelope containing
a Summary of Medicare
Benefits Form with a Supra bill attached. A Supra bill is a request for payment
on an invoice for the
amount of the invoice which is not reimbursed by the Medicare program. I.G.
Ex.A/15.
6. The Supra bill submitted by Petitioner evidenced a blood test done for a
Medicare patient on January
16, 1984. I.G. Ex. A/15.
7. The patient concerned in Count 69 had a Blue Cross and Blue Shield Medical
Supplemental Insurance
policy which paid the balance (20% of the approved reasonable charge) of medical
claims not paid by
Medicare. A Medicare Supplemental policy is defined in 42 C.F.R. 403.205 as
a health insurance policy
offered to a Medicare beneficiary, primarily designed to provide payment for
expenses incurred for
services and items not reimbursed under the Medicare program. I.G. Ex.A/14.
8. It is a crime to use the federal mails for the purpose of executing "any
scheme or artifice to defraud." 18
U.S.C. 1341.
9. The action to which Petitioner pled guilty in Count 69 was part of a scheme
or artifice to defraud the
United States Department of Health and Human Services (DHHS) through its Medicare
Program. I.G. Ex.
A.
10. The "scheme and artifice to defraud," in this case, is stated
generally in the first paragraph of the
indictment. This paragraph is then realleged and incorporated by reference for
all succeeding counts,
including Count 69. I.G. Ex. A/ 1, 14.
11. The District Court required Petitioner to make restitution to DHHS in the
amount of $20,228.56. I.G.
Ex. C.
12. The offense of mail fraud to which Petitioner pled guilty was "related
to the delivery of an item or
service" under Medicare within the meaning of section 1128(a)(1) of the
Act.
13. On December 31, 1990 the I.G. excluded Petitioner from participating in
the Medicare and Medicaid
programs for a period of five years. I.G. Ex. D.
14. The Secretary of DHHS (the Secretary) delegated to the I.G. the authority
to determine, impose and
direct exclusions pursuant to section 1128 of the Act. 48 Fed Reg. 21662 (May
13, 1983); 42 U.S.C. 3521
et seq.
15. Since the material facts are undisputed in this case, the classification
of Petitioner's conviction of a
criminal offense as subject to the authority of 1128(a) is a legal issue.
16. Summary disposition is appropriate in this case. See 56 F.R.C.P.
17. Petitioner was "convicted" of a criminal offense within the meaning
of section 1128(a) and 1128(i) of
the Act.
18. Petitioner was convicted of 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.
19. A minimum mandatory exclusion of five years is required in this case by
section 1128(c)(3)(B) of the
Act.
DISCUSSION
I. Petitioner's Conviction Was "Related To The Delivery Of An Item Or
Service" Within The Meaning Of
Section 1128 Of The Act.
Section 1128(a)(1) and 1128(c)(3)(B) of the Act requires the I.G. to exclude
individuals and entities from
the Medicare and Medicaid programs when individuals and entities have been "convicted"
of a criminal
offense "related to the delivery of an item or service" under the
Medicare or Medicaid programs. See
Greene v. Sullivan, Civ. No. 3-89-758 (E.D. Tenn. Feb. 8, 1990), affirming Jack
W. Greene, DAB App.
1078 (1989).
Petitioner was convicted of one count of mail fraud. I must determine whether
the evidence demonstrates a
relationship between the conviction of mail fraud and "the delivery of
an item or service" under the
Medicare program. FFCC 2-9, 17.
The I.G. has submitted a brief and other documents in support of his motion
for summary disposition. The
I.G. contends that these documents, as a whole, support his contention that
Petitioner's conviction was
program related.
The specific act to which Petitioner pled guilty was having mailed an invoice,
a Supra bill, in the amount
of $450 to Blue Cross and Blue Shield. This Supra bill referenced a blood test
done on a Medicare patient.
Petitioner's action, however, cannot be seen to stand alone. Rather, it must
be seen in a larger context, as a
part of Petitioner's scheme to defraud the Medicare system.
As I held in Clarence H. Olson, DAB Civ. Rem. C-85 at 7 (1989), and as I reiterated
in Hai Nuh Bui, DAB
Civ. Rem. C-103 (1990), the issue of whether a conviction is program-related
should not be decided in a
vacuum, or with a strict hypertechnical interpretation of the term, "related
to." All relevant documents
pertaining to the trial court proceeding must be considered. Id. This includes
any evidence which explains
or assists me in understanding the criminal charge brought against Petitioner,
the criminal offense to which
he pled guilty, and how it relates to the Medicare or Medicaid programs.
In the instant case, the essence of the crime to which Petitioner pled guilty,
mail fraud, is that there be a
"scheme or artifice to defraud." Here, the indictment on its face
identifies the scheme in question as having
been directed against "the United States Department of Health and Human
Services through its Medicare
Program." I.G. Ex. A/1. This paragraph is then realleged and incorporated
by reference for all succeeding
counts, including Count 69, the count to which Petitioner pled guilty. FFCC
4-11.
Moreover, even if Count 69 were not simply one element of a general scheme
involving Medicare, the
"item or service" in question in Count 69 was necessarily delivered
under Medicare, because the Blue
Cross/Blue Shield policy referred to in Count 69 was specifically identified
as a Medicare Supplemental
Policy, issued solely to Medicare patients, to pay only that portion of medical
bills not covered by
Medicare. I.G. Ex. A/14, paragraphs 3, 4.
Finally, the judgment of the District Court specifically recognized the Department
of Health and Human
Services as an "aggrieved" party, and directed the Petitioner to make
restitution in the amount of
$20,228.56. I.G. Ex. C.
The cumulative effect of the evidence contained in the I.G.'s exhibits is irrefutable.
I conclude that the I.G.
has demonstrated the necessary relationship between Petitioner's "conviction"
and the "delivery of an item
or service" under the Medicare program. Accordingly, I find that Petitioner
was convicted of a criminal
offense related to the delivery of an item or service within the meaning of
section 1128(a)(1) of the Act.
II. A Minimum Mandatory Five Year Exclusion Is Required In This Case.
Section 1128(c)(3)(B) of the Act provides for a minimum exclusion period of
five years for program-
related exclusions. As I have concluded, the I.G. correctly determined that
Petitioner was convicted of a
criminal offense as defined by sections 1128(a)(1) and 1128(i) of the Act. Congressional
intent on this
matter is clear:
A minimum five-year exclusion is appropriate, given the seriousness of the
offenses at issue....
Moreover, a mandatory five-year exclusion should provide a clear and strong
deterrent against the
commission of criminal acts.
S. Rep. No. 109, 100th Cong., 1st Sess. 2, reprinted in
1987 U.S. Code Cong. & Admin. News 682, 686.
Accordingly, I conclude that the I.G.'s exclusion of Petitioner for a period
of five years is required by
section 1128(c)(3)(B) of the Act.
III. Summary Disposition Is Appropriate In This Case.
The issue of whether the I.G. had the authority to exclude Petitioner under
Section 1128(a)(1) is a legal
issue. I have concluded as a matter of law that Petitioner was properly excluded
and that the length of his
exclusion is mandated by law. There are no genuine issues of material fact which
would require the
submission of additional evidence, and there is no need for an evidentiary hearing
in this case.
Accordingly, the I.G. is entitled to summary disposition as a matter of law.
See Charles W. Wheeler and
Joan K. Todd, DAB App. 1123 at 10 (1990), and Rule 56 F.R.C.P
CONCLUSION
Based on the law and undisputed facts in the record of this case, I conclude
the I.G. properly excluded
Petitioner from the Medicare and Medicaid programs for the minimum mandatory
period of five years.
IT IS SO ORDERED.
Charles E. Stratton
Administrative Law Judge