Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
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DATE: February 1, 2002 |
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The
Inspector General
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Docket No.C-00-377
Decision No. CR865 |
DECISION | |
DECISION ON REMAND This case is before me on remand from an appellate panel
of the Departmental Appeals Board (DAB). By Order dated April 10, 2000,
the appellate panel remanded this case with instructions to reopen the
record for the purpose of receiving a submission of supplemental evidence
concerning a material fact in dispute; whether or not Petitioner's criminal
conviction was for an offense related to the delivery of an item or service
under Medicaid. I was directed to reconsider the entire record in light
of any supplemental submissions. I have reconsidered this case in accordance with the appellate
panel's instructions. I deny Petitioner's motion to dismiss and sustain
the determination of the Inspector General (I.G.) to exclude Petitioner
from participation in Medicare, Medicaid, and all federal health care
programs for a minimum period of five years. I. Background Petitioner requested a hearing before the Civil Remedies
Division (CRD) disputing a May 29, 1998 determination by I.G. to exclude
her from participation in Medicare, Medicaid, and all federal health care
programs for a period of five years pursuant to section 1128 (a)(1) of
the Social Security Act (Act). The I.G. advised that the exclusion was
due to Petitioner's conviction, as defined in section 1128(i) of the Act,
in the County Court, Aransas County, Texas, of a criminal offense related
to the delivery of an item or service under the Medicaid program.
On December 14, 1999, a decision was issued by Administrative
Law Judge (ALJ) Joseph Riotto (previously assigned to this case) in which
he affirmed the I.G.'s determination to exclude Petitioner from participation
in Medicare and Medicaid for a period of five years. Tanya A. Chuoke,
R.N., DAB CR633 (1999). Judge Riotto determined that the I.G. had
the authority to exclude Petitioner under section 1128(a)(1) of the Act
because of Petitioner's conviction of a criminal offense related to the
delivery of an item or service under the Medicaid program. Judge Riotto's
determination to decide this matter upon written submissions only was
based upon his determination that no material factual issues were in dispute.
See Order dated June 22, 1999, at 2. Accordingly, based upon the
written submissions, Judge Riotto concluded that the five-year exclusion
imposed by the I.G. was reasonable, and therefore granted the I.G.'s motion
for summary disposition. Petitioner appealed the decision to an appellate panel
of the Departmental Appeals Board (DAB). On appeal, Petitioner argued,
among other things, that there was no evidence in the record which established
that Petitioner's conviction was related to the delivery of a health care
item or service under Medicaid. Petitioner further asserted that the ALJ
erred in his assumption that Petitioner's conviction was for the same
offense as the written admission and the indictment. Thus, Petitioner
concluded that the I.G. had failed to show a connection between the conviction
and a program-related health care service, which is a required element
under section 1128(a)(1) of the Act. Finally, Petitioner argued that the
length of the exclusion was unreasonable asserting that: 1) she was never
convicted of a felony; and 2) based upon government error, the exclusion
commencement date was unfairly delayed. On April 10, 2000, the appellate panel issued its decision.
Tanya A. Chuoke, R.N., DAB No. 1721 (2000). Pursuant to 42 C.F.R.
� 1005.21(f), an appellate panel is authorized to remand a case to the
ALJ to consider evidence not presented at hearing if a party successfully
demonstrates that such evidence is material and relevant and that there
were reasonable grounds why such information was not previously presented
before the ALJ. The appellate panel found that "the ALJ erred in granting
summary disposition, because Petitioner raised a genuine issue of material
fact as to whether the specific conviction on which the I.G. relied related
to the program-related misconduct to which Petitioner admitted and for
which she was indicted." Chuoke, DAB No. 1721, at 1. Accordingly,
the case was remanded to the CRD for further proceedings on an issue of
material fact. Specifically, the appellate panel instructed that the record
be reopened and further evidence be received on the question of whether
a sufficient nexus existed between Petitioner's conviction and the delivery
of a health care item or service, such that the offense could be tied
to the delivery of an item or service under Medicaid. The ALJ was instructed
to, among other things, "permit additional documentary submissions as
necessary to create a sound record on which to resolve the factual dispute."
Id., at 11. The appellate panel ascertained that, based upon the
evidence presented by the I.G. in support of the exclusion, "the content
of the indictment cannot demonstrate by itself that a later conviction
resulted from that particular indictment and no other, without more. The
I.G. did not offer anything more to show that the conviction in the record
was tied to the indictment or the events that led to the indictment."
Id., at 7. On May 3, 2001, this case was reassigned to me for hearing
and decision. On May 24, 2001, I issued an Order reopening the record
for supplemental briefing in accordance with the appellate panel's instructions.
Specifically, I established a briefing schedule to afford the parties
the opportunity to submit supplemental documentation and express their
respective arguments on the issues before me on remand. On August 29,
2001, the I.G. requested a 60-day extension of time in which to file her
supplemental submission. On the same day, Petitioner filed a Motion to
Dismiss and Opposition to the I.G.'s Motion for Extension of Time. At
issue in Petitioner's Motion to Dismiss was the timeliness of the I.G.'s
response to the my Order for evidentiary supplementation. In ruling on
the I.G.'s request for an extension, I weighed a number of factors: 1)
whether receipt of the May 24th Order by the I.G. could be
satisfactorily demonstrated; 2) whether the change of I.G. counsel on
this matter during the period at issue adversely affected the progression
of this case; 3) whether an extension would unduly prejudice or delay
Petitioner's opportunity to fully present her case; and 4) whether a delay
would be in the best interest and for the protection of the Medicare and
Medicaid programs and their intended beneficiaries. In light of the totality
of the circumstances, in an Order dated September 17, 2001, I determined
that granting the I.G. a brief extension of five days would not be unreasonable.
In the same Order, I also established a deadline for the I.G.'s response
to Petitioner's Motion to Dismiss. On September 25, 2001, the I.G. filed
her supplemental brief in support of exclusion, along with 13 proposed
supplemental exhibits (I.G. Supp. Exs. 1-13). The I.G. subsequently filed
her opposition to Petitioner's motion to dismiss on September 28, 2001.
On October 11, 2001, Petitioner filed her replies to the I.G.'s supplemental
brief and the I.G.'s opposition to Petitioner's motion to dismiss. Petitioner
did not object to my receiving into evidence the I.G.'s proposed supplemental
exhibits and, therefore, I receive into evidence I.G. Supp. Exs. 1-13.(1) I have considered the issues before me on remand based
upon the entire record before me, and I conclude that the evidence does
establish that Petitioner's conviction was related to the delivery of
a health care item or service in accordance with section 1128(a)(1) of
the Act. I further find that the five-year exclusion imposed by the I.G.
is reasonable and, therefore, I sustain the I.G.'s determination to impose
the exclusion. II. Findings of fact and Conclusions of Law
(FFCL) Judge Riotto's December 14, 1999 decision was based on
18 FFCLs set forth at pages 4-6 of the decision. On appeal, Petitioner
took exception to FFCLs 4, 9, 11, 12, 15, and 18. Since Petitioner did
not take exception to the remaining FFCLs, the appellate panel affirmed
them without further discussion. Upon consideration of the parties' arguments
pertaining to the FFCLs to which Petitioner took exception, the appellate
panel affirmed FFCLs 9 and 11 and vacated FFCLs 4, 12, 15, and 18. Accordingly,
based upon the appellate panel's affirmance of these FFCLs, I incorporate
FFCLs 1-3, 5-11, 13-14, and 16-17 into this decision. The appellate panel
remanded the case and directed "the ALJ to reopen the record and receive
further evidence" as to FFCLs 4, 12, 15, and 18. Chuoke, DAB No.
1721, at 11. On remand, I amend FFCL 4 to read: 4. On September 20, 1996, Petitioner was indicted for
possession of a controlled substance, Methylphenidate (Ritalin), a Class
A criminal Misdemeanor, in the District Court of Aransas County, Texas
(District Court). In October 1996, the case was transferred to the County
Court of Aransas County, Texas (County Court), where, based upon Texas
law, the District Court indictment was converted to a County Court information,
although maintaining the legal substance of the original indictment. I.G.
Supp. Exs. 1-4. I amend FFCL 12 to read: 12. The I.G. has demonstrated that Petitioner's criminal
misdemeanor conviction for possession of a controlled substance is related
to the delivery of an item or service under the Medicaid program within
the meaning of section 1128(a)(1) of the Act. I amend FFCL 15 to read: 15. The I.G. properly excluded Petitioner for a five-year
period, pursuant to section 1128(a)(1) of the Act, which is the minimum
period mandated under section 1128(c)(3)(B) of the Act and the regulations
codified at 42 C.F.R. � 1001.102(a). Finally, I amend FFCL 18 to read: 18. The I.G. properly excluded Petitioner pursuant to
section 1128(a)(1) of the Act for a period of five years.
III. Discussion In her Motion to Dismiss (P. Br.), Petitioner asserts
that at no time during the entirety of these proceedings did the I.G.
present any evidence into the record that shows that Petitioner's conviction
was related to the delivery of a health care service. P. Br. at 1-2. Specifically,
Petitioner attacks the accuracy of the judgment instrument itself. Petitioner
asserts that the language in the judgment is inconsistent with the I.G.'s
asserted basis for exclusion. Specifically, Petitioner states that the
judgment indicates that Petitioner was charged by information
and not tried by indictment, as advanced throughout
by the I.G. Petitioner's Reply (P. Reply) at 2. Petitioner avers that
the I.G. has presented no evidence to make a connection between the indictment
originally filed in District Court against Petitioner and the information
alleged to be the basis for Petitioner's ultimate conviction in County
Court. Id. The I.G. refuted this argument by claiming that the apparent inconsistencies lie within the various court processing systems within the State of Texas, which were created in accordance with Texas law. The I.G. asserts that the original indictment was filed in District Court. That indictment charged a Class A Misdemeanor. See I.G. Supp. Ex. 1, at 1. When the indictment was transferred to County Court, for lack of jurisdiction, the title of the charging instrument changed to "information," but the substance of the original charging instrument remained unchanged. Likewise, the information received a case docket number which was consistent with the procedures within the County Court system. I.G. Br. at 8-9.
The I.G. has adequately demonstrated that the information,
which is the basis for the I.G.'s exclusion, is the same document as the
original indictment. Once the original indictment was filed in the District
Court, the court determined that they lacked jurisdiction to hear Petitioner's
case and, therefore, the matter was transferred to County Court. I.G.
Ex. 2. Succeeding review of Texas statutory and case law supports the
I.G.'s assertions. The Texas Constitution grants original jurisdiction
of all misdemeanors to a county court. See TX Const. art. V, �
16 (1876). All indictments must be presented in a district court, and
those for misdemeanors, over which said court has no jurisdiction, must
be transferred to the proper tribunal for trial. Davis v. State,
6 Tex.Crim.App. 133 (1879). In Garza v. State, 11 Tex.Ct.App. 410
(1882), the appellate tribunal determined that all prosecutions of misdemeanors
in county court must be by information. A county court cannot "acquire
jurisdiction or try a misdemeanor where it originated in county court,
until an information has been filed." Etheridge v. State, 172 S.W.
784 (1915). Upon a district court's determination to transfer a matter
to a county court: [t]he clerk of the court, without delay, shall deliver
the indictments in all cases transferred, together with all the papers
relating to each case, to the proper court or justice, as directed in
the order of transfer; and shall accompany each case with a certified
copy of all the proceedings taken therein in the district court, . . . Tex. Code Crim. Proc. Ann. art. 21.28 (West 2001). Upon receipt of the transferred case by the county court clerk, the case must:
Id., at art. 21.29. Based upon Texas law and the evidence submitted, I conclude that the original District Court indictment dated September 20, 1996 was technically converted to an "information" upon transfer to the County Court. As a result, the Class A Misdemeanor charge against Petitioner became a matter to be decided by the County Court.
Having resolved the above-referenced threshold matter,
the next issue to be addressed is whether the I.G. has established a connection
between the ultimate County Court judgment and the delivery of an item
or service under Medicaid to which Petitioner may be excluded from participation.
I have concluded that the I.G. has successfully made the connection. It is well established DAB practice that extrinsic evidence
is admissible to prove "surrounding facts and circumstances to discern
whether a connection exists between the conviction and delivery of an
item or service under a covered health care program." Tanya A. Chuoke,
R.N., DAB No. 1721 (2000). The appellate panel determined that, in
the instant case on appeal:
Id., at 7. Applying the standard described by the appellate panel,
I conclude that the I.G. has met her burden of proof. The extrinsic link,
which had not been produced when this matter was before the appellate
panel, was the cover letter attached to the documents being transferred
from District Court to County Court (I.G. Supp. Ex. 3). This letter makes
the connection between the original indictment and the subsequent information
upon which Petitioner was convicted. Petitioner originally argued in the
case below that the case number on the indictment (A-96-0061-CR) and the
case number assigned to the transferred case (16110) differed and that
the I.G. failed to provide any evidence connecting the two case numbers.
Petitioner's Reply Brief (Docket No. C-99-418) dated October 8, 1999,
at 1-2. Further, Petitioner asserted that without such proof the I.G.
could not establish "that the judgment concerns criminal conduct related
to the alleged crime which the government relies upon in this action."
Id., at 1. Petitioner's argument, in large part, formed the basis
for the appellate panel's remand of the case. See Chuoke,
DAB No. 1721, at 8-9. The I.G.'s submission of the previously omitted
I.G. Supp. Ex. 3 adequately substantiates that the original indictment
and the subsequent information are one and the same document. Upon transfer
of all of the court papers from District Court to County Court, the County
Court Clerk filled out a receipt provision at the bottom of the transmittal
letter which identified the docket number assigned to the case by the
District Court and which assigned a new docket number (16110) to Petitioner's
case in accordance with County Court practices. I.G. Ex. 3. That particular
piece of documentation, in conjunction with evidence previously submitted
in this matter, sufficiently creates the nexus between Petitioner's charge
and conviction and the delivery of an item or service under Medicaid. IV. Conclusion Based upon the entirety of the record, I deny Petitioner's
motion to dismiss this case, and further find that the I.G. was authorized
to exclude Petitioner pursuant to section 1128(a)(1) of the Act.
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JUDGE | |
Marion T. Silva Chief Administrative Law Judge |
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FOOTNOTES | |
1. I.G. Supp. Exs. 1 and 4-13 were previously admitted into evidence and already a part of the record. However, for the sake of clarity and convenience, since I am admitting I.G. Supp. Exs. 2 and 3 into evidence, I am admitting the I.G.'s submission in its entirety. | |