SUBJECT:

Ivette Maria Rivera,

Petitioner,

The Inspector General.

DECISION

I uphold the five-year exclusion of Petitioner, Ivette Maria Rivera, from participation in Medicare, Medicaid, and all federal health care programs.

I. Background

By letter dated September 30, 2005, the Inspector General (I.G.) notified Petitioner of his decision to exclude her from program participation, pursuant to section 1128(a) of the Social Security Act (Act), because she was convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program. Petitioner has requested review, and the matter was assigned to me for resolution. I held a prehearing conference, by telephone, on December 1, 2005. Petitioner conceded the facts upon which the I.G. predicated the exclusion. ⁽¹⁾ Consequently, I proposed to issue a decision in the matter based upon the parties' stipulations, without an in-person hearing. The parties agreed to resolve the case this way. I received the parties' Joint Stipulation, dated December 14, 2005, on December 15, 2005.

II. Issue

The only issue in this case is whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all federal health care programs.

III. Stipulations

As stated in their Joint Stipulation, the parties agreed that for the purposes of this case the facts cited are true and the exhibits attached to the Joint Stipulation (Stipulation (Stip.) exhibits 1 - 4) are true copies of the documents they represent. I set forth the parties' stipulations below in their entirety (stipulations numbered 1 - 18). I admit the parties' exhibits, Stip. Exs. 1 - 4.

1. During the time period relevant to this case, Petitioner worked as a licensed nurse, and was enrolled as a provider in the New York State Medicaid program. Stip. Ex. 1.

2. On May 4, 2005, the New York State Attorney General filed a criminal complaint in the First District Court of Suffolk County in the State of New York, alleging that during the period Agust 5, 2003 through October 31, 2003, Petitioner knowingly submitted false Medicaid claims to Computer Science Corporation (CSC), a fiscal agent for the State of New York under the Medicaid program. Stip. Ex. 1.

3. Specifically, the complaint alleges that between August 5, 2003 through October 31, 2003, Petitioner submitted claims for Medicaid reimbursement under Procedure Code W9045, which requires one-on-one nursing services. Petitioner's medical records, however, demonstrate that she had extensive cosmetic surgery for abdominoplasty, lipocomy of the thighs and knees, and breast augmentation on August 5, 2003, and was recuperating from the surgery through September 24, 2003. As a result, Petitioner did not render the nursing services for which she submitted claims. Stip. Ex. 1.

4. In the complaint, Petitioner was charged with grand larceny in the third degree, in violation of section 155.35 of the New York Penal Law, based on her participation in the Medicaid fraud scheme. Stip. Ex. 1.

5. After voluntarily remitting restitution in the sum of $14,644.00, Petitioner entered a guilty plea on June 23, 2005 to one count of attempted grand larceny in the fourth degree - a misdemeanor - under section 110/155.3 of the New York Penal Law, in the Suffolk county District Court before Judge Stephen Behar, District Court Judge. Stip Ex. 2.

6. On June 23, 2005, Judge Behar accepted Petitioner's guilty plea. Stip. Ex. 2.

7. In lieu of jail, probation, or fine, the Court summarily sentenced Petitioner to a one year conditional discharge on June 23, 2005. Stip. Ex. 2.

8. By letter dated September 30, 2005, the I.G. informed Petitioner that as a result of her conviction in the First District Court of Suffolk County in the State of New York, she was being excluded from participation in the 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), 42 U.S.C. § 1320a-7(a)(1). Stip. Ex. 3.

9. Section 1128(a)(1) of the Act provides for mandatory exclusion from participation in Medicare, Medicaid, and all Federal health care programs of individuals convicted of a criminal offense related to the delivery of an item or service under Medicare or Medicaid. See 42 U.S.C. § 1320a-7(a)(1).

10. Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(1) of the Act. See Dianne Amicucci, DAB CR540 (1998) (conviction of grand larceny in fourth degree as result of submitting false Medicaid claims is crime that falls within the scope of section 1128(a)(1) of Act).

11. Petitioner's plea of guilty, the acceptance of that plea by the Suffolk County Court, and the subsequent entry of judgment against her constitute a "conviction" within the meaning of sections 1128(i)(1) and (3) of the Social Security Act. See 42 U.S.C. § 1320a-7(i)(3); see also, John V.Wozniak, DAB CR1108 (2003).

12. Petitioner's conviction of attempted grand larceny in the fourth degree, as a result of the foregoing, is related to the delivery of an item or service under Medicaid within the meaning of section 1128(a)(1) of the Act.

13. Section 1128(c)(3)(B) of the Act requires that exclusions implemented under section 1128(a) of the Act shall not be less than five years. See 42 U.S.C. § 1320-7(c)(3)(B).

14. Neither the I.G. nor an administrative law judge is authorized to reduce the length of a mandatory five year exclusion period. See Jack W. Greene, DAB CR19, aff'd, DAB 1078 (1989), aff'd sub nom., Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1999).

15. As a result of Petitioner's conviction of a criminal offense related to the delivery of a service under Medicaid, the I.G. imposed a five year exclusion, the mandatory minimum period of exclusion mandated by the Act. See 42 U.S.C. § 1320a-7(c)(3)(B); Stip. Ex. 3.

16. By letter dated October 17, 2005, Petitioner requested review of the I.G.'s decision before an Administrative Law Judge (ALJ). Stip. Ex. 4.

17. On December 1, 2005, ALJ Carolyn Cozad Hughes convened a prehearing conference, during which Petitioner conceded the facts upon which the I.G. predicated his exclusion of Petitioner.

18. The parties submit this joint stipulation pursuant to the schedule set forth by ALJ Hughes on December 6, 2005.

IV. Conclusion

Based upon the Joint Stipulation and exhibits submitted by the parties, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of five years.

Carolyn Cozad Hughes

Administrative Law Judge

1. Petitioner apparently intends to challenge the statute and regulations in a forum that may have jurisdiction to review those issues. See 42 C.F.R. § 1005.4(c)(1) (The ALJ does not have the authority to find invalid or refuse to follow federal statutes or regulations or secretarial delegations of authority).