This matter is before me on the Inspector General's (I.G.'s) Motion for Summary Affirmance of his determination to exclude Petitioner herein, the business entity Miriam C. Jones & Associates (MCJA), from participation in Medicare, Medicaid, and all other federal health care programs until Petitioner has been reinstated to participate as a provider to the Louisiana Medical Assistance Program. The Louisiana Department of Health and Hospitals excluded Petitioner MCJA from the Louisiana Medical Assistance Program for a period of five years effective January 27, 2005.

The I.G.'s Motion and determination to exclude Petitioner are based on section 1128(b)(5)(B) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(b)(5)(B). The facts in this case support the imposition of the exclusion. Moreover, the I.G. set the period of exclusion to run concurrently with Petitioner's suspension from the Louisiana Medical Assistance Program, which is the minimum period of exclusion required by law. For those reasons, I grant the I.G.'s Motion for Summary Affirmance.

I. Procedural Background

Petitioner MCJA was for several years a provider of mental health rehabilitation services to beneficiaries of the Louisiana Medical Assistance Program, that State's Medicaid program. On October 6, 2004, the Louisiana Department of Health and Hospitals announced its exclusion of Petitioner from further participation in the Medical Assistance Program for five years. The Louisiana exclusion became effective January 27, 2005.

The I.G. began the process of excluding Petitioner from all federal health care programs on November 9, 2005 by notifying it that such an exclusion was being considered. On January 31, 2006, the I.G. notified Petitioner that it was to be excluded from participation in Medicare, Medicaid, and all other federal health care programs, as authorized by the terms of section 1128(b)(5) of the Act. The proposed exclusion would remain in effect "until you have been reinstated to the health care program which originally took the action against you."

Through its owner-administrator Miriam Cager Jones, L.C.S.W., Petitioner sought review of the I.G.'s action in an undated letter received by the Civil Remedies Division on February 27, 2006. I convened an initial prehearing conference on April 21, 2006, pursuant to 42 C.F.R. § 1005.6. Its results and the actions taken during the conference are set out in my Order of April 25, 2006. This first conference and the I.G.'s subsequent filing on May 18, 2006, clarified the question of whether the I.G in this case sought to exclude only the business entity MCJA, only Ms. Jones individually, or both. It is the I.G.'s position that these proceedings address only the exclusion of the business entity MCJA, and this decision is limited accordingly.

The matter seemed to lend itself to the I.G.'s suggested approach by summary disposition, and a schedule for the filing of the I.G.'s motion and the parties' briefs on the merits of that motion was established. The I.G.'s Motion for Summary Affirmance and a Brief in support of that Motion were filed on May 18, 2006. The I.G. submitted three proposed exhibits as attachments to the Brief (I.G. Exs. 1 - 3). Those exhibits are admitted as designated.

MCJA's Answer Brief in letter form (P. Ans. Br.) was dated June 30, 2006, but did not timely reach the I.G. or the Civil Remedies Division. I issued an Order to Show Cause on July 24, 2006. When a copy of MCJA's Answer Brief was received by facsimile on July 28, 2006, it became apparent to me that another prehearing conference was needed.

II. Issues

The legal issues before me are enumerated at 42 C.F.R. § 1001.2007(a)(1). In the specific context of this record, they are:

The controlling authorities resolve these issues in favor of the I.G.'s position. Section 1128(b)(5) of the Act supports Petitioner MCJA's exclusion from all federal health care programs, for its exclusion from the Louisiana Medical Assistance Program has been established. The period of Petitioner MCJA's exclusion, concurrent with its exclusion from the Louisiana Medical Assistance Program, is the minimum established by section 1128(c)(3)(E) of the Act and 42 C.F.R. § 1001.601(b)(1), and is therefore reasonable as a matter of law.

III. Controlling Statutes and Regulations

Section 1128(b)(5) of the Act, 42 U.S.C. § 1320a-7(b)(5), authorizes the exclusion from participation in Medicare, Medicaid, and all other federal health care programs of "Any individual or entity which has been suspended or excluded from participation, or otherwise sanctioned, under . . . (B) a State health care program, for reasons bearing on the individual's or entity's professional competence, professional performance, or financial integrity." The terms of section 1128(b)(5) are restated in similar regulatory language at 42 C.F.R. § 1001.601(a)(1).

An exclusion based on section 1128(b)(5)(B) of the Act is discretionary. If the I.G. determines that an event constitutes a valid predicate for the exclusion, he must send notice of his intent to exclude the affected individual or entity and must allow that individual or entity to respond to the notice of intent with documentary evidence and written argument concerning whether the exclusion is warranted and any related issues. 42 C.F.R. § 1001.2001. If the I.G. remains convinced that exclusion is warranted, he must send written notice of his final decision to exclude to the affected individual or entity, and must in that notice provide information about the appeal rights of the excluded party. 42 C.F.R. § 1001.2002. See also Act, section 1128(c), 42 U.S.C. § 1320a-7(c).

If the I.G. exercises his discretion to proceed with the sanction, then the mandatory minimum period of exclusion to be imposed under section 1128(b)(5) of the Act "shall not be less than the period during which . . . the individual or the entity is excluded or suspended from a . . . State health care program." Act, section 1128(c)(3)(E), 42 U.S.C. § 1320a-7(c)(3)(E). Regulatory language at 42 C.F.R. § 1001.601(b)(1) affirms the statutory provision.

IV. Findings and Conclusions

I find and conclude as follows:

I.G. Ex. 3, at 2-6.

Each of the four headings in the State's letter is supported by a detailed recitation of the facts revealed by the State's investigation and on which it based its decision to exclude MCJA. All four of the headings and all of the details set out in them unmistakably implicate MCJA's financial integrity, and the last two headings and their details implicate its professional competence and performance, for they are based on MCJA's practice of billing for mental health services provided by unqualified employees in an unlicensed manner. There is an obvious common-sense connection between the State's action and MCJA's professional competence, professional performance, and financial integrity. George Iturralde, M.D., DAB No. 1374; Olufemi Okonuren, M.D., DAB No. 1319; William Ernest Rogers, DAB CR1339 (2005); Judy Pederson Rogers, DAB CR1338 (2005); C. William Alexander, Ph.D., DAB CR479. The I.G. has established the second essential element.

Ms. Jones has interposed a number of purported defenses to the I.G.'s proposed action, and it is to be noted that I have reviewed her hearing request, P. Ex. 1, and all of her correspondence during the pendency of this case to be certain that no other defenses or arguments have been overlooked. Those purported defenses include her assertions that "the highest standards were observed in service delivery and consumer support (P. Ans. Br. at 1);" that "[t]he clinical staff . . . were qualified and dedicated (id.);" that there "were more services provided for which compensation was not sought than vice versa (id.);" and that "rules and regulations governing record keeping and documentation for billing are burdensome and often conflicting (id.)." Those and Ms. Jones' other assertions are of no help to MCJA here. They all constitute collateral attacks on the State's action, and the settled rule is that such collateral attacks on the soundness or the validity of a state action are impermissible in this forum. Judy Pederson Rogers and William Ernest Rogers, DAB No. 2009; Hassan M. Ibrahim, M.D., DAB No. 1613 (1997); George Iturralde, M.D., DAB No. 1374; Olufemi Okonuren, M.D., DAB No. 1319.

Although the I.G. may exercise discretion in deciding whether to exclude an individual or entity pursuant to section 1128(b)(5)(B) of the Act, the I.G. may exercise no similar discretion in determining the minimum term of such an exclusion. Section 1128(c)(3)(E) of the Act mandates that any exclusion based on section 1128(b)(5) must be for no less than the period during which the individual or entity is excluded or suspended from a Federal or State health care program. Thus, where the I.G. is authorized to impose an exclusion pursuant to section 1128(b)(5), that exclusion is reasonable as a matter of law if it is concurrent with the period of exclusion imposed by State authorities. Here, the exclusion imposed against MCJA by the I.G. is concurrent with the exclusion imposed by the Louisiana Department of Health and Hospitals, and is therefore reasonable as a matter of law. Judy Pederson Rogers and William Ernest Rogers, DAB No. 2009; William Ernest Rogers, DAB CR1339; Judy Pederson Rogers, DAB CR1338; Ioan Cheregi, M.D., DAB CR877 (2002); Rodolfo Byrne, M.D., DAB CR800 (2001); Donald D. Oh, M.D., DAB CR647; Donna Scotti, et al., DAB CR481 (1997).

Summary disposition in an exclusion case like this one is appropriate when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law. Tanya A. Chuoke, R.N., DAB No. 1721. Summary disposition is explicitly authorized by the terms of 42 C.F.R. § 1005.4(b)(12), and this forum looks to FED. R. CIV. P. 56 for guidance in applying that regulation. Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367; John W. Foderick, M.D., DAB No. 1125 (1990). When the undisputed material facts of a case support summary disposition, there is no right to a full evidentiary hearing. Surabhan Ratanasen, M.D., DAB No. 1138 (1990); John W. Foderick, M.D., DAB No. 1125. The material facts in this case are undisputed, clear, and unambiguous. They support summary disposition as a matter of law. This Decision is issued accordingly.

VI. Conclusion

For the reasons set out above, the I.G.'s exclusion of Petitioner Miriam C. Jones & Associates from participation in Medicare, Medicaid, and all other federal health care programs should be, and it is, SUSTAINED, pursuant to the terms of section 1128(b)(5)(B) of the Act, 42 U.S.C. § 1320a-7(b)(5)(B). That exclusion remains in effect while Petitioner Miriam C. Jones & Associates is excluded from the Louisiana Medical Assistance Program, by operation of section 1128(c)(3)(E) of the Act, 42 U.S.C. § 1320a-7(c)(3)(E).