John Michael Briley, DNP, DAB CR5200 (2018)

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, John Michael Briley, DNP, from participating in Medicare and other federally funded health care programs, including state Medicaid programs, for a period of at least five years.

I. Background

The I.G. excluded Petitioner pursuant to the mandatory exclusion requirement of section 1128(a)(1) of the Social Security Act (Act). This section requires the exclusion of any individual who is convicted of a criminal offense related to the delivery of an item or service under Medicare or a state Medicaid program. The length of the exclusion imposed by the I.G. – at least five years – is the minimum mandatory exclusion period. Act, § 1128(c)(3)(B).

The I.G. filed a brief in support of his determination. He filed six proposed supporting exhibits that he identified as I.G. Ex. 1-I.G. Ex. 6, and a reply brief. Petitioner filed a brief and four proposed exhibits that he identified as P. Ex. 1-P. Ex. 4. I receive the parties’ exhibits into the record, although, as I discuss below, I do not find that Petitioner

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offered proof that he was not convicted of a program-related offense as is described in section 1128(a)(1).

Petitioner requested that I convene an in-person hearing so that I might hear the testimony of the three witnesses whose affidavits he offered. See P. Ex. 1-P. Ex. 3. I find no basis to convene a hearing. The I.G. did not request to cross-examine the witnesses. Moreover, much of the testimony contained in the affidavits is irrelevant. It consists of statements intended to show that Petitioner was not, in fact, guilty of the crime of which he was convicted. That evidence relates to an impermissible argument, as I shall explain.

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The sole issue in this case is whether Petitioner was convicted of a criminal offense as is described at section 1128(a)(1) of the Act. There is no issue as to the reasonableness of the length of the exclusion inasmuch as the I.G. imposed the minimum exclusion period.

B. Findings of Fact and Conclusions of Law

On November 14, 2017, Petitioner pled guilty to a one-count federal criminal information charging him with unauthorized use of the identification of another individual (“Dr. J.P.”) in violation of a federal statute, 18 U.S.C. § 1028(a)(7). I.G. Ex. 4. In pleading guilty, Petitioner agreed to pay restitution to entities that included Medicare and Tennessee’s Medicaid program. I.G. Ex. 5 at 3.

The criminal information to which Petitioner pled guilty derives from a superseding indictment that was filed against Petitioner on November 18, 2015. I.G. Ex. 3. That instrument charged Petitioner with knowingly possessing and unlawfully using the identification of Dr. J.P., a physician, in order to falsely and unlawfully represent that Dr. J.P. had ordered home health care services for enumerated individuals, in connection with the delivery of and payment for health care benefits and items and services involving Medicare and Tennessee’s Medicaid program. Id. at 3-4.

The exclusion requirement of section 1128(a)(1) of the Act derives from a conviction, in a state or federal court, of a criminal offense that is related to the delivery of a Medicare or state Medicaid item or service. Theft from these programs is not a necessary element of a section 1128(a)(1) conviction. All that is necessary is that the conviction be “related to” a Medicare or state Medicaid item or service.

In this case, Petitioner pled guilty to, and consequently, was convicted of the crime of identity theft, a violation of federal law. The criminal information to which Petitioner pled guilty does not, on its face, describe a program-related criminal offense. However,

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the document from which this criminal information – and Petitioner’s conviction – derives, the superseding indictment, makes it obvious that Petitioner pled guilty to a crime related to the delivery of Medicare and Medicaid items or services. The superseding indictment is proof, extrinsic to the criminal information to which he pled guilty, that Petitioner criminally misused the identify of another individual, Dr. J.P., to falsely and unlawfully represent that Dr. J.P. had ordered home health care services that are reimbursable under Medicare and Tennessee’s Medicaid program. See Berton Siegel, D.O., DAB No. 1467 at 7 (1994).

The purpose of Petitioner’s theft of Dr. J.P.’s identification was to facilitate unauthorized claims for Medicare and Medicaid items or services. That was the essence of Petitioner’s crime. That obvious purpose of Petitioner’s crime is all that is necessary to establish that his crime was program-related.

The fact that Petitioner’s sentence included payment of restitution to entities that included Medicare and Tennessee’s Medicaid program is convincing additional proof that his conviction related to the delivery of Medicare or state Medicaid items or services. Payment of restitution to these programs would be pointless unless Petitioner’s crime related to the delivery of Medicare or state Medicaid items or services.

Petitioner argues that, in fact, he was not convicted of a program-related offense. While acknowledging that he was convicted of something, he seems to say that, at bottom, his conviction emanates from a misunderstanding of his relationship with Dr. J.P. According to Petitioner, he had a contractual relationship with Dr. J.P. in which Dr. J.P. reviewed home health orders and Petitioner signed them on his behalf. Informal Brief of Petitioner (Petitioner’s brief) at 3-4. Petitioner seems to suggest that what he did was proper and lawful, consisting only of signing claims pursuant to Dr. J.P’s authorization. Petitioner avers that even if this arrangement with Dr. J.P. was a technical violation of law, it had no adverse effect on Medicare and Tennessee’s Medicaid program because Petitioner: “did not bill an insurance carrier or Medicare for signing or stamping the home health care orders . . . [he] did not receive any compensation, directly or indirectly, from the home health orders . . . [he] was not part of any scheme or plan to defraud Medicare.” Petitioner’s brief at 3.

But, unlawful personal profit from unauthorized claims is not a necessary element of a section 1128(a)(1) offense. Whether Petitioner received compensation for his criminal behavior is irrelevant. His crime was to submit unauthorized claims for Medicare and state Medicaid services by unlawfully using the identification of another individual. That is all that is needed to establish a program-related crime.

Furthermore, Petitioner’s argument plainly is an impermissible attempt to assert that he isn’t really guilty of a crime. He seems to assert that he did not misappropriate Dr. J.P.’s identification because he used it pursuant to a contract that he had with Dr. J.P. that

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authorized such use. But, he goes on to argue that, even if he committed a crime, it was essentially benign, a technical violation of law stemming from a misunderstanding of the relationship that he had with Dr. J.P. Petitioner’s brief at 4.

These arguments effectively comprise a collateral attack by Petitioner on his conviction. In essence, Petitioner asserts that although he pled guilty to a crime he is, in fact, innocent, a victim of what was at worst a misunderstanding.

These are impermissible arguments. An excluded party may not assert, as a challenge to an exclusion determination, that he or she is not really guilty of the crime from which the determination derives. 42 C.F.R. § 1001.2007. The authority to exclude derives from the conviction, and I may not reexamine that conviction.