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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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SUBJECT: Wendi Mueller, Petitioner, |
DATE: July 26, 2006 |
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The Inspector General.
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Docket No.C-06-203 Decision No. CR1478 |
| DECISION | |
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By letter dated December 30, 2005, the Inspector General (I.G.) notified Wendi Mueller (Petitioner) that she would be excluded from participation in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act), for a period of five years. The I.G. informed Petitioner that her exclusion was imposed pursuant to section 1128(a)(1) of the Act, due to her conviction in the Circuit Court of Green County, Wisconsin of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. As explained below, I grant the I.G.'s motion for summary judgment and sustain the I.G.'s determination to exclude Petitioner from participating in Medicare, Medicaid, and all federal health care programs for a period of five years.
After Petitioner's timely request for hearing dated January 13, 2006, I conducted a telephone conference on March 2, 2006. The I.G. indicated during the telephone conference that the I.G. planned to file a motion for summary affirmance. I reserved judgment on whether the case could be decided on the I.G.'s motion until I had reviewed the briefing. Thereafter, on March 22, 2006, the I.G. submitted his initial brief (I.G. Br.) and four proposed exhibits (I.G. Exs. 1-4). On April 26, 2006, Petitioner filed her responsive brief (P. Br.) and six proposed exhibits (P. Exs. 1-6). On May 10, 2006, the I.G. requested leave to file a reply brief. I found the I.G. had shown good cause for the reply and, accordingly, on May 22, 2006, the I.G. filed his reply brief (I.G. Reply Br.) Petitioner filed no response to the I.G.'s reply and I closed the record on June 26, 2006. Although Petitioner submitted some exhibits duplicating the I.G.'s, I have admitted all proposed exhibits into the record without objection. Based on all the evidence in the record, it is my decision to sustain the determination of the I.G. to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a period of five years. I base my decision on the documentary evidence, the applicable law and regulations, and the arguments of the parties. It is my finding that the mandatory exclusion provisions of section 1128(a)(1) of the Act do apply in this case because the Petitioner was convicted of a program-related criminal offense.
The issues in this case are whether summary judgment, without further proceedings, is appropriate, and, whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all other federal health care programs under section 1128(a)(1) of the Act. Because the period of exclusion in this case is five years, the minimum mandatory period, there is no issue before me concerning the reasonableness of the exclusion's length.
Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of the United States Department of Health and Human Services (Secretary) is provided by section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction. However, the Secretary has by regulation limited my scope of review to two issues: (1) whether there is a basis for the imposition of the sanction; and, (2) whether the length of the exclusion is unreasonable. 42 C.F.R. § 1001.2007(a)(1). The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. § 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. § 1005.15(b) and (c). Section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)) requires the Secretary to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under a federal or state health care program. An exclusion under section 1128(a) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B). Aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. § 1001.102(b). If aggravating factors justify an exclusion longer than five years, mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c). Section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)) defines the term "convicted" as used in section 1128(a) as follows:
Pursuant to 42 C.F.R. § 1001.2007, a person excluded under section 1128(a)(1) of the Act may file a request for hearing before an ALJ.
The I.G. argues that Petitioner was convicted of a criminal offense related to the delivery of an item or service under a federal or state health care program. Therefore, according to the I.G., Petitioner is subject to the statutory minimum mandatory period of exclusion of five years. Act, section 1128(c)(3)(B).
Petitioner argues that because she was convicted of misdemeanors only, the permissive exclusion provision under section 1128(b)(1) should apply. P. Br. at 5. Petitioner also argues that she was not convicted of any program-related crimes. Id. at 6. Further, Petitioner contends that a five-year exclusion is unreasonable because her current employment as a registered nurse is not related to billing and her work is valuable to the small community where she works. Id. at 7 - 8.
My findings of fact and conclusions of law are noted in bold below. I follow each finding with an explanation.
Summary judgment (or affirmance) is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004). The party moving for summary judgment bears the initial burden of showing the basis for its motion and identifying the portions of the record that it believes demonstrate the absence of a genuine factual dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If a moving party carries its initial burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Industrial Co., v. Zenith Radio, 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). That is, the non-moving party must act affirmatively by tendering evidence of specific facts showing that a dispute exists. Denials and assertions in pleadings or briefs are not sufficient to overcome a well-supported motion. In this case, the I.G. carried his initial burden of showing that Petitioner was convicted of a criminal offense that related to the delivery of an item or service under a state health care program (Medicaid). As required of a fact finder when reviewing a motion for summary judgment, I have viewed the facts in the light most favorable to the non-moving party. Nonetheless, I see no material facts that are either disputed or subject to clarification by testimony in this case. Moreover, once the I.G. has shown that Petitioner was convicted within the meaning of section 1128(i) of the Act, the fact finder cannot look behind the conviction. It is well established that section 1128(a) of the Act is triggered by a conviction and neither the ALJ nor the Departmental Appeals Board (DAB) can collaterally attack the underlying conviction or re-litigate the validity of the conviction. 42 C.F.R. § 1001.2007(d); Travers v. Shalala, 20 F.3d 993, at 998 (9th Cir. 1994). Petitioner proffered no facts nor submitted exhibits with her brief to suggest that the I.G.'s allegations and evidence of a relationship between her conviction and a federal or state health care program are erroneous. The ALJ is not required to convene a full evidentiary hearing in order to consider all the issues an excluded individual may have raised under 42 C.F.R. § 1001.2007(a)(1), as long as the material facts are clear from the parties' pleadings. Maria Thachenkery, M.D., DAB CR731 (2001). I conclude that summary affirmance in this case is appropriate.
1. As stated in the factual summary of the criminal complaint filed against Petitioner on April 14, 2005, in the Circuit Court of Green County, Wisconsin, and not contested by Petitioner, Petitioner was a registered nurse employed to provide in-home personal care to a patient identified as V.H. at V.H.'s home located in Monroe, Wisconsin. I.G. Ex. 3, at 3. 2. Badgerland Billing, L.L.C. (Badgerland) acted as a billing agent for Petitioner. The accepted procedures were that Petitioner provided care to V.H. and reported her hours worked to Lori Schey at Badgerland. I.G. Ex. 3, at 3. Badgerland then electronically transmitted Petitioner's reported hours to EDS, a private firm that contracts with Wisconsin's Department of Health and Family Services (DHFS) to process claims for reimbursement under the Medicaid program and then pays the claims with funds provided by the State of Wisconsin. Based on Badgerland's transmission, EDS paid Petitioner with Medicaid funds. Id. 3. In August 2004, Ms. Schey noticed that Petitioner's prior authorization from DHFS had expired, meaning that Petitioner could not be paid until DHFS issued her another authorization. Ms. Schey contacted the case manager for V.H. and learned that Petitioner had not provided care for V.H. for some time. I.G. Ex. 3, at 3. 4. When contacted by an investigator from the Medicaid Fraud Control Unit, Petitioner admitted that she had stopped working with V.H. on or about March 12, 2004. Even though she no longer provided care to V.H., Petitioner, on more than 13 occasions after March 12, 2004, reported to Badgerland that she had provided services. Petitioner received payment for the services until her authorization expired in August 2004. I.G. Ex. 3. According to DHFS and EDS records and Petitioner's own admission, Petitioner received payments totaling $7,375 for services she did not provide. Id. 5. Petitioner was charged with, and plead guilty on April 28, 2005 to, three misdemeanor counts of theft-false representation under Wis. Stat. § 943.20(1)(d). P. Ex. 1; see I.G. Exs. 3, 4. She was sentenced to two years of probation and was required to make restitution in the amount of $7,375. Id.
Petitioner does not contest that she was convicted as conviction is defined in the Act. P. Br. at 4. Conviction is precisely described in the Act. Included in the language of the Act is that an individual or entity is considered to have been "convicted" for purposes of exclusion "when a plea of guilty or nolo contendere by the individual as been accepted by a Federal, State or local court . . . ." Section 1128(i)(3) of the Act (42 U.S.C. § 1320a-7(i)(3)). Petitioner pleaded guilty to a criminal offense and her plea was accepted by the Circuit Court of Green County, Wisconsin. P. Ex. 1; I.G. Ex. 4. Petitioner has been convicted as conviction is defined in the Act.
Section 1128(a)(1) of the Act requires the exclusion of any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Medicare or any state health care program such as Medicaid. Section 1128(a)(1) of the Act; 42 U.S.C. § 1320a-7(a)(1). Petitioner claims that she was convicted of the general misdemeanor offense of theft by false representation and was not convicted of the specific Wisconsin statute covering crimes committed in connection with the state medical assistance program. P. Br. at 6. Therefore, according to Petitioner, she was not convicted of a program-related crime. The DAB has previously reviewed cases requiring an analysis of whether a conviction is related to the delivery of an item or service under Medicare or Medicaid in situations where the conviction is for a crime the title of which has nothing to do with Medicare or Medicaid. See, e.g., DeWayne Franzen, DAB No. 1165 (1990). The DAB has said there is no "general rule" that all crimes involving financial misconduct directed at Medicare or Medicaid are, by their very nature, related to the delivery of items or services under such programs within the meaning of section 1128(a)(1) of the Act. Berton Siegal, D.O., DAB No. 1467 (1994). Rather, the phrase "related to the delivery of an item or service under Medicare or a state health care program" requires some nexus or a common sense connection between the conviction and the delivery of items or services under Medicare or Medicaid. Lyle Kai, R.Ph., DAB No. 1979 (2005). As an ALJ in Tanya A. Chuoke, R.N., DAB CR633 (1999) states:
Tanya A. Chuoke, R.N., DAB CR633, at 4. Petitioner has nowhere in the record denied that the criminal offense of which she was convicted derived from her claiming to have provided services for V.H. which she did not provide and requesting and receiving payment from Medicaid for the services that were not provided. Given the Medicaid investigator's statement of facts (in the record as I.G. Ex. 3 and P. Ex. 4), it is clear that in Petitioner's scheme for obtaining Medicaid funds the delivery (non-delivery) of a Medicaid service was an element in the chain of events giving rise to the criminal offense of which Petitioner was convicted. Her scheme would not have been successful if she had not previously provided Medicaid care to V.H. Certainly facts upon which the conviction was predicated can be used to determine whether a common sense link exists between her crime - whatever its name or statutory section - and Medicaid. Lyle Kai, R.Ph., DAB No. 1979. While a relationship to Medicaid is not necessarily an element of the specific offense to which Petitioner pled guilty, this fact is not dispositive as to whether the offense is program-related within the meaning of section 1128(a)(1) of the Act. Moreover, convictions for the underlying act of submitting false and fraudulent claims for reimbursement to Medicaid agencies have long been held to be program-related offenses within the meaning of section 1128(a)(1) of the Act. See Jack W. Greene, DAB No. 1078 (1989), aff'd sub nom Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990). Here a nexus or common sense connection exists between Petitioner's criminal conviction and the delivery of an item or service under Medicaid.
The application of a mandatory exclusion under section 1128(a)(1) of the Act does not turn on whether the criminal offense was a felony or a misdemeanor. Rather the application of section 1128(a)(1) of the Act depends on whether the individual or entity was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. The permissive exclusions under section 1128(b) of the Act apply only for misdemeanor criminal offenses related to the delivery of a health care item or service under a health care program other than Medicare or a state health care program. 42 C.F.R. § 1001.201(a)(1) and (2).
Exclusion under section 1128(a)(1) of the Act must be for a minimum mandatory period of five years. Section 1128(c)(3)(B) of the Act. When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. § 1001.2007(a)(2). Petitioner submitted a letter from her Probation Agent in which the agent states that Petitioner
P. Ex. 5. Petitioner also submitted a letter from the Interim Human Resources Director of the Monroe Clinic stating that if Petitioner could no longer be a registered nurse at the Clinic, it would be a hardship for the Clinic. P. Ex. 6. Neither of these letters can affect the exclusion or the length of the exclusion if the I.G. has established a basis for a mandatory exclusion as the I.G. has done in this case. A minimum five year exclusion is mandatory for conviction of a program-related crime. 42 U.S.C. § 1320a-7(c)(3)(B). I have no authority to impose a shorter length of exclusion. 42 C.F.R. § 1001.2007(a)(2). VI. Conclusion Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from Medicare, Medicaid, and all other federal health care programs for a period of at least five years because of her conviction of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. The five-year exclusion is therefore sustained. |
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| JUDGE | |
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Anne E. Blair Administrative Law Judge |
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