Skip Navigation



CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT: Tarvinder Singh, D.D.S.,

Petitioner,

DATE: October 25, 2000

             - v -

 

The Inspector General

 

Civil Remedies CR697
Docket No. A-2001-07
Decision No. 1752

DECISION
...TO TOP

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Tarvinder Singh, D.D.S. (Petitioner), appealed a September 8, 2000 decision by Administrative Law Judge (ALJ) Joseph K. Riotto.

Tarvinder Singh, D.D.S., DAB CR697 (2000) (ALJ Decision). Before the ALJ, Petitioner appealed the Inspector General's (I.G.'s) determination that Petitioner should be excluded from participation in Medicare, Medicaid, Maternal and Child Health Services Block Grant and Block Grants to States for Social Services programs(1) for a period of 10 years. The I.G. imposed this exclusion pursuant to section 1128(a)(1) of the Social Security Act (Act) based on Petitioner's conviction in the Superior Court of the State of California for a criminal offense related to the delivery of an item or service under the Medicaid program.

The ALJ Decision was based on the parties' written submissions. The ALJ made 15 Findings of Fact and Conclusions of Law (FFCLS). Based on the analysis below, we affirm and adopt 13 of those FFCLs including the ALJ's ultimate conclusion upholding the I.G.'s proposed ten-year exclusion. We modify two other FFCLs to more accurately reflect the circumstances of Petitioner's exclusion.

Petitioner's Arguments

Petitioner's single assertion of error was that the ALJ Decision was based upon "incorrect" FFCLs. Therefore, Petitioner argued, the ALJ Decision was not supported by substantial evidence on the record as a whole and was clearly erroneous. Consequently, Petitioner sought a reduction in the ten-year exclusion. Petitioner Br. at 3.

Specifically, Petitioner challenged the following two FFCLs:

4. On April 7, 1999, Petitioner pled guilty to count two of the Indictment, a felony, in violation of California Penal Code section 487 and on that date the California court accepted Petitioner's guilty plea. I.G. Ex. 4.

* * *

10. Petitioner's conviction for a felony is related to the delivery of a health care item or service under the Medicare/Medicaid programs within the meaning of section 1128(a)(1) of the Act.

ALJ Decision at 4-5.

Petitioner asserted that the ALJ overlooked "incontrovertible evidence" that Petitioner was convicted of a misdemeanor. Petitioner contended that the ALJ's failure to understand the true nature of Petitioner's plea led him to impose a much harsher exclusion than was warranted by law. Petitioner Br. at 2-3.

ANALYSIS
...TO TOP

Analysis

Our standard of review on a disputed conclusion of law is whether the ALJ Decision is erroneous. Our standard of review on a disputed finding of fact is whether the ALJ Decision is supported by substantial evidence on the record as a whole. 42 C.F.R. § 1005.21(h).

Petitioner is correct that the reference to a "felony" in FFCLs 4 and 10 is not supported by the record. Petitioner's Exhibit 4 before the ALJ was the "Reporter's Transcript of Defendant's Change of Plea and Judgement and Sentence." In that proceeding, Petitioner entered a plea of "no contest to misdemeanor 487 of the Penal Code." Id. at 2. The court made clear that Petitioner was pleading to a misdemeanor, where he had initially been charged with a felony. Id. at 3, 6, 8-9. Further, Petitioner's Exhibit 2 before the ALJ, a document titled "Additional Terms and Conditions of Probation" plainly reflects the reclassification of the offense to which Petitioner pled.

We conclude however, that while the challenged FFCLs erroneously stated that the crime to which Petitioner pled was a felony, this error was harmless. The record shows that the crime to which the Petitioner pled guilty was a misdemeanor, and the ALJ discussed this fact in the text of his decision. Specifically, the ALJ found that there was no merit to Petitioner's argument that he should be subject to a permissive, rather than a mandatory exclusion, based on the nature of the crime to which he pled. In relevant part, the ALJ stated:

Petitioner challenges that he is subject to exclusion under section 1128(a)(1) of the Act and maintains instead that as his criminal conviction was a misdemeanor, he is more properly subject to a three-year permissive exclusion. I disagree. It is irrelevant that Petitioner's conviction was for a misdemeanor for the statute makes no distinction between degrees of criminal offenses. Brenda J. Motley, DAB CR414 (1996). The I.G. has no discretion to impose a permissive exclusion when the threshold provisions of section 1128(a) exclusion have been fulfilled, even when the conduct can be fairly characterized under either permissive or mandatory exclusion provisions. Jack W. Greene, DAB No. 1078 (1989), aff'd Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990). I therefore find that the I.G. has the authority to proceed under section 1128(a)(1) of the Act.

ALJ Decision at 5-6.

The ALJ's analysis is correct. In the context of section 1128(a)(1), the nature of a petitioner's conviction, i.e., misdemeanor versus felony, is irrelevant. If a petitioner is convicted of any criminal offense related to the delivery of an item or service under Medicaid, the petitioner shall be excluded.

Moreover, this discussion makes it clear that the ALJ was well aware of the nature of Petitioner's offense, despite his misstatement, in setting the permissible portion of the exclusion. Thus, the ALJ's mischaracterization in the challenged FFCLs of Petitioner's plea does not alter the outcome of this case.

Petitioner did not challenge any of the other FFCLs supporting the ALJ's conclusion upholding the I.G.'s proposed ten-year exclusion under the applicable standards, and we therefore affirm them.

Conclusion

Based on the preceding analysis, we affirm and adopt 13 of the 15 FFCLs upon which the ALJ Decision, excluding Petitioner from Medicaid for 10 years, was based. Additionally, we modify

FFCLs 4 and 10 to read as follows:

4. On April 7, 1999, Petitioner pled guilty to count two of the Indictment, a misdemeanor, in violation of California Penal Code section 487 and on that date the California court accepted Petitioner's guilty plea. I.G. Ex. 4.

* * *

10. Petitioner's conviction for a misdemeanor is related to the delivery of a health care item or service

under the Medicare/Medicaid programs within the meaning of section 1128(a)(1) of the Act.

JUDGE
...TO TOP

Cecilia Sparks Ford

Donald F. Garrett

M. Terry Johnson
Presiding Board Member

FOOTNOTES
...TO TOP

1. Hereafter, we refer to these programs generally as "Medicaid".

CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES