Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Jacqueline L. Dennis, R.N., DATE: December 1, 1995
Petitioner,

Docket No. C-95-124
Decision No. CR404

-v-

The Inspector General.

DECISION

By letter dated April 17, 1995, Jacqueline L. Dennis,
R.N., the Petitioner herein, was notified by the
Inspector General (I.G.), of the U.S. Department of
Health & Human Services (HHS), that it had been decided
to exclude Petitioner for a period of five years from
participation in the Medicare program and from
participation in the State health care programs described
in section 1128(h) of the Social Security Act (Act),
which are referred to herein as "Medicaid." The I.G.'s
rationale was that exclusion, for at least five years, is
mandated by sections 1128(a)(2) and 1128(c)(3)(B) of the
Act because Petitioner had been convicted of a criminal
offense relating to the neglect or abuse of patients in
connection with the delivery of a health care item or
service.

Petitioner filed a request for review of the I.G.'s
action by an administrative law judge of the Departmental
Appeals Board (DAB). During the prehearing conference
call with the parties on May 26, 1995, both parties
agreed that the case could be decided by submission of
written documentation and that an in-person evidentiary
hearing was not necessary. Order and Schedule for Filing
Briefs and Documentary Evidence, dated June 1, 1995.

Because I determined that there are no facts of
decisional significance genuinely in dispute, and that
the only matters to be decided are the legal implications
of the undisputed facts, I have decided the case on the
basis of the parties' written submissions.
2

I find no reason to disturb the I.G.'s determination to
exclude Petitioner from participation in the Medicare and
Medicaid programs for a period of five years.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. During the period relevant to this case, Petitioner
was a registered nurse in Rochester, New York.

2. On March 16, 1994, Petitioner was charged in a
criminal information, brought in the City Court of
Rochester, County of Monroe, with four counts of willful
violation of the health laws, in violation of section 12-
b(2) and 2803-d(7) of the New York State Public Health
Law and Part 81.1(c) of the regulations promulgated
thereunder and three counts of falsifying business
records in the second degree, in violation of section
175.05(1) of the New York State Penal Law. I1.G. Exs. 1,

3. The information alleged that Petitioner, while
working at St. Ann's Home for the Aged in Rochester, New
York, had willfully failed to provide appropriate
treatment to patients in her care by failing to irrigate
a patient's catheter, even though this had been ordered
by the doctor, and by failing to properly treat bedsores
of two other patients as had been ordered by their
physicians. Allegedly, Petitioner thereupon made false
entries on these patients' charts to falsely indicate
that she had performed these services. I.G. Exs. 1, 4 -
6.

4. On August 31, 1994, Petitioner was found guilty after
a jury trial of four counts of willful violation of the
health laws and three counts of falsifying business
records in the second degree. I1.G. Exs. 7, 8.

5. On October 25, 1994, Petitioner was sentenced to 60
days in jail, three years' probation, and a $500 fine.
I.G. Ex. 9 at 16 - 17.

6. On June 13, 1994, in a separate criminal proceeding
in the County of Monroe, Gates Town Court, Petitioner was
charged with two counts of willful violation of the
health laws, in violation of section 12-b(2) and 2803-
d(7) of the New York State Public Health Law and Part
81.1(c) of the regulations and two counts of falsifying
business records in the second degree, in violation of
section 175.05(1) of the New York State Penal Law. I.G.
Exs. 10, 16.
3

7. The criminal information in Finding 6 alleged that
Petitioner, while employed as a registered nurse at
Westgate Nursing Home in Gates, New York, willfully
failed to provide adequate and appropriate services,
treatment, and care to two patients by failing to perform
a blood glucose test as ordered by these patients'
physicians, and then, with intent to defraud, did make
false entries in their medical charts indicating that the
patients had certain blood glucose values when, in fact,
these tests had not been done. I.G. Exs. 10 - 13.

8. On November 16, 1994, Petitioner pled guilty in the
Gates Justice Court to one count of willful violation of
the health laws in satisfaction of the four-count
criminal information and was sentenced to 60 days in jail
and three years' probation to run concurrently with the
sentence Petitioner received in October for her previous
conviction. Finding 6; I.G. Exs. 14, 15.

9. It is undisputed that the individuals neglected or
abused by Petitioner were patients at either St. Ann's
Home for the Aged or the Westgate Nursing Home at the
time, and that Petitioner had been expressly assigned to
care for them. I.G. Exs. 1 - 6, 11 - 14.

10. On April 17, 1995, the I.G. notified Petitioner that
she was being excluded for a period of five years from
participation in the Medicare and Medicaid programs based
on her conviction, in the State of New York, Monroe
County Court, of a criminal offense relating to neglect
or abuse of patients in connection with the delivery of a
health care item or service.

11. The Secretary of HHS has delegated to the I.G. the
authority to determine, impose, and direct exclusions
pursuant to section 1128 of the Act. 48 Fed. Reg. 21,662
(May 13, 1983).

12. The entry of a judgment of conviction against
Petitioner in the County of Monroe, in either the City
Court of Rochester or the Gates Town Court, constitutes a
conviction of a criminal offense within the meaning of
section 1128(a)(2) and 1128(a)(i) of the Act. I.G. Ex.
8.

13. The convictions of the criminal offenses at issue
here relate to the neglect or abuse of patients and is
connected with the delivery of a health care item or
service, within the meaning of section 1128(a)(2) of the
Act.
4

14. Pursuant to section 1128(a)(2) of the Act, the I.G.
is required to exclude Petitioner from participating in
Medicare and Medicaid.

15. The minimum mandatory period of exclusion pursuant
to section 1128(a)(2) is five years. Act, section
1128(c) (3) (B).

16. Under section 1128(a)(2) of the Act, the fact that a
conviction within the meaning of section 1128(i) has
occurred mandates exclusion.

17. Neither the I.G. nor an administrative law judge is
authorized to reduce the length of a mandatory five-year
period of exclusion.

18. The I.G. properly excluded Petitioner from
participation in Medicare and Medicaid for a period of
five years pursuant to sections 1128(a) (2) and
1128(c)(3)(B) of the Act.

DISCUSSION

The I.G. excluded Petitioner from participating in
Medicare and directed that Petitioner be excluded from
participating in Medicaid, pursuant to section 1128 (a) (2)
of the Act. This section mandates the exclusion of
individuals who are:

convicted, under Federal or State law, of a criminal
offense relating to neglect or abuse of patients in
connection with the delivery of a health care item
or service.

The I.G.'s authority to impose and direct an exclusion
under section 1128(a)(2) is based on the fulfillment of
the following statutory criteria: (1) conviction of a
criminal offense, (2) relating to neglect or abuse, (3)
of patients, and (4) in connection with the delivery of a
health care item or service.

The law relied upon by the I.G. to exclude Petitioner
requires, initially, that Petitioner has been convicted
of a criminal offense. Petitioner, a registered nurse,
was charged with unlawfully failing to care for several
elderly individuals at St. Ann's Home for the Aged who
had been entrusted to her for care. A jury found
Petitioner guilty of violating New York law and a judge
sentenced her. Additionally, in a separate criminal
proceeding, Petitioner was convicted of a willful
violation of the public health laws in connection with
5

her failure to administer a blood glucose test to a
patient in the Westgate Nursing Home.

Section 1128(i) of the Act provides that an individual
will be deemed "convicted" under any of the following
circumstances:

(1) when a judgment of conviction has been entered
against the individual or entity by a Federal,
State, or local court, regardless of whether there
is an appeal pending or whether the judgment of
conviction or other record relating to criminal
conduct has been expunged;

(2) when there has been a finding of guilt against
the individual or entity by a Federal, State, or
local court;

(3) when a plea of guilty or nolo contendere by the

individual or entity has been accepted by a Federal,

State, or local court; or

(4) when the individual or entity has entered into
participation in a first offender, deferred
adjudication, or other arrangement or program where
judgement of conviction has been withheld.

In the case at hand, sections 1128(i)(1) and (2) both

apply and thus I find Petitioner "convicted" for purposes

of the mandatory exclusion law.

Next, the statute requires that the criminal activity
must have been related to the delivery of health care
items or services (although not necessarily related to
the Medicaid or Medicare programs). It is undisputed
that Petitioner was employed as a registered nurse at
both St. Ann's Home for the Aged and Westgate Nursing
Home and that the victims were patients who had been
formally placed in her care. It is also true that, in
the circumstances surrounding each of her convictions,
Petitioner failed to provide services to patients and
then falsified records to indicate that she had provided
these services. Thus, Petitioner's entire relationship
with these individuals, including the crimes she
committed against them, was based upon the delivery of
health care items or services, as required by section
1128 (a) (2).

The final requirement of section 1128(a)(2) is that the
persons victimized have been subjected to neglect or

abuse. Although neither of these terms is defined in the

statute, I regard it as self-evident that Petitioner's
6

violation of physicians' direct orders by failing to (1)
irrigate a patient's catheter; (2) properly treat two
patients' bedsores; and (3) administer a blood glucose
test resulted in these patients suffering pain or harm
and constitutes neglect and abuse within the meaning of
the statute. Petitioner's attempts to hide her misdeeds
by falsifying patients’ charts to give the impression
that she had performed services which she did not also
constitutes neglect and abuse under the statute.

Petitioner claims that she has been wrongly accused and
is not guilty of the offenses of which she has been
convicted. Specifically, Petitioner claims that she did
not receive a fair trial in the City Court of Rochester
in that the judge was biased against her, her colleagues
lied under oath, and her attorney was not diligent in
presenting her case. These allegations, however, are not
relevant here. Petitioner may not use these
administrative proceedings to relitigate questions
presented to and resolved by the State court. The
statute requires that the Petitioner only be "convicted."
If Petitioner believes that she was unfairly convicted,
she may pursue this question in the State or federal
courts, but not in this forum. Under section 1128(a) (2),
proof that a relevant criminal conviction has occurred
ends the inquiry as to whether mandatory exclusion is
justified. DeWayne Franzen, DAB 1165 (1990). I am not
authorized to look beyond the fact of conviction, or
entertain claims of innocence, or consider evidence
intended to mitigate the minimum exclusionary period.
Consequently, Petitioner's explanations are not relevant
or material to the outcome of this case.

CONCLUSION

Petitioner's exclusion, for at least five years, is
mandated by sections 1128(a) (2) and 1128(c)(3)(B) of the
Act because of either of her convictions of a criminal
offense relating to the neglect or abuse of patients in
connection with the delivery of a health care item or
service.

/s/

Joseph K. Riotto
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Louis Mathews, DATE: November 24, 1995
Petitioner,

Docket No. C-95-104
Decision No. CR403

-v-

The Inspector General.

DECISION

This case is before me on the exclusion of Louis Mathews
(Petitioner) from participation in the Medicare, Maternal
and Child Health Services Block Grant, Block Grants to
States for Social Services programs, and from the State
health care programs described in section 1128(h) of the
Social Security Act (Act) (hereafter, I refer to all
programs, other than Medicare, as "Medicaid") for a
period of three years, pursuant to the permissive
exclusion provisions of section 1128(b)(3) of the Act.

In a letter dated February 3, 1995 (Initial Notice), the
Inspector General (1.G.) informed Petitioner that he
would be excluded pursuant to the mandatory exclusion
provision of section 1128(a)(1) of the Act. Petitioner
requested a hearing and the case was assigned to me. I
conducted a prehearing conference in this case on April
21, 1995.

As I noted in my Prehearing Order of April 25, 1995, at
the prehearing conference, counsel for the I.G. informed
Petitioner that the Initial Notice was incorrect and
moved to either issue a new notice letter or amend the
Initial Notice to reflect that Petitioner had been
excluded for a period of three years pursuant to section
1128(b)(3) of the Act. Petitioner consented to the
I.G.'s motion to amend the Initial Notice, stating that
there was no need for the I.G. to issue a new notice
letter.
2

On May 10, 1995, the I.G. issued an amended notice
(Amended Notice) that made clear that Petitioner was
being excluded for a period of three years pursuant to
section 1128(b)(3) of the Act based upon Petitioner's
conviction of a criminal offense related to the unlawful
manufacture, distribution, prescription, or dispensing of
a controlled substance. I.G. Ex. 6. The Amended Notice
further stated that Petitioner's three-year exclusion
period was arrived at by taking into account the fact of
Petitioner's conviction and the lack of any aggravating
or mitigating factors.

As the parties have agreed that there are no facts of
decisional significance genuinely in dispute in this
case, and that the only matters to be decided are the
legal implications of the undisputed facts, the parties
wished to proceed by filing briefs and exhibits and I
have decided this case on the basis of the parties’
submissions. !

I find that the record in this case establishes that
Petitioner was properly excluded from participation in
the Medicare and Medicaid programs for a period of three
years pursuant to section 1128(b)(3) of the Act.

APPLICABLE LAW

This case is controlled by section 1128(b)(3) of the Act,
which provides that:

The Secretary may exclude the following individuals
and entities from participation in any program under
title XVIII and may direct that the following individuals
and entities be excluded from participation in any State
health care program:

«+ + + (3) CONVICTION RELATING TO CONTROLLED
SUBSTANCE. - Any individual or entity that has
been convicted, under Federal or State law, of
a criminal offense relating to the unlawful
manufacture, distribution, prescription, or
dispensing of a controlled substance. ...

' I refer to the parties' exhibits as P. Ex.
(number) and I.G. Ex. (number), respectively. Petitioner
submitted nine exhibits in conjunction with his brief. I
receive P. Ex. 1 through 9, inclusive, into evidence. The
I.G. submitted eight exhibits in conjunction with her
brief. I receive I.G. Ex. 1 through 8, inclusive, into
evidence.
3
FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. During the period relevant to this case, Petitioner
was a Physician Assistant licensed in the State of
California. P. Ex. 3.

2. On March 31, 1993, the State of California filed a
criminal complaint against Petitioner, charging him with
four separate felony counts as follows: 1) knowingly
prescribing a controlled substance (codeine) without any
good faith belief that it was for a medical purpose; 2)
unlawful furnishing by prescription; 3) uttering a forged
prescription for codeine; and 4) practicing medicine
without a license. I.G. Ex. 7.

3. On July 5, 1994, Petitioner entered into a plea
agreement in the Superior Court of California, County of
San Bernadino, whereby the court accepted Petitioner's
plea of nolo contendere to a misdemeanor count of
prescribing without a medical purpose (formerly the
felony contained in count I of the complaint) and the
court agreed to dismiss the remaining counts against
Petitioner. P. Ex. 5; I.G. Ex. 1, 2, 4.

4. The section of the California law to which Petitioner
pled nolo contendere spells out the legal requirements
for prescribing and dispensing controlled substances, and
details the penalty for knowing violation of these
requirements. I.G. Ex. 1- 4.

5. At the time he entered his plea, Petitioner was
explicitly informed by the State judge presiding over his
plea that Petitioner could be excluded as a provider in
the Medicare or Medicaid programs. P. Ex. 5.

6. Petitioner was made aware that his plea agreement
would bar only the State of California Attorney General's
Office taking further administrative action against him
and that his plea agreement would not preclude a federal
entity from excluding him from Medicare or Medicaid. P.
Ex. 5; I.G. Ex. 4.

7. Petitioner was sentenced by the State court to 240
hours of community service, $1000 restitution, and
probation for three years. I.G. Ex. 2, 4.

8. Petitioner's plea of nolo contendere and the
California court's acceptance of that plea constitutes a
"conviction" for purposes of section 1128(i)(1) and (3)
of the Act. Act, section 1128(i)(1) and (3); Findings of
Fact and Conclusions of Law (Findings) 3, 7.
4

9. The permissive exclusion provisions of section
1128(b) (3) do not require that a conviction have a nexus
to the Medicare or Medicaid programs, they require only
that a conviction be related to the unlawful manufacture,
distribution, prescription or dispensing of a controlled
substance. Act, section 1128(b) (3).

10. Petitioner's conviction is related to the unlawful
prescription or dispensing of a controlled substance.
Findings 2 - 4; I.G. Ex. 1 - 4, 7; P. Ex. 5.

11. An exclusion imposed pursuant to section 1128(b) (3)
of the Act will be for a period of three years, unless
specified aggravating or mitigating factors are present.
42 C.F.R. § 1001.401(c) (1).

12. An aggravating factor that may be used as a basis
for lengthening a period of exclusion above three years
is that the acts that resulted in the conviction or
similar acts were committed over a period of one year or
more. 42 C.F.R. § 1001.401(c) (2) (i).

13. An aggravating factor that may be used as a basis
for lengthening a period of exclusion above three years
is that the acts that resulted in conviction or similar
acts had a significant adverse physical, mental, or
financial impact on program beneficiaries or other
individuals in the Medicare or State health care
programs. 42 C.F.R. § 1001.401(c) (2) (ii).-

14. An aggravating factor that may be used as a basis
for lengthening a period of exclusion above three years
is that the sentence imposed by the court included
incarceration. 42 C.F.R. § 1001.401(c) (2) (iii).

15. An aggravating factor that may be used as a basis
for lengthening a period of exclusion above three years
is that the convicted individual or entity has a prior
criminal, civil, or administrative sanction record. 42
C.F.R. § 1001.401(c) (2) (iv).

16. The I.G. has not alleged that any of the aggravating
factors that are specified in the regulations are present
in this case.

17. The record in this case does not support the
presence of any of the aggravating factors. I.G. Ex. 1 -
8; P. EX. 1 - 9.

18. Mitigating factors that may be used as a basis for
decreasing the period of exclusion is that the
individual's or entity's cooperation with federal or
5

State officials resulted in others being convicted or
excluded from Medicare or Medicaid, or the imposition of
a civil monetary penalty against others. 42 C.F.R. §
1001.401(c) (3) (i) (A) and (B).

19. A mitigating factor that may be used as a basis for
decreasing the period of exclusion is that alternative
sources of the type of health care items or services
furnished by the individual or entity are not available.
42 C.F.R. § 1001.401(c) (3) (ii).

20. Petitioner has alleged that information he gave to
the I.G. office in San Diego in 1990 led to the arrest
and conviction of another individual.

21. There is nothing in the record other than
Petitioner's assertion to support that Petitioner's
cooperation with the I.G.'s office led to the arrest and
conviction of another individual.

22. The record in this case does not support the
presence of any of the mitigating factors. I.G. Ex. 1 -
8; P. Ex. 1- 9.

23. Petitioner was properly excluded for a period of
three years pursuant to section 1128(b)(3). Findings 1 -
22.

24. There is no basis for either increasing or
decreasing Petitioner's three-year exclusion. Findings 1
- 23.

25. Petitioner's contention that he recommended a
treatment plan only, and did not unlawfully prescribe or
dispense a controlled substance, is a collateral attack
on his conviction and is contradicted by the evidence of
record. I.G. Ex. 1 - 8; P. Ex. 1 - 9; Douglas Schram,
R.Ph., DAB 1372, at 2 - 3 (1992); Sonia M. Geourzoung
M.D., DAB CR286 (1993); Peter J. Edmonson, DAB 1330
(1990); Joel Fass, DAB CR349 (1994).

26. Petitioner may not use these proceedings to
collaterally attack his conviction. Peter J. Edmonson,
DAB 1330 (1992); Roger Littge, M.D., DAB CR302 (1994);
Joel Fass, DAB CR349 (1994).

27. Petitioner was properly excluded for three years,
pursuant to section 1128(b)(3) of the Act. Findings 1 -
26.
6
PETITIONER'S ARGUMENTS

Petitioner maintains that he acted in accord with the
instructions and general policies of his supervising
physician when he wrote the prescription in question.
Therefore, he believes that he did not unlawfully
distribute a controlled substance as charged by the
State.

Petitioner contends that the mitigating factor at 42

C.F.R. § 1001.401(c) (3) (i) (A) is applicable to this case

because he allegedly provided information to the I.G.

which resulted in the conviction of another individual.

Petitioner argues that the State Attorney General made an
assurance to him in the context of his plea bargain that

is binding upon the I.G. and would preclude the I.G.
excluding him. Finally, Petitioner contends that a
three-year suspension is unduly harsh when compared to
the severity of the acts underlying his conviction.

DISCUSSION

The statute under which the I.G. seeks to exclude

Petitioner -- section 1128(b)(3) of the Act -- requires,

initially, that Petitioner have been convicted of a
criminal offense.

Section 1128(i) of the Act provides that an individual
will be deemed "convicted" under any of the following
circumstances --

(1) when a judgment of conviction has been entered

against the individual or entity by a Federal,

State, or local court, regardless of whether there

is an appeal pending or whether the judgment of
conviction or other record relating to criminal
conduct has been expunged;

(2) when there has been a finding of guilt against

the individual or entity by a federal, State, or
local court;

(3) when a plea of guilty or nolo contendere by the
individual or entity has been accepted by a federal,
State, or local court; or

(4) when the individual or entity has entered into
participation in a first offender, deferred
adjudication, or other arrangement or program where
judgement of conviction has been withheld.
7

In the case at hand, sections 1128(i)(1) and (3) are
applicable. Petitioner pled nolo contendere and the
court accepted such plea and imposed a sentence.
Therefore, Petitioner was convicted within the meaning of
section 1128(i) of the Act.

As to the nature of Petitioner's offense, the record
establishes that the court's acceptance of his plea of
nolo contendere was based on Petitioner violating a
California law which prohibits the prescribing or
dispensing of a controlled substance without a proper
medical basis. Findings 2 - 4. The record reveals that
codeine was the controlled substance that Petitioner
unlawfully and knowingly prescribed or dispensed without
a proper medical basis. I.G. Ex. 1 - 4, 7; Findings 2 -
4, 10.

As to the term of Petitioner's exclusion, the controlling
regulation, 42 C.F.R. § 1001.401(c) provides that "an
exclusion imposed in accordance with this section will be
for a period of 3 years, unless aggravating or mitigating
factors listed in paragraphs (b)(2) and (b)(3) of this
section form a basis for lengthening or shortening that
period."

There are four aggravating factors in the regulations.
The first two aggravating factors exist if the acts that
resulted in the conviction, or similar acts, were
committed over a period of one year or more; or had a
significant adverse physical, mental, or financial impact
on program beneficiaries or other individuals or the
Medicare/Medicaid programs. 42 C.F.R. §

1001.401(b) (2)(i) - (ii). The final two aggravating
factors are present if the sentence imposed by the court
included incarceration, or if the convicted individual
has a prior criminal, civil, or administrative sanction
record. 42 C.F.R. § 1001.401(b) (2) (iii) - (iv).

In this case, the I.G. has not alleged the existence of
any aggravating factors, nor is there any evidence of
aggravating factors. Findings 12 - 17.

The regulations set out two mitigating factors. It isa
mitigating factor if the individual's cooperation with
federal or State officials resulted in the conviction,
exclusion, or imposition of a civil monetary penalty. 42
C.F.R. § 1001.401(b) (3) (i) (A) and (B). It is also a
mitigating factor if alternative sources of the type of
health care items or services furnished by the individual
or entity are not available. 42 C.F.R. §

1001.401(c) (3) (B)-
8

Petitioner alleged that his cooperation with I.G.'s San
Diego office resulted in the conviction of another
individual in 1990, but did not offer any documentation
to support this contention. The burden is on the
Petitioner to establish mitigating factors. Jose Ramon
Castro, M.D., DAB CR259 (1993); James H. Holmes, DAB
CR270 (1993); Joel Fass, DAB CR349 (1994). Petitioner
has failed to meet that burden because he did not offer
proof of his allegation and he failed to establish that
his allegation, even if true, is in any way related to
the events in this case. Moreover, Petitioner alleges
that his cooperation happened in 1990 and he was not
charged with his offense until 1993, which casts doubt
upon his assertion. I.G. Ex. 1 - 4, 7. Accordingly,
there is no mitigating factor. Findings 18 - 22.

Petitioner contends that he acted appropriately and that
his conviction was based only on the recommendation of a
treatment plan to a patient. I take Petitioner's
contention to mean that he believes he was wrongfully
convicted of an offense which he did not really commit.
However, Petitioner may not use this forum to
collaterally attack his conviction. Peter J. Edmonson,
DAB 1330 (1992). The regulations specifically provide
that, in circumstances such as this case, where the
exclusion is based on the fact of conviction, ". . . the
basis for the underlying determination is not reviewable
and the individual or entity may not collaterally attack
the underlying determination, either on substantive or
procedural grounds." 42 C.F.R. § 1001.2007(d); Joel
Fass, DAB CR349 (1994); Roger O. Littge, M.D., DAB CR302
(1994). Accordingly, I cannot consider Petitioner's
contention that he was wrongly convicted.

Petitioner argues that he should not be subject to an
exclusion because the State Attorney General's Office
agreed, as a condition of Petitioner's plea, not to
initiate any adverse administrative action against him.
The record reflects, however, that the State judge who
accepted Petitioner's plea went to great lengths to
ensure that Petitioner was made aware that he could still
be subject to an exclusion based on action taken by
federal authorities, such as the I.G. Findings 5 - 6.
Moreover, even if I were to accept Petitioner's assertion
as true, any such assurance made by a State attorney
general would not be binding upon the I.G. Anthony
Accaputo, Jr., DAB CR249 (1993), aff'd DAB 1416 (1993).

Finally, Petitioner contends that a three-year period of
exclusion is unduly harsh. However, the three-year
period of exclusion is mandated by regulation where, as
here, there is a lack of aggravating or mitigating
9

factors. 42 C.F.R. § 1001.401(c)(1). I am bound by the
regulations, and I have no authority to modify the three-
year exclusion absent the existence of aggravating or

mitigating factors. Roger 0. Littge, M.D., DAB CR302
(1994).

CONCLUSION

Petitioner was properly excluded for a three-year period
pursuant to section 1128(b)(3) of the Act.

/s/

Joseph K. Riotto
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Kathleen M. Casey DATE: November 13, 1995
Petitioner,

Docket No. C=95~-138
Decision No. CR401

-v-

The Inspector General.

DECISION

By letter dated April 14, 1995, Kathleen M. Casey, the
Petitioner herein, was notified by the Inspector General
of the U.S. Department of Health & Human Services (I.G.),
that it had been decided to exclude Petitioner for a
period of five years from participation in the Medicare
program and from participation in the State health care
programs defined in section 1128(h) of the Social
Security Act (Act), which are referred to herein as
"Medicaid." The I.G.'s rationale was that exclusion, for
at least five years, is mandated by sections 1128(a) (1)
and 1128(c)(3)(B) of the Act because Petitioner had been
convicted of a criminal offense related to the delivery
of an item or service under Medicaid.

Petitioner requested a review of the I.G.'s action by an
administrative law judge (ALJ) of the Departmental
Appeals Board (DAB). I conducted a prehearing conference
in this case on June 20, 1995, at which time the parties
agreed that there were no genuine issues of material fact
which need to be resolved by an in-person hearing.
Accordingly, I established a schedule for the parties to
file briefs and documentary evidence. In her initial
brief, the I.G. moved for summary disposition.

Petitioner filed a response and the I.G. filed a reply.

Because I have determined that there are no facts of
decisional significance genuinely in dispute, and that
the only matters to be decided are the legal implications
of the undisputed facts, I have decided the case on the
basis of the parties' written submissions.
2

I find no reason to disturb the I.G.'s determination to
exclude Petitioner from participation in the Medicare and
Medicaid programs for a period of five years.

APPLICABLE LAW

Sections 1128(a) (1), and 1128(c)(3)(B) of the Act make it
mandatory for any individual who has been convicted of a
criminal offense related to the delivery of an item or
service under Medicare or Medicaid to be excluded from
participation in such programs for a period of at least
five years.

FINDINGS OF FACT AND CONCLUSIONS OF LAW !

1. As a part of its function, Medicaid administers the
personal care attendant program, which provides benefits
to eligible permanently or chronically disabled
recipients who need assistance in their activities of
daily living so that they can remain in the community and
out of institutional settings. I.G. Ex. 3.

2. Petitioner was a personal care attendant who received
reimbursement from Medicaid for furnishing items or
services to two mentally retarded individuals living in
her home. P. Ex. 2; I.G. Ex. 1, 3.

3. Petitioner was indicted on May 19, 1994, by the
Commonwealth of Massachusetts, on charges of Larceny By
False Pretenses (obtaining money from the Massachusetts
Department of Public Welfare by making false
representations) and Medicaid False Claims (knowingly and
willfully causing false statements in applications for
payments from Medicaid). I.G. Ex. 1, 2.

4. On November 17, 1994, Petitioner pled guilty in
Suffolk Superior Court to two counts of Larceny By False
Pretenses and one count of Medicaid False Claims. I.G.
Ex. 3, 4, 5.

' Y admit into evidence Petitioner's Exhibits (P.
Ex.) 1 and 2 and I.G. Exhibits (I.G. Ex.) 1- 8. I
reject I.G. Ex. 9, which is a copy of the notice letter
informing Petitioner of her exclusion. In my Order of
June 22, 1995, I instructed the parties not to file the
notice letter as an exhibit.
3

5. A Massachusetts State court accepted Petitioner's
plea and entered judgment against Petitioner, sentencing
Petitioner to one year's imprisonment (consisting of
seven days actual incarceration with the remaining 358
days to be under supervised probation) and requiring
Petitioner to pay $16,000 restitution. P. Ex. 2; I.G.
Ex. 4, 5.

6. Petitioner's plea of guilty and the Massachusetts
court's acceptance of that plea constitute a valid
conviction for purposes of section 1128(i)(1) and (3) of
the Act.

7. The offenses to which Petitioner pled guilty are
program-related within the meaning of section 1128(a) (1)
of the Act. P. Ex. 2; I.G. Ex. 1 - 7.

8. Exclusion from the Medicare and Medicaid programs
pursuant to section 1128(a) is remedial in nature.
Mannochio v. Kusserow, 961 F.2d 1539, 1541 (11th Cir.
1992); Kahn v. Inspector General of U.S. Department of

Health and Human Services, 848 F. Supp. 432 (S.D.N.Y.
1994); Westin'v. Shalala, 845 F. Supp. 1446 (D. Kan.
1994); Jack W. Greene, DAB CR19 (1989), aff'd DAB 1078

(1989), aff'd sub nom Greene v. Sullivan, 731 F. Supp.
838 (E.D. Tenn. 1990).

9. Petitioner's argument that her conviction was
obtained by fraud is a collateral attack on her
conviction, and I do not have the authority to consider
that defense. Douglas Schram, M.D., DAB 1372 (1992);
Sonia M. Gerzoung, M.D., DAB CR286 (1993); Peter J.

Ed , DAB 1330 (1992).

10. I am without authority to alter the date on which
Petitioner's exclusion begins.

11. Petitioner must be excluded from being a provider in
the Medicare and Medicaid programs for a five year
mandatory period. Act, Section 1128(a) (1); Prabha
Prakash, M.D., DAB CR265 (1993); Arthur B. Stone, D.P.M.,
DAB CR26 (1989); Elsbeth Barnes, DAB CR340 (1994).

PETITIONER'S ARGUMENT

Petitioner contends that her exclusion is punitive rather
than remedial. She asserts also that her guilty plea was
obtained by fraudulent means and therefore cannot serve
as basis for an exclusion under section 1128(a) (1).
Further, she maintains that, inasmuch as she ceased work
in the mental health field in June 1994, she should be
4

credited with this time against the five-year exclusion
period.

DISCUSSION

The statute under which the I.G. seeks to exclude
Petitioner -- section 1128(a)(1) of the Act -- requires,
initially, that Petitioner have been convicted of a
criminal offense.

Section 1128(i) provides that an individual will be
deemed "convicted" under any of the following
circumstances:

(1) when a judgment of conviction has been entered
against the individual or entity by a Federal,
State, or local court, regardless of whether there
is an appeal pending or whether the judgment of
conviction or other record relating to criminal
conduct has been expunged;

(2) when there has been a finding of guilt against
the individual or entity by a Federal, State, or
local court;

(3) when a plea of guilty or nolo contendere by the
individual or entity has been accepted by a Federal,
State, or local court or

(4) when the individual or entity has entered into
participation in a first offender, deferred
adjudication, or other arrangement or program where
judgement of conviction has been withheld.

In the case at hand, sections 1128(i)(1) and (3) are
obviously applicable. The uncontested facts are that
Petitioner pled guilty and the court accepted her plea.

Next, section 1128(a)(1) requires that Petitioner's
criminal conviction must be related to the delivery of an
item or service under Medicare or Medicaid. A conviction
meets this statutory test where there is a nexus or
common sense connection between the criminal offense for
which the petitioner has been convicted and the delivery
of an item or service under Medicare or Medicaid.

Carolyn Nagy, DAB CR182 (1992); Berton Siegel, D.O., DAB
1467 (1994).

In this regard, the record reveals that the two offenses
to which Petitioner pled guilty (one count of willfully
causing false statements or representations to be made in
5

application for a Medicaid benefit payment and two counts
of obtaining money from the Massachusetts Department of
Public Welfare by false pretenses) are both program-
related. Petitioner's misrepresentations resulted in her
being paid by Medicaid for services she did not, in fact,
provide.

The factual background of Petitioner's illicit activities
involves Petitioner acting as a personal care attendant
for two mentally retarded individuals living in her home.
I.G. Ex. 1, 3; Findings of Fact and Conclusions of Law
(FFCL) 1, 2. Petitioner was charged with administering
care to these two individuals in exchange for
reimbursement from Medicaid. As part of her function as
personal care attendant for these two individuals,
Petitioner was to keep records of the services she
provided so that Medicaid could reimburse her for those
services. I.G. Ex. 3; FFCL 1, 2. However, instead of
keeping accurate records, Petitioner made willful and
knowing misrepresentations on time sheets, knowing that
these misrepresentations would result in Medicaid
reimbursing her for services she did not, in fact,
provide. Both Petitioner's guilty plea to larceny and
her guilty plea to making false statements stem from her
making knowing and willful misrepresentations to the
Medicaid program. As such, her conviction is program-
related within the meaning of section 1128(a) (1).

Additionally, it is well established that convictions for
financial crimes, such as the filing of false claims for
reimbursement from Medicare or Medicaid, are program
related within the meaning of section 1128(a)(1). Jack
W. Greene, DAB CR19, aff'd DAB 1078 (1989), aff'd Greene
yv. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990). In
this case, Petitioner's criminal conviction meets this
test because it directly caused Medicaid to overpay
Petitioner. Moreover, Medicaid was the victim of
Petitioner's crime. Criminal convictions that are based
on the filing of false claims are program-related within
the meaning of section 1128(a)(1) and require that a
minimum mandatory five-year exclusion be imposed against
the perpetrator. Ian Cc. Klein, D.P.M., DAB CR177 (1992);
Nicholas J. Penna, D.M.D., DAB CR338 (1994).

Petitioner contends that the imposition of a five-year
mandatory exclusion against her is punitive rather than
remedial. While it is true that a second punishment for
the same offense could be violative of the Double
Jeopardy Clause of the United States Constitution, such
is not the case here. Also, appellate panels of the DAB
and several federal courts have considered whether the
imposition of an exclusion subsequent to a criminal
6

punishment for the same offense is constitutional and
have held that the exclusion does not violate the Double
Jeopardy Clause. Rather, the legislative history of the
Act and the language in decisions upholding the exclusion
reflect a remedial statutory purpose to enable the
Secretary to protect the integrity of federally-funded
health care programs. S. Rep. No. 109, 100th Cong, 1st
sess. 1-2 (1987), reprinted in 1987 U.S.C.C.A.N. 682;

Mannochio v. _Kusserows 961 F.2d 19994 1541 (11th Cir.

1992); ns) A 2.

Health and fuman services. 848 F. Sup. 432 (S.D.N.Y.
1994); Westin v. Shalala, 845 F. Supp. 1446 (D. Kan.
1994).

Additionally, Petitioner asserts that her conviction was
obtained by fraudulent means, alleging that the
prosecutor told her that a guilty plea would have no
adverse effect on her ability to work in her former
profession. Petitioner asserts also that her conviction
caused her to cease working in the health field in June
1994, and that, accordingly, she should be credited with
this time against the five-year exclusion period.
However, these arguments, too, do not avail her, since it
is well established that, where the I.G. excludes an
individual under the mandatory provisions of the Act, the
minimum period of exclusion is fixed by statute and is
justified by the conviction alone. Ni jal

M.D., et al., DAB CR171 (1992) at 2; 42 C.F.R.
1001.2007(d). Thus, in the case at hand, where the
record shows that Petitioner was convicted of a program
related offense, there is nothing left for the I.G. to
prove. Petitioner cannot use these administrative
proceedings to collaterally attack her prior conviction
by arguing that she was induced by fraud to plead to an
offense for which she was not really guilty. Douglas
Schram, R.Ph., DAB 1372, at 12 - 13 (1992); Sonia M.
Geourzoung, M.D., DAB CR286 (1993); Peter J. Edmonson,
DAB 1330 (1992).

Finally, I note that I have no authority to alter the
effective date of an exclusion directed and imposed by
the I.G. where the I.G. has acted within the discretion
afforded by the statute and regulations in establishing

the effective date of the exclusion. Shanti Jain, M.D.,
DAB 1398 (1993); Douglas Schram, M.D., DAB 1372 (1992);
Fred R. Spierer, DAB CR359 (1995). Petitioner has made

no showing that the I.G.'s imposition of an exclusion
upon her was unreasonably delayed. In any event, this is
not the appropriate forum for a challenge of that type.
7
CONCLUSION

Petitioner's exclusion, for at least five years, is
mandated by sections 1128(a)(1) and 1128(c)(3)(B) of the
Act because of her conviction of a criminal offense
related to the delivery of an item or service under
Medicaid.

/s/
Joseph K. Riotto

Administrative Law Judge