Paul L. Grazia, DAB CR5773 (2020)

DECISION

Petitioner, Paul L. Grazia, requested a hearing regarding the Inspector General’s (IG’s) determination to exclude him from participation in Medicare, Medicaid, and all federal health care programs under section 1128(a)(1) of the Social Security Act (Act).  Petitioner concedes that the IG has a basis to exclude him.  Petitioner’s sole argument is that he is eligible for a waiver of the exclusion pursuant to 42 C.F.R. § 1001.1801.  The decision to grant or deny a waiver request is a matter of the IG’s discretion and is not subject to review by an administrative law judge.  42 C.F.R. § 1001.1801(a), (f).  Therefore, Petitioner’s hearing request does not raise any issue that is within my power to adjudicate.  Accordingly, I dismiss Petitioner’s hearing request as required by 42 C.F.R. § 1005.2(e)(4).

I.     Background and Procedural History

By letter dated June 30, 2020, the IG notified Petitioner that he was being excluded from Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Act.  IG Exhibit (Ex.) 1.  The IG explained that Petitioner was excluded based on his conviction in the United States District Court, District of Maine (federal district

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court), of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including performance of management or administrative services related to the delivery of items or services, under any such program.  Id.

Petitioner timely requested a hearing before an administrative law judge.  On August 25, 2020, I held a telephone prehearing conference, the substance of which is summarized in an Order and Schedule for Filing Briefs and Documentary Evidence (Order).  See 42 C.F.R. § 1005.8.  Among other things, I directed the parties to file short-form briefs.  Order ¶ 7.b.  In accordance with the Order, the IG filed a brief (IG Br.) and five exhibits (IG Exs. 1-5).  Additionally, the IG filed a reply brief (IG Reply).  Petitioner did not object to any of the IG’s proposed exhibits; therefore, I admit IG Exs. 1-5 into the record.  42 C.F.R. § 1005.8(c); Order ¶ 8; Civil Remedies Division Procedures § 14(e). 

Petitioner filed a brief (P. Br.) and additional submissions, which he did not mark as exhibits.  See Docket Entries #14-#16 in DAB E-File.  While I have considered Petitioner’s submissions, they are not material to my decision.  Docket Entry #15 in DAB E‑File is a request to waive Petitioner’s exclusion.  Docket Entry #16 in DAB E‑File consists of a number of documents, including letters of recommendation from some of Petitioner’s professional colleagues.  Petitioner’s waiver request pertains to an issue that is not properly before me, as I explain below.  The letters of recommendation and other documents in Docket Entry #16 in DAB E-File appear to be intended to show that Petitioner is trustworthy and unlikely to offend again.  However, Petitioner has conceded that the IG has a basis to exclude him, and I lack authority to reduce Petitioner’s exclusion below the statutory minimum period of five years.  Act, § 1128(c)(3); 42 C.F.R. § 1001.102(a).

The parties agree that this case does not require an in-person hearing.  IG Br. at 8; P. Br. at 2.1  I therefore decide this case based on the written record.

II.     Issues

Ordinarily, the issues to be decided in an IG exclusion case are whether the IG had a basis for excluding an individual and whether the length of the exclusion is unreasonable.   42 C.F.R. § 1001.2007(a)(1).  However, in the present case, Petitioner has conceded that the IG has a basis to exclude him.  See P. Br. at 2.  Therefore, the only issue is whether Petitioner’s request for relief is one that I may consider.

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III.     Findings of Fact, Conclusions of Law, and Analysis

A.  The IG was required to exclude Petitioner from participation in Medicare and other federal health care programs because Petitioner was convicted of an offense described in section 1128(a)(1) of the Act.2

Section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)) provides:

(a) Mandatory exclusion.

The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1) Conviction of program-related crimes

Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under [Medicare] or under any State health care program.

The IG presented evidence that Petitioner pleaded guilty to one count of making false statements relating to health care matters in violation of 18 U.S.C. § 1035.  IG Ex. 5 at 1.  The federal district court adjudicated Petitioner guilty and sentenced him to one year’s probation and to pay MaineCare3 $2400.00 in restitution, among other things.  Id. at 1, 2, 5.  The IG offered evidence that the conduct for which Petitioner was convicted consisted of falsifying medical records to support claims for reimbursement from MaineCare.  IG Ex. 3.

Petitioner was convicted of a criminal offense related to the delivery of an item or service under a state health care program, within the meaning of section 1128(a)(1).  An individual is “convicted” when, among other things, a court makes a finding of guilt against the individual or accepts the individual’s guilty plea.  Act, § 1128(i) (42 U.S.C. § 1320a-7(i)).  MaineCare is a state health care program.  42 C.F.R. § 1000.10 (definition of State health care program); see also IG Ex. 3 at 1.  Court-ordered restitution to a state Medicaid program establishes a rebuttable presumption that the underlying offense was related to the delivery of an item or service under the program.  See, e.g., Johnnelle

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Johnson Bing, DAB CR1938 at 6 (2009) (citing Alexander Nepomuceno Jamias, DAB CR1480 (2006)), aff’d, Johnnelle Johnson Bing, DAB No. 2251 (2009).  The IG is required to exclude an individual convicted of a program-related crime for a minimum period of five years.  Act, § 1128(c)(3); 42 C.F.R. § 1001.102(a).  Petitioner concedes that he was convicted of an offense for which exclusion is required.  P. Br. at 1-2.

Petitioner’s sole argument is that he qualifies for a waiver of his exclusion pursuant to 42 C.F.R. § 1001.1801.  Id. at 3; see also Docket Entry #15 in DAB E-File.  However, as I discuss in the following section of this decision, the applicable regulations do not permit me to waive an exclusion imposed by the IG.

B.  I dismiss Petitioner’s hearing request pursuant to 42 C.F.R. § 1005.2(e)(4), because Petitioner has not raised any issue that I have authority to address.

Petitioner argues that he is eligible for a waiver of the exclusion under 42 C.F.R. § 1001.1801 and should be allowed to participate in all capacities in Medicare, Medicaid and other federal health programs because he is the sole source of essential specialized services in the Portland, Maine community.  See Docket Entry #15 in DAB E-File.  As the IG correctly points out, only the administrator of a federal health care program is authorized to request a waiver.  See IG Reply at 2 (citing 42 C.F.R. § 1001.1801).  Excluded individuals or entities may not request a waiver directly.  Id.

Moreover, even if the request for waiver of Petitioner’s exclusion had come to me from the administrator of a federal health care program, I could not consider the request.  The applicable regulation delegates authority to the IG to grant or deny a waiver request.  42 C.F.R. § 1001.1801(a).  The regulation goes on to prohibit further administrative or judicial review of the IG’s action on a waiver request:  “The decision to grant, deny or rescind a request for a waiver is not subject to administrative or judicial review.”  42 C.F.R. § 1001.1801(f).  Accordingly, to the extent Petitioner is requesting that I grant him a waiver of his exclusion, I am without authority to grant the relief he seeks.

The regulation codified at 42 C.F.R. § 1005.2(e)(4) provides that an administrative law judge “will dismiss” a party’s hearing request if “[t]he petitioner’s . . . hearing request fails to raise any issue which may properly be addressed in a hearing.”  Therefore,

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because I have determined that the only issue which Petitioner raises is foreclosed from my review, I dismiss Petitioner’s hearing request.