Suprenia Washington, DAB CR5103 (2018)

DECISION

Petitioner, Suprenia Washington, was a registered nurse employed by Abide Home Care Services, Inc. (Abide), a home health agency in Louisiana.  Petitioner pled guilty to one count of health care fraud in violation of 18 U.S.C. § 1347.  Now, pursuant to section 1128(a)(1) of the Social Security Act (Act),1 the Inspector General (I.G.) has excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of five years.

For the reasons explained below, I find that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare.  The I.G. was therefore required to exclude her from program participation.  The duration of the exclusion is the minimum period required by section 1128(c)(3)(B) of the Act; accordingly, it is reasonable as a matter of law.

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I.  Background

In a letter dated October 31, 2017, the I.G. advised Petitioner that she was excluded from participation in Medicare, Medicaid, and all federal health care programs because she had been convicted, in the United States District Court, Eastern District of Louisiana (district court), of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  I.G. Exhibit (Ex.) 1.  The letter explained that the exclusion was imposed pursuant to section 1128(a)(1) of the Act.  Id.  Petitioner timely requested review.  I convened a telephone prehearing conference and issued an Order and Schedule for Filing Briefs and Documentary Evidence (Briefing Order).

Pursuant to the Briefing Order, the I.G. submitted a brief and five proposed exhibits (I.G. Br.; I.G. Exs. 1-5).  Petitioner filed a brief and seven proposed exhibits (P. Br.; P. Exs. 1-7).2 The I.G. filed a reply brief (I.G. Reply).  Petitioner did not object to the I.G.’s proposed exhibits.  In the absence of objection, I admit into evidence I.G. Exs. 1-5.  The I.G. objected to P. Exs. 2, 3, 5, and 6 as irrelevant.  While I largely agree with the I.G. that P. Exs. 2, 3, 5, and 6 are irrelevant to the issues before me, I view P. Ex. 2 as argument or, alternatively, as Petitioner’s proposed testimony.  In addition, although only P. Ex. 3 was submitted in the form of an affidavit, I construe P. Exs. 5 and 6 (in addition to P. Ex. 3) as proffers of testimony.  I therefore overrule the I.G.’s objections and admit into evidence P. Exs. 1-7.  However, I have considered the I.G.’s objections in deciding what weight to give these exhibits.  For the reasons explained below, I accord P. Exs. 2, 3, 5, and 6 no weight.

I directed the parties to indicate in their briefs whether an in-person hearing would be necessary, and if so, to submit the testimony of any proposed witness as “written direct testimony in the form of an affidavit or declaration.”  Briefing Order ¶ 7.c.ii.  I also explained that I would hold a hearing only if a party offered witness testimony that is relevant and non-cumulative and the opposing party requested cross-examination.  Id.  The I.G. indicated that an in-person hearing is not necessary and submitted no testimony from any proposed witness.  I.G. Br. at 4-5.  Petitioner requested a hearing.  P. Br. at 2-3.  Petitioner submitted the testimony of one proposed witness in the form of an affidavit.  See P. Ex. 3.  However, the I.G. did not request to cross-examine the witness.  Further, to the extent P. Exs. 2, 5, and 6 may be viewed as proffers of testimony that Petitioner, her employers, and her personal references would give were they to appear at a hearing (regarding the facts underlying Petitioner’s conviction and Petitioner’s character and reputation), I would not find that a hearing is necessary to receive this testimony.  I reach this conclusion because the facts which Petitioner seeks to establish by the proffered testimony are not material to any issue before me.  I therefore decline to convene a hearing and I decide this case based on the written record.

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II.  Discussion

A. Petitioner must be excluded pursuant to section 1128(a)(1) of the Act because she was convicted of a criminal offense related to the delivery of an item or service under the Medicare program.3

The Act requires the Secretary of Health and Human Services (Secretary) to exclude from program participation any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).  The Secretary has delegated this authority to the I.G.  42 C.F.R. § 1001.101(a).

1. Petitioner was convicted of a criminal offense.

Petitioner concedes that she was convicted of a criminal offense.  P. Br. at 1.  The I.G.’s evidence demonstrates that, on September 7, 2016, Petitioner pled guilty to one count of health care fraud in violation of 18 U.S.C. § 1347.  I.G. Ex. 3.  The district court accepted Petitioner’s plea and entered judgment on September 13, 2017.  I.G. Ex. 2.  Accordingly, Petitioner was convicted of a criminal offense as that term is defined in section 1128(i)(3) of the Act.

2. The criminal offense of which Petitioner was convicted was related to the delivery of an item or service under Medicare.

The I.G.’s evidence proves that Petitioner’s conviction is related to the delivery of items or services under the Medicare program.  As part of her plea agreement, Petitioner signed a document styled “Factual Basis.”  I.G. Ex. 5.  According to this document, Petitioner falsely certified, among other things, that a Medicare beneficiary who was receiving home health services from Abide required skilled nursing care and was homebound.  See, e.g., id. at 3.  To qualify for Medicare reimbursement for home health services, a beneficiary must require skilled services and must be homebound.  Id. at 2.  The Factual Basis further states that Petitioner “intentionally turned a blind eye to the ever-changing falsified diagnoses she included on . . . assessments and falsely documented the need for home health services based upon these fraudulent diagnoses.”  Id. at 5.  Finally, Petitioner signed the following attestation:  “[Petitioner] admits and agrees that this was her part in the overall health care fraud scheme, in that she knowingly and intentionally aided and abetted Abide and others in creating materially false documents Medicare required and relied upon in reimbursing Abide for health care claims.”  Id. at 6.

There is a basis for exclusion if an individual’s acts (or omissions) cause the individual to be convicted of an offense and the offense is related to the delivery of an item or service

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under the Medicare or Medicaid program.  Dewayne Franzen, DAB No. 1165 (1990).  As the Factual Basis for her plea agreement demonstrates, Petitioner’s conviction for health care fraud was directly related to the delivery of items or services under Medicare because her criminal conduct consisted of creating fraudulent documents to support Medicare reimbursement to which her employer was not entitled.  Moreover, Petitioner was well aware that her conviction would result in exclusion from federal health care programs.  See I.G. Ex. 3 at 5 (Petitioner “understands and acknowledges that as a result of this guilty plea, [Petitioner] will be excluded from Medicare. . .”).

Now, Petitioner challenges the I.G.’s determination to exclude her, essentially arguing that she was not in fact guilty of the offense for which she was convicted.  As I explain in the following section, this argument is foreclosed under the applicable regulations.

B. Petitioner’s argument that she was convicted based on actions that were beyond her control represents an impermissible collateral attack on her conviction which cannot be a basis to set aside her exclusion.

The regulations provide that, when appealing an exclusion, an excluded party may not collaterally attack the conviction or civil judgment underlying the exclusion:

When the exclusion is based on the existence of a criminal conviction or a civil judgment imposing liability by Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction, civil judgment or determination is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d).  In the present case, Petitioner argues that she was convicted based on “actions outside of [her] control.”  P. Br. at 2; see also P. Ex. 7.  This argument amounts to a contention that she did not commit the acts for which she was convicted.  Petitioner expands on this contention in P. Ex. 2, in which she purports to refute the Factual Basis for her conviction.4

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Notwithstanding Petitioner’s arguments to the contrary in P. Exs. 2 and 7, she signed the plea agreement and Factual Basis, stipulating that she “knowingly and intentionally aided and abetted Abide and others in creating materially false documents” that were submitted to Medicare.  Based on this stipulation, Petitioner was convicted of health care fraud.  Petitioner’s conviction for health care fraud is a “prior determination where the facts were adjudicated and a final decision was made” within the meaning of 42 C.F.R. § 1001.2007(d).  Therefore, Petitioner may not collaterally attack her conviction in this forum.

Petitioner has requested to present testimonial evidence at a hearing.  P. Br. at 2-3.  However, the testimony of Petitioner’s witness Catherine Johnson (P. Ex. 3) is expressly intended to show that Petitioner did not engage in the conduct for which she was convicted.  Similarly, P. Ex. 2 represents Petitioner’s own recitation of alleged inaccuracies in the Factual Basis for her plea agreement.  Therefore, Ms. Johnson’s affidavit and Petitioner’s representations in P. Ex. 2 relate entirely to an issue that the regulations declare to be irrelevant as a matter of law.  Accordingly, I will not convene a hearing to take the proffered testimony.

Moreover, as I explain in the following section of this decision, to the extent Petitioner relies on testimonials from employers and personal references (P. Exs. 5, 6) to establish that she should not be excluded because she is a good nurse and a good person, these opinions are not a basis to convene a hearing or to set aside Petitioner’s exclusion.

C. As a matter of law, Petitioner must be excluded for a minimum period of five years.

The Act requires that Petitioner’s period of exclusion “shall not be less than five years. . . .”  Act § 1128(c)(3)(B); see also 42 C.F.R. § 1001.102.  Thus, I am required to uphold the length of Petitioner’s exclusion.  Once I have concluded that Petitioner is subject to exclusion, I may not reduce Petitioner’s exclusion to zero, nor may I direct the I.G. to reinstate Petitioner to program participation.  See 42 C.F.R. § 1005.4(c)(6); see also 42 C.F.R. § 1001.3002(f).

Petitioner has offered testimonials from employers and personal references (P. Exs. 5, 6) to establish that she should not be excluded because she has “an unblemished reputation and gained respect from supervisors, subordinates, and peers.”  P. Ex. 7.  Petitioner further states that, since her indictment, she has “lost the ability to practice nursing, a profession [she] cherish[es] and love[s] dearly.”  Id.  I have no reason to doubt the truthfulness of these statements.  However, the arguments based on these exhibits are essentially equitable in nature.  Equitable considerations are not a basis to overturn Petitioner’s exclusion.  I may not “review the I.G.’s decision to impose an exclusion . . . on the ground that the excluded person is a good person or well-thought of in the profession or suffering from the loss of his/her vocation.”  Donna Rogers, DAB No. 2381

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at 6 (2011); see also Stefan Murza, D.C., DAB No. 2848 at 4 (2018).  To the extent Petitioner may be arguing that there are mitigating factors that weigh against her exclusion, I may not consider mitigating factors in this case because the I.G. has imposed the minimum period of exclusion required by law.  42 C.F.R. §§ 1001.2007(a)(2); 1001.102(a), (c).

III.  Conclusion

For the reasons explained above, I conclude that the I.G. was required to exclude Petitioner pursuant to section 1128(a)(1) of the Act due to her conviction of a criminal offense related to the delivery of an item or service under the Medicare program.  An exclusion pursuant to section 1128(a)(1) must be for a minimum period of five years; accordingly the length of Petitioner’s exclusion is reasonable as a matter of law.