Tina J. Gabel, DAB CR5590 (2020)

DECISION

Petitioner, Tina J. Gabel, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)), effective September 19, 2019.  Petitioner's exclusion, for a minimum period of five years,1 is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).

I.  Background

The Inspector General (IG) of the U.S. Department of Health and Human Services notified Petitioner by letter dated August 30, 2019, that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  The IG cited section 1128(a)(1) of the Act as the basis for Petitioner's exclusion.  The IG stated that the exclusion was based on Petitioner's conviction in the Dutchess County Court of the State of New York (state court), of a criminal offense related to the delivery

Page 2

of an item or service under the Medicare or a state health care program.  IG Exhibit (Ex.) 1.

Petitioner timely requested a hearing on October 18, 2019 (RFH).  On October 30, 2019, the case was assigned to me to hear and decide.  I convened a telephone prehearing conference on November 25, 2019, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on that date (Prehearing Order).  The parties waived an oral hearing during the prehearing conference and agreed to submit the case for a merits decision on the briefs and documentary evidence.  42 C.F.R. § 1005.6(b)(5).

On January 9, 2020, the IG filed a brief and IG Exs. 1 through 5.  On February 24, 2020, Petitioner filed a brief (P. Br.), and Petitioner's exhibits (P. Exs.) 1 through 5.  On March 9, 2020, the IG waived the right to file a reply brief.

Petitioner did not object to my consideration of IG Exs. 1 through 5 and they are admitted as evidence.  Petitioner's Exs. 1, 2, 4, and 5 must be excluded as evidence because they are not relevant to the only issue I am permitted to consider under 42 C.F.R. § 1001.2007(a)(1), i.e., whether there is a basis for exclusion.  Pursuant to 42 C.F.R. § 1005.17(c), I am required to exclude irrelevant evidence even in the absence of an objection by opposing counsel.  P. Ex. 1 is a slide show prepared and presented by a representative of the Office of the Inspector General regarding the IG Exclusions Branch and how it processes exclusions as well as information regarding exclusions.  The information contained in the slide show does not help me resolve the issue of whether there is a basis for exclusion in this case.  P. Ex. 2 is a copy of section 1128 of the Social Security Act (Act).  There is no need to admit as evidence provisions of the Act that control in this case as the Act is published and readily available through multiple sources.  P. Ex. 3 is a copy of a letter from Petitioner to the prosecutor in her criminal case regarding the presentence report from Petitioner's criminal prosecution, and it is minimally relevant and admitted.  P. Exs. 4 and 5 are policy statements from the New York Department of Health regarding the New York Consumer Directed Personal Assistance Service and a change in the program that allowed parents of adult children to be hired and work as a personal assistant.  Neither document helps me decide the sole issue in this case of whether there is a basis for Petitioner's exclusion.  Accordingly P. Ex. 3 is admitted as evidence and P. Exs. 1, 2, 4, and 5 are not admitted as evidence.

II.  Discussion

A.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner's right to a hearing by an administrative law judge (ALJ), and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).

Page 3

Pursuant to section 1128(a) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted under federal or state law of, among other things:  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 promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a).2

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of not less than five years.  42 C.F.R. § 1001.102(a).  The Secretary has published regulations that establish aggravating factors that the IG may consider to extend the period of exclusion beyond the minimum five-year period, as well as mitigating factors that may be considered only if the minimum five‑year period is extended.  42 C.F.R. § 1001.102(b), (c).

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), (d).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 4.

B.  Issues

The Secretary has by regulation limited my scope of review to two issues:

Whether the IG has a basis for excluding an individual or entity from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

When, as in this case, the IG imposes the minimum authorized five-year exclusion under section 1128(a) of the Act, there is no issue as to whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(2).

Page 4

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

My conclusions of law are set forth in bold text followed by my findings of fact and analysis.

1.  Petitioner timely filed her request for hearing and I have jurisdiction.

2.  The parties have waived the right to an oral hearing and disposition on the pleadings and documentary evidence is appropriate.

There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.  During the November 25, 2019 prehearing conference, the parties waived their right to an oral hearing and agreed to resolve this matter on the merits based upon their pleadings and documentary evidence.  42 C.F.R. § 1005.6(b)(5).

3.  Section 1128(a)(1) of the Act requires Petitioner's exclusion from participation in Medicare, Medicaid, and all other federal health care programs.

a.  Facts

The material facts are undisputed.

Petitioner was charged by a felony complaint filed in the state court of committing the following offenses between about October 29, 2011 and March 23, 2015:

Grand larceny in the second degree, in violation of New York Penal Law § 155.40(1) (two counts);

Offering a false instrument for filing in the first degree, in violation of New York Penal Law § 175.35(1) [eight counts]; and,

Falsifying business records in the first degree, in violation of New York Penal Law § 175.10 [seven counts];

IG Ex. 3.

On February 17, 2017, Petitioner entered into a plea agreement in which she agreed to plead guilty to one count of grand larceny in the third degree, in violation of New York Penal Law § 155.35(1), and to pay restitution of $113,584.48 in advance of sentencing to the New York State Office of the Attorney General Medicaid Fraud Control Unit

Page 5

Restitution Fund.  In exchange for her guilty plea, the prosecutor agreed to recommend five years of probation and to dismiss all other charges.  IG Ex. 2 at 2-3.
Petitioner agreed to the following statement of the factual basis for her plea:

[F]rom on or about or between October 29, 2011 and June 1, 2015 . . . , [I] submitted and caused to be submitted to the New York State Medicaid Program, claims for Consumer Directed Personal Assistance Program services provided by Sean Gabel to Medicaid recipients L.G. and T.R., when I knew that such services were not provided.  As I intended, the State of New York, in reliance upon these false representations, paid AccentCare of NY, Inc. (AccentCare), in access of $3,000.00 to which neither AccentCare, Sean Gabel nor I were entitled.

IG Ex. 2 at 4.

On February 17, 2017, Petitioner was convicted pursuant to her guilty plea.  On April 21, 2017, Petitioner was sentenced to five years probation and ordered to pay an additional $375.00 in fees.  IG Exs. 4, 5 at 5.

b.  Analysis

The IG cites section 1128(a)(1) of the Act as the basis for Petitioner's mandatory exclusion.  The statute provides in relevant part:

(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 title XVIII [Medicare] or under any State health care program.

Act § 1128(a)(1).  Congress has, by the plain language of section 1128(a)(1) of the Act, required the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity:  (1) convicted of a criminal offense whether a misdemeanor or felony; (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service was under Medicare or a state health care program.  An individual or entity is considered to have been "convicted" of an offense if, among other things, "a plea of guilty or nolo contendre by the individual or

Page 6

entity has been accepted by a Federal, State, or local court."  Act § 1128(i)(3) (42 U.S.C. § 1320a-7(i)(3)).

Petitioner does not dispute that she pleaded guilty to and was convicted in the state court of one count of grand larceny pursuant to her agreement to plead.  P. Br. at 1; IG Ex. 2 at 2-3.  Petitioner also does not dispute that her conviction related to the delivery of a service under a state health care program.  She admitted as part of her plea agreement that she submitted false claims for services to the New York Medicaid program.  IG Ex. 2 at 4.  Respondent also paid restitution of $113,584.48 to the New York State Office of the Attorney General Medicaid Fraud Control Unit Restitution Fund.  IG Ex. 2 at 2‑3.  I conclude that Petitioner was convicted of a criminal offense related to the delivery of an item or service under a state health care program.

Accordingly, I conclude that all elements that trigger a mandatory exclusion pursuant to section 1128(a)(1) of the Act are satisfied and the IG has a basis to exclude Petitioner.

4.  Section 1128(c)(3)(B) of the Act requires a minimum exclusion period of five years for any exclusion action pursuant to section 1128(a) of the Act.

5.  Petitioner's exclusion for five years is not unreasonable as a matter of law.

Congress established five years as the minimum exclusion period for exclusions pursuant to section 1128(a) of the Act.  Act § 1128(c)(3)(B).  Pursuant to 42 C.F.R. § 1001.2007(a)(2), when the IG imposes an exclusion pursuant to section 1128(a) of the Act for the statutory minimum period of five years, there is no issue of whether or not the period is unreasonable.  Petitioner agrees that she is subject to a minimum five-year exclusion under the Act.  P. Br. at 1.  Accordingly, I conclude that Petitioner's exclusion for a period of five years is not unreasonable as a matter of law.

6.  I have no authority to change the effective date of the running of the period of exclusion.

Petitioner's complaint is that the IG acted unreasonably by waiting two and a half years after her conviction before excluding her.  Petitioner argues that the state imposed her Medicaid exclusion on July 24, 2017, and that exclusion was in effect for two years and three months before the IG took action to exclude her.  Based on the IG exclusion she will be excluded for seven years and three months, and she argues that is unreasonable and inappropriate.  Petitioner requests that both the state and federal exclusion run concurrently.  Petitioner asserts that the IG's action in this case is punitive rather than remedial.  RFH; P. Br. at 1-2, 4.

Page 7

ALJs, who serve as neutral adjudicators in Executive Branch agencies, have only the authority delegated by Congress through statutes and agency heads through regulations.  My jurisdiction or delegated authority in this case is limited by the Secretary to the single issue of whether or not the IG has a basis to exclude Petitioner.  The issue of whether or not the period of exclusion is reasonable is not even before me in this case.  42 C.F.R. § 1001.2007(a)(1)-(2).

I conclude that I have no authority to change the effective date of the running of a period of exclusion in this case.  Section 1128(c)(1) of the Act provides that an exclusion under section 1128 of the Act shall be effective at "at such time and upon such reasonable notice to the public and to the individual or entity excluded as may be specified in regulations . . . ."  The Secretary has required by regulation that the IG send written notice of an exclusion to the affected individual or entity.  42 C.F.R. § 1001.2002(a).  The Secretary's regulations further provide that the exclusion will be effective 20 days from the date of the notice.  42 C.F.R. § 1001.2002(b).  Both the context and plain language of the regulation is consistent with my conclusion that the notice referred to in section 1001.2002(b) is the written notice required by section 1001.2002(a).  The Secretary's regulations do not give me discretion to either review or change the effective date of Petitioner's exclusion, and I may not refuse to follow the Secretary's regulations.  42 C.F.R. § 1005.4(c)(1).  The Departmental Appeals Board (the Board) has addressed this issue and concluded that ALJs and the Board have no authority to change the effective date of the running of the period of exclusion as required by the Secretary.  Thomas Edward Musial, DAB No. 1991 at 3 (2005) (and cases cited therein).

An exclusion is effective 20 days from the date of the IG's written notice of exclusion to the affected individual or entity.  42 C.F.R. § 1001.2002(b).  The IG's notice of exclusion to Petitioner is dated August 30, 2019.  Accordingly, the effective date of Petitioner's exclusion is September 19, 2019.

III.  Conclusion

For all of the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for the minimum statutory period of five years, effective September 19, 2019.

1. Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires.  Reinstatement is not automatic upon completion of the minimum period of exclusion.
• back to note 1
2. Citations are to the 2018 revision of the Code of Federal Regulations, unless otherwise stated.
• back to note 2