Haja Conteh, DAB CR5623 (2020)

DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Petitioner, Haja Conteh, from participation in Medicare, Medicaid, and all other federal health care programs for five years based on her conviction for a criminal offense related to the delivery of an item or service under the Medicare or a state health care program.  Petitioner sought review of the exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination.

I.  Procedural History

By letter dated October 31, 2019, the IG notified Petitioner she was being excluded, effective 20 days from the date of the letter, from participation in Medicare, Medicaid, and all federal health programs under section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)) for the minimum statutory period of five years.  IG Exhibit

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(Ex.) 1.1   The IG explained she took this action based on Petitioner’s conviction, as defined in section 1128(i) (42 U.S.C. § 1320a-7(i)), in the Court of Common Pleas, Franklin County, Ohio, of a criminal offense related to the delivery of an item or service under the Medicare or a state health care program, including the performance of management or administrative services relating to the delivery of items or services, under any such program.  Id. at 1.

Petitioner timely requested a hearing before an administrative law judge.  I held a pre-hearing telephone conference on January 16, 2020, the substance of which is summarized in my January 16, 2020 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  See 42 C.F.R. § 1005.6.  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order at 3-4.

The IG filed a brief (IG Br.) and five exhibits (IG Exs. 1-5), while Petitioner filed a short-form brief (P. Short-form Br.) with supplemental brief (P. Br.)2 and two exhibits (P. Exs. 1-2).  The IG subsequently filed a reply brief (IG Reply).

II.  Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  I therefore enter IG Exs. 1 through 5 and P. Exs. 1 and 2 into the record.  Similarly, neither party requested a hearing or offered witnesses.  IG Br. at 7-8; P. Br. at 2.  Accordingly, I will decide this case on the briefs submitted and the exhibits of record.  Civ. Remedies Div. P. § 19(d).

III.  Petitioner’s Request to Stay Is Denied.

Petitioner requested her exclusion be stayed during the pendency of this proceeding.  Request for Hearing (RFH) at 1.  She did not cite any authority that permits me to levy temporary injunctive relief on her behalf and with the issuance of this decision, her request is moot.  Nevertheless, I note the regulations setting forth hearing procedures for exclusion cases do not contemplate suspending an exclusion during the pendency of an appeal.  See 42 C.F.R. pt. 1005.  Instead, they explicitly preclude me from enjoining acts of the Secretary, which would include the exclusion action under review here.  42 C.F.R. § 1005.4(c)(4).  Petitioner’s request is denied.

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IV.  Issue

Whether the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for five years under 42 U.S.C. § 1320a-7(a)(1).  See 42 C.F.R. § 1001.2007(a)(1).

V.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an administrative hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, and the rights of both the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3.

The Secretary must exclude from participation in federal health care programs “[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII of this chapter or under any State health care program.”  42 U.S.C. § 1320a-7(a)(1); see also 42 C.F.R. § 1001.101(a).

An individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  42 U.S.C. § 1320a-7(i).  The statute does not distinguish between misdemeanor and felony convictions.  There may be no collateral attack of the conviction that provides the basis of the exclusion.  42 C.F.R. § 1001.2007(d).

Section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) provides that an exclusion imposed under section 1128(a) of the Act (42 U.S.C. § 1320a-7(a)) shall be for a minimum period of five years.  The exclusion is effective twenty days from the date of the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The period of exclusion may be extended based on the presence of specified aggravating factors.  42 C.F.R. § 1001.102(b).  Mitigating factors are considered as a basis for reducing the period of exclusion only if aggravating factors justify an exclusion of longer than five years.  42 C.F.R. § 1001.102(c).

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, while the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b).

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

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

A. Petitioner’s request for hearing was timely, and I have jurisdiction.

Petitioner timely requested a hearing.  I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

B. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act.

Exclusion from participation in Medicare, Medicaid, and all federal health care programs is mandated by section 1128(a)(1) of the Act where an individual has been convicted, under Federal or State law, of a criminal offense related to the delivery of an item or service under Medicare or any state health care program.  42 U.S.C. § 1320a-7(a)(1); 42 C.F.R. § 1001.101(a).  The IG has established these elements by a preponderance of the evidence.

1. Petitioner was convicted of a criminal offense within the meaning of the Act.

Petitioner, a nurse, provided nursing services to T.B., a Medicaid recipient.  IG Ex. 3 at 1.  After an investigation, the Ohio Medicaid Fraud Unit determined that Petitioner billed Medicaid for more services than she provided to T.B.  Id.  On March 20, 2018, Petitioner was indicted by a grand jury for one count of Medicaid Fraud.  IG Ex. 2.  On November 5, 2018, Petitioner entered an Alford guilty plea3 to the lesser included offense of Theft by Deception.  IG Ex. 4.  On November 5, 2018, the Court of Common Pleas, Franklin County, Ohio imposed judgment on Petitioner and found her guilty of one count of Theft by Deception.  IG Ex. 5.

Petitioner was convicted of a criminal offense for exclusion purposes under section 1128(a)(1) of the Act.  The Act provides an individual or entity is considered “convicted” when a judgment of conviction has been entered by a federal, state, or local court, or a plea of guilty or no contest has been accepted in a federal, state, or local court.  42 U.S.C. § 1320a-7(i)(1), (3).  Here, the grand jury indictment, the plea agreement, and the entry of

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judgment against her all make readily apparent that Petitioner was in fact convicted of such an offense.  IG Exs. 2, 4, 5.

Petitioner concedes she was convicted of a criminal offense, P. Short-form Br. at 1, but spends the bulk of her brief arguing her innocence.  She attacks the factual basis for her conviction by asserting the “underlying criminal matter regards a harmless billing discrepancy related to a single patient.”  P. Br. at 4.  She contends that, contrary to the charges brought against her, she only billed for services actually provided to her patient.  Id. at 4.  Petitioner explains that she had no other choice but to plead guilty.  Id.

The question of Petitioner’s guilt or innocence is not properly before me.  The Secretary’s regulations explicitly prohibit Petitioner from collaterally attacking her conviction before me.  42 C.F.R. § 1001.2007(d) (“When the exclusion is based on the existence of a criminal conviction . . . the basis of the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.”).

As I have discussed, Petitioner conceded she was convicted of a criminal offense, a fact the IG has amply demonstrated.  I must therefore conclude that Petitioner was convicted of a criminal offense as contemplated by 42 U.S.C. § 1320a-7(a)(1).

2. Petitioner’s criminal offense is related to the delivery of an item or service under Medicare or a state health care program within the meaning of section 1128(a)(1) of the Act.

The Act requires Petitioner be excluded from participation in federal programs if she was convicted of an offense relating to the delivery of an item or service under Medicare or a state health care program.  See 42 U.S.C. § 1320a-7(a)(1).  The term “related to” simply means that there must be a nexus or common sense connection.  See Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “related to” in another part of section 1320a-7 as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotation marks omitted); see also Quayum v. U.S. Dep’t of Health and Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998).

In this case, the record clearly demonstrates a nexus between the criminal offense for which Petitioner was convicted and the delivery of an item or service under a state health care program.  Petitioner was indicted on one count of Medicaid fraud for knowingly making or causing to be made a false or misleading statement to obtain reimbursement from the Ohio Medicaid program.  See IG Ex. 2 at 1.  Petitioner’s billing of claims as if she performed the services is improper and relates directly to the delivery of a service under a state health care program.  Submitting a false claim to Medicaid is clearly related to the delivery of an item or service under a state health care program.  See Travers v.

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Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (conviction for filing claims with the Medicaid program is “a program‑related offense” and “such financial misconduct is exactly what Congress sought to discourage” through imposing exclusions.); Kahn v. Inspector Gen. of the U.S. Dep’t of Health and Human Servs., 848 F. Supp. 432, 434, 436 (S.D.N.Y. 1994) (concluding that a podiatrist’s conviction for attempted grand larceny was program-related for purposes of an exclusion because it was related to the filing of false Medicaid claims); Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990) (“There is no question that Mr. Greene’s crime [of filing false claims] resulted in a Medicaid overpayment and was a program-related crime triggering the mandatory exclusion under Section 1320a‑7(a).”). 

Although Petitioner was convicted of a lesser included offense, the allegations of the indictment are the same facts upon which her conviction is based.  IG Ex. 2 at 1; IG Ex. 5 at 1.  The conduct to which Petitioner admitted, and which forms the factual basis of her criminal conviction, is clearly related to the delivery of an item or service as contemplated by section 1128(a)(1) of the Act.

Further, court-ordered restitution to a State Medicaid program is evidence of a nexus between the offense and the delivery of items or services under that Medicaid program.  Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994).  Here, the sentencing court ordered Petitioner to pay $1,200.00 in restitution to the Ohio Department of Medicaid.  IG Ex. 4. 

I therefore conclude that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program as contemplated by 42 U.S.C. § 1320a-7(a)(1).

C. The IG was required to exclude Petitioner under the Act’s mandatory exclusion authority.

Petitioner does not contest the relatedness of her offense of conviction to the delivery of an item or service under Medicare or a state health care program.  She instead argues that her exclusion under the mandatory exclusion authority found at section 1128(a)(1) of the Act was improper because she was convicted of a misdemeanor offense, which in her view could only trigger the IG’s permissive exclusion authority under section 1128(b)(1)(A) of the Act.  P. Br. at 4. 

This argument is without merit.  As the IG correctly observed, section 1128(a)(1) of the Act does not distinguish between misdemeanor and felony offenses.  IG Reply at 2.  It only requires the IG to exclude an individual convicted of a “criminal offense” related to the delivery of an item or service under Medicare or a state health care program.  42 U.S.C. § 1320a-7(a)(1).

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It is true that some criminal offenses could fall under both permissive and mandatory exclusion authorities.  But in that circumstance, the IG has no discretion to determine which exclusion authority to apply; instead, the IG must exclude an individual who is convicted of a crime subject to the mandatory exclusion authority.  See Gregory J. Salko, M.D., DAB No. 2437 at 4 (2012), quoting Timothy Wayne Hensley, DAB No. 2044 (2006) (“As the Board has observed, if an offense falls under the mandatory exclusion statute, ‘courts have repeatedly held that the I.G. is then required to impose a mandatory exclusion even if an individual’s conduct also falls within the scope of a permissive exclusion provision.’”).  The mere fact that Petitioner’s criminal offense resulted in a misdemeanor conviction does not preclude the possibility of mandatory exclusion, and as I have explained, Petitioner’s offense of conviction requires exclusion under section 1128(a)(1) of the Act. 

D. Petitioner must be excluded for a minimum of five years; the period of exclusion is therefore reasonable as a matter of law.

Because I have concluded that a basis exists to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(1), Petitioner must be excluded for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  The IG has no discretion to impose a lesser period of exclusion, and I may not reduce the period of exclusion below five years.

E. I have no authority to modify the effective date of Petitioner’s period of exclusion.

Petitioner argues her effective date of exclusion should be made retroactive to April 2017, when she was last enrolled as a Medicaid provider.  RFH at 1; P. Br. at 4-5.  Putting aside the fact that Petitioner argues her period of exclusion should begin over one year before the conviction which forms the basis of that exclusion, I have no authority to change the IG’s selection of an effective date for exclusion.  See Thomas Edward Musial, DAB No. 1991 (2005), citing Douglas Schram, R.PH., DAB No. 1372 at 11 (1992) (“[n]either the ALJ nor this Board may change the beginning date of Petitioner’s Exclusion.”); David D. DeFries, DAB No. 1317 at 6 (1992) (“The ALJ cannot . . . decide when [the exclusion] is to begin.”); Richard D. Phillips, DAB No. 1279 (1991) (“An ALJ does not have ‘discretion . . . to adjust the effective date of an exclusion, which is set by regulation.’”); Samuel W. Chang, M.D., DAB No. 1198 at 10 (1990) (“The ALJ has no power to change . . . [an exclusion’s] beginning date.”); see also 42 C.F.R. § 1001.2002(b) (“The exclusion will be effective 20 days from the date of the notice.”). 

Because I am not empowered to provide Petitioner the relief she seeks, her request to modify the effective date of her exclusion is denied.

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VII.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years pursuant to section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)), effective November 20, 2019.

1. Document No. 5b in the official case file maintained in the DAB E-File system; for clarity and simplicity, whenever possible I will cite to the exhibits attached to the parties’ respective briefs by the exhibit numbers therein, not the document numbers assigned by the E-file system.
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2. Petitioner did not file her supplemental brief as a separate document but attached it to her short-form brief.  Her brief is numbered but the first page appears as the fourth page of the combined document.  For the sake of simplicity I will refer to them as two separate documents.
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3. A defendant entering an Alford plea accepts the legal ramifications of entering a guilty plea without waiving her claim of innocence, obviating the typical requirement that she attest to the facts necessary to prove the elements of the charged offense.  Alford Plea, Black’s Law Dictionary (6th ed. 1990), available at https://www.academia.edu/7561173/BLACKS_LAW_DICTIONARY_Definitions_of_the_Terms_and_Phrases_of_American_and_English_Jurisprudence_Ancient_and_Modern_Contributing_Authors (last visited May 21, 2020).
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