Yarnell Morgan Crawford, also known as Yarnell McKenzie, DAB CR6026 (2022)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Yarnell Morgan Crawford, also known as Yarnell McKenzie, from participation in Medicare, Medicaid, and all other federal health care programs based on her conviction of a criminal offense related to the delivery of a health care item or service under Medicare or a state health care program.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner because she was convicted of attempted Medicaid fraud.  An exclusion for the minimum period of five years is mandatory pursuant to section 1128(c)(3)(B) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(c)(3)(B)).

I.  Background

In a letter dated August 31, 2021, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act (42 U.S.C. § 1320a-7b(f)) for a minimum period of 5 years, effective 20 days from the date of the letter.  IG Exhibit (Ex.) 1 at 1.  The IG stated that Petitioner's

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exclusion was based on a "conviction as defined in section 1128(i) (42 U.S.C. [§] 1320a‑7(i)), in the Court of Common Pleas of Franklin County, State of 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."  IG Ex. 1 at 1.  The IG explained that she excluded Petitioner pursuant to section 1128(a)(1) of the Act, which mandates the exclusion of any individual who is 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).  The IG informed Petitioner that the exclusion was for "the minimum statutory period of 5 years."  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(c)(3)(B).

Petitioner, through counsel, filed a request for an administrative law judge (ALJ) hearing on October 29, 2021.  On November 3, 2021, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order).  Following a November 17, 2021 pre-hearing conference, I issued an order memorializing certain matters discussed during the pre-hearing conference.  Pursuant to these orders, the IG filed a brief (IG. Br.) and four exhibits (IG Exs. 1-4).  Petitioner filed a brief (P. Br.) and two exhibits (P. Exs. A and B).Petitioner did not mark her exhibits with a whole number as directed by section 7 of the Pre-Hearing Order.  The IG filed a reply brief.  I admit IG Exs. 1-4 and P. Exs. A-B into the evidentiary record.

Neither party submitted the written direct testimony of any witnesses.In her brief, Petitioner stated that she "believes her case cannot be fairly decided without an in-person hearing."  P. Br. at 3.  Petitioner added that she "intends to testify on her own behalf regarding the nature and circumstances surrounding her indictment and Alford Plea, as well as her restitution payments."  P. Br. at 3.  However, Petitioner did not submit written direct testimony as required by section 5 of the standing pre-hearing order.  See, e.g., Lena Lasher, DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, "no purpose would be served by holding an in-person hearing"), aff'd, Lasher v. Dep't of Health & Human Servs., 369 F. Supp. 3d 243 (2019).  More significantly, the proposed in-person testimony is neither relevant nor material to the question of whether Petitioner was convicted of an offense that is related to the delivery of a health care item or service under a state healthcare program.  Even accepting as true, for the sake of discussion, Petitioner's claim that the indictment was based on "coerced statement made against self-interest," Petitioner, with the benefit of counsel, waived her right to a jury trial and entered a guilty plea to the offense of attempted Medicaid fraud, a lesser included offense of Count One of the indictment.  P. Br. at 1-2; see IG Exs. 2-4; P. Ex. B. See Pre-Hearing Order §§ 5, 7 and 8.  Consequently, it is unnecessary to convene a hearing for the purpose

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of cross-examination of any witnesses.  See Pre-Hearing Order §§ 8-9 and 11.  The record is closed, and the case is ready for a decision on the merits.

II.  Issue

Whether the IG has a basis for exclusion pursuant 42 U.S.C. § 1320a‑7(a)(1).  If so, a minimum period of exclusion of five years is mandated.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. § 1001.2007(a)(1)-(2).

III.  Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2.

IV.  Findings of Fact, Conclusions of Law, and AnalysisMy findings of fact and conclusions of law are set forth in italics and bold font.

1. Petitioner was convicted of an offense related to the delivery of a health care item or service under a state health care program, which is an offense, pursuant to section 1128(a)(1) of the Act, that subjects her to a mandatory exclusion from all federal health care programs for a minimum period of five years.

Section 1128(a)(1) requires a mandatory exclusion from all federal health care programs under certain conditions.While there are slight differences in the wording of Section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical and I refer to them interchangeably.  I further note that the Secretary of the Department of Health and Human Services has delegated to the IG the authority "to suspend or exclude certain health care practitioners and providers of health care services from participation in these programs."  48 Fed. Reg. 21,662 (May 13, 1983); see also 42 C.F.R. § 1005.1.  Section 1128(a)(1) states:

(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

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service under title XVIII or under any State health care program.

See 42 U.S.C. § 1320a-7(a)(1).  Likewise, and pursuant to 42 C.F.R. § 1001.101(a), the IG "will exclude" an individual who "[h]as been convicted of a criminal offense related to the delivery of an item or service under 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."

The IG argues that she properly excluded Petitioner from all federal health care programs based on Petitioner's conviction of an offense that was related to the delivery of a health care item or service under Medicare or a state health care program.  IG Br. at 3-5; see IG Exs. 2-4.  Although Petitioner argues that "[t]his case falls into none of the mandatory exclusion scenarios," she does not provide any legal support for this statement.It is not surprising that Petitioner could not provide any support for this statement.  Petitioner similarly argued in her request for hearing that "a misdemeanor [] must be reviewed by § 1128(b) which provides for permissive exclusion in some limited circumstances."  Request for Hearing at 2.  During the pre-hearing conference, I explained that the section 1128(a)(1) mandatory exclusion authority applies to a misdemeanor conviction that is related to the delivery of an item or service under Medicare or a state healthcare program.  See Order, dated November 17, 2021, at 1.  P. Br. at 3.  I find that Petitioner was convicted of a criminal offense, for purposes of the Act, that mandates exclusion from all federal health care programs.

On or about August 20, 2019, a special grand jury returned a true bill of indictment charging, in Count One, that Petitioner, "[f]rom on or about May 1, 2018 to on or about May 31, 2019 . . . as a continuing course of criminal conduct . . . did knowingly make or cause to be made a false or misleading statement or representation for use in obtaining reimbursement from the [M]edicaid program . . . in violation of Ohio Revised Code § 2913.40(B), 2913.40(E), Medicaid Fraud, a Felony of the Fifth Degree."  IG Ex. 2 at 1.  Count Two of the same indictment charged that Petitioner committed felony theft "with purpose to deprive the owner, Ohio Department of Medicaid, of property or services . . . in violation of Ohio Revised Code § 2913.02(A)(3), 2913.02(B)(2) . . . ."  IG Ex. 2 at 1.

On July 27, 2020, Petitioner, with the benefit of counsel, entered an Alford plea to the stipulated lesser included offense of "Attempted Medicaid Fraud, in violation of [Ohio

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Revised Code §] 2923.02 as it relates to [Ohio Revised Code §] 2913.40(B) . . . a Misdemeanor of the First Degree."A defendant entering an Alford plea does not contest the criminal charge and acknowledges that the evidence is sufficient for conviction.  North Carolina v. Alford, 400 U.S. 25 (1970).  A judge accepted Petitioner's Alford plea, and Petitioner was convicted of a criminal offense for purposes of exclusion.  See 42 U.S.C. § 1320a-7(i)(1), (2), and (3); IG Ex. 4 at 1; P. Ex. B.  The court imposed its sentence and judgment that same day, at which time it ordered, inter alia, that Petitioner "shall pay restitution in the . . . amount of . . . $1,692.20 to [the] Ohio Department of Medicaid . . . ."  IG Ex. 4 at 1; P. Ex. B.

Petitioner does not dispute that her conviction is related to services she provided under the Ohio Medicaid program.  Request for Hearing at 1 ("The underlying criminal matter regards a harmless billing discrepancy where services where [sic] legitimately provided to patient [sic], but the services where [sic] not properly documented."); Request for Hearing at 1-2 ("[Petitioner] paid . . . restitution . . . to the Ohio Department of Medicaid even though she had provided the medical services in question."); see P. Br. at 2 (addressing the payment of $1,692.20 in restitution to the Ohio Department of Medicaid).

Petitioner was convicted of a crime that involved the delivery of a health care item or service, and a victim of her crime was the Ohio Medicaid program.  IG Ex. 4 at 1; P. Ex. B (Order that restitution is payable to the Ohio Department of Medicaid); see Ohio Revised Code § 2929.28(A)(1) (addressing that restitution is paid to the victim of a crime).  Petitioner's misdemeanor conviction for attempted Medicaid fraud therefore subjects her to exclusion.  Lorna Fay Gardner, DAB No. 1733 (2000) ("Section 1128(a)(1), which pertains to criminal offenses related to the delivery of an item or service under such programs, does not draw a distinction by degree of offense.").

The facts of this case are analogous to another case decided by the Departmental Appeals Board (DAB), Tamara Brown, DAB No. 2195 (2008).  In Brown, a special grand jury, also in Franklin County, Ohio, had "indicted and charged [the petitioner] . . . with one count of fourth-degree felony Medicaid Fraud, in violation of OHIO REV. CODE § 2913.40(B)."  Id. at 2-3.  The petitioner "pleaded guilty to the stipulated lesser offense of attempted Medicaid fraud, classified as a first-degree misdemeanor in violation of section 2923.02 of the Ohio code as it relates to section 2913.40(B)."  Id. at 3.  The petitioner in Brown similarly argued that the IG should have imposed a permissive exclusion under section 1128(b), rather than a mandatory exclusion under section 1128(a).  Id. at 6; see P. Br. at 1.  The DAB determined that "the provision upon which [the petitioner] relies for her argument that the I.G. should have excluded her for less than five years based on her misdemeanor conviction does not apply where, as here, the misdemeanor involves ‘program-related crimes' such as those ‘related to the delivery of an item or service' in the Medicare or Medicaid programs."  Id. at 7.  The DAB further

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explained that "[s]ection 1128(b)(1)(A), and its authority to exclude for less than five years, applies only when an individual has been convicted of a misdemeanor relating to health care fraud in connection with a program other than Medicare or State health care programs."  Id. (emphasis omitted).  The DAB determined that "when an individual is convicted of a ‘program related' misdemeanor involving the delivery of an item or service under Medicaid or another State health care program, the mandatory exclusion applies . . . ."  Id.

Congress, through enactment of the Act, determined that an individual who has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program must be excluded from federal health care programs for no fewer than five years, and it afforded neither the IG nor an ALJ the discretion to impose an exclusion of a shorter duration.  42 U.S.C. § 1320a-7(c)(3)(B).  I cannot shorten the length of the exclusion to a period of less than five years because I do not have authority to "[f]ind invalid or refuse to follow Federal statutes or regulations."  42 C.F.R. § 1005.4(c)(1).  Because Petitioner was convicted of a criminal offense related to her delivery of services under a state health care program, I uphold the IG's imposition of an exclusion for the mandated minimum period of five years.

2. The effective date of Petitioner's exclusion is September 20, 2021.

The effective date of the exclusion, September 20, 2021, is 20 days after the date of the IG's August 31, 2021 letter and is established by regulation (42 C.F.R. § 1001.2002(b)); I am bound by that regulation.  42 C.F.R. § 1005.4(c)(1).

V.  Conclusion

I affirm the IG's determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a five-year minimum period pursuant to 42 U.S.C. § 1320a‑7(a)(1).