Antoinette Michelle Maxwell, DAB CR6185 (2022)

DECISION

Respondent, the Inspector General for the United States Department of Health and Human Services (the IG), excluded Petitioner, Antoinette Michelle Maxwell, 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 March 31, 2022, 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 statutory minimum period of five years.  IG Exhibit (Ex.) 1.  The IG explained her exclusion action was based on Petitioner’s conviction in Oregon 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.

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Petitioner timely requested a hearing before an administrative law judge (ALJ) in the Civil Remedies Division and I was designated to hear and decide this case.  I held a pre-hearing conference by telephone with the parties on June 29, 2022, the substance of which is set forth in my June 30, 2022 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 4-5.

Pursuant that order, the IG filed a brief (IG Br.) and six proposed exhibits (IG Exs. 1-6).  Petitioner filed a response brief (P. Br.) and eight proposed exhibits (P. Exs. 1-8).  The IG waived her opportunity to reply.

II.   Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  I therefore enter IG Exhibits 1 through 6 and Petitioner’s Exhibits 1 through 8 into the record.  Neither party believed an in-person hearing to be necessary.  IG Br. at 5; P. Br. at 2.  Accordingly, I decide this case on the parties’ briefs and the exhibits of record.  Civ. Remedies Div. P. § 19(d).

III.   Issue

Whether the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to 42 U.S.C. § 1320(a)-7(a)(1).  See 42 C.F.R. § 1001.2007(a)(1).  If I affirm the basis for exclusion, the five-year length of exclusion is per se reasonable because that is the minimum exclusion period demanded by the Act for mandatory exclusions.  42 C.F.R. § 1001.102(a).

IV.   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 at 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).

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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.  Id.  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).  I have determined 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(c); Summary Order at 3-4.

V.   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.

1. 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).

2. 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.

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

At times relevant here, Petitioner was employed as a Medicaid Personal Support Worker ostensibly caring for her adult brother.  IG Ex. 2 at 1.  Oregon’s Medicaid Fraud Control Unit (MFCU) conducted an investigation from February 2016 through November 2018 that revealed Petitioner billed for services provided to her brother while he was in jail and she worked at a different job.  Id.  On February 21, 2019, a grand jury indicted Petitioner with eight counts of Making a False Claim for Health Care Payment and eight counts of Theft in the First Degree by Deception.  IG Ex. 3 at 1.  On December 8, 2021, Petitioner pleaded no contest to Count 2 of her indictment, Theft in the First Degree by Deception.  IG Ex. 2; IG Ex. 3 at 1-2.

Petitioner now contends she was not convicted of a criminal offense within the meaning of section 1128(a)(1) of the Act.  P. Br. at 1.  She argues her no contest plea does not qualify as a conviction.  Id. at 2.  Petitioner is incorrect.  The Act provides that an individual or entity is considered “convicted” when a judgment of conviction has been entered by a federal, state, or local court, or, relevant here, if a plea of guilty or no contest has been accepted by such a court.  42 U.S.C § 1320a-7(i)(1),(3).  Here, a state court entered judgment of conviction based on Petitioner’s no contest plea.  IG Ex. 5 at 1.  I therefore conclude Petitioner was convicted of a criminal offense within the meaning of the Act.

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 related 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 determining the relatedness of an offense, I am not bound to the elements of the charged offense.  Berton Siegel, D.O., DAB No. 1467 at 4 (1994) (“[i]t is not the labeling of the offense under the state statute which determines whether the offense is program-related”).  Instead, I examine the nature of the offense, which properly includes considering “facts upon which the conviction was predicated.”  Id.

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Petitioner argues her no contest plea to Theft of the First Degree by Deception is not related to the delivery of an item or service under Medicare or a state health care program because Theft by Deception on its face does not establish the requisite nexus.  P. Br. at 2.  But considering both the elements of the charged offense as well as the established facts leading to her conviction, Petitioner’s offense is clearly related to the delivery of an item or service under Medicare or a state health care program.

Petitioner’s conviction of Theft in the First Degree by Deception resulted from billing Oregon’s Medicaid program for services that were never rendered.  IG Br. at 4; IG Ex. 2 at 1.  Specifically, Petitioner billed Oregon Medicaid for services she claimed to have provided her brother while he was incarcerated and she was otherwise employed.  IG Ex. 2 at 1.  Submitting a false claim to a state Medicaid program is by definition related to the delivery of an item or service under a state health care program.  Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (filing improper claims with the Medicaid program is “a program‑related offense” and “such financial misconduct is exactly what Congress sought to discourage” through imposing exclusions.); see also Siegel, DAB No. 1467 at 6-7 (a criminal offense resulting in financial loss to a State Medicaid program was “related to” the delivery of items or services under that program because it resulted “in less funds being available to pay for covered services” delivered to Medicaid patients).

Court-ordered restitution to a State Medicaid program also evidences a nexus between an offense and the delivery of items or services under that Medicaid program.  Siegel, DAB No. 1467 at 6-7; see also Summit S. Shah, M.D., DAB No. 2836 at 8-10 (2017).  Here, the sentencing court required Petitioner to pay $15,000 in restitution to Oregon, reinforcing the connection between Petitioner’s offense of conviction and the delivery of a service under a state health care program.  IG Ex. 5 at 4.  I therefore conclude Petitioner’s offense of conviction was related to the delivery of an item or service under Medicare or a state health care program.

3. 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).  Neither I nor the IG have the discretion to impose a lesser period of exclusion.

4. I do not have authority to consider Petitioner’s constitutional arguments.

Petitioner argues the IG’s exclusion action violated her Fifth and Fourteenth Amendment rights.  P. Br. at 3.  Petitioner explains her exclusion precluded her from working in the healthcare field and amounts to a deprivation of her liberty and property rights.  Id. at 5.  She also asserts she was not given notice that her no contest plea would lead to what she

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believes to be an “illegal, unconstitutional, and unreasonably excessive sentence,” in essence an Eighth Amendment claim.  Id.

Whatever the merits of Petitioner’s claims, I am not empowered to invalidate or ignore federal statutes or regulations.  Donna Rogers, DAB No. 2381 at 5 (2011), citing 42 C.F.R. § 1005.4(c)(1).  The Board has previously rejected similar arguments, observing claims an exclusion action violates an individual’s constitutional rights “‘constitute[] an attack upon the Act and regulations on which neither the ALJ nor the Board may rule.’”  Funmilola Mary Taiwo, DAB No. 2995 at 9 (2020) (quoting W. Scott Harkonen, M.D., DAB No. 2485 at 22 (2012), aff’d, Harkonen v. Sebelius, No. C 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013)).

I must therefore decline to consider Petitioner’s constitutional arguments.  However, these issues are preserved for appeal to the Board and then a court of competent jurisdiction.

VI.   Conclusion

For the foregoing reasons, I affirm the IG’s exclusion action.  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)).  Her exclusion is effective 20 days from the March 31, 2022 letter issued by the IG.