Patricia Sams, DAB CR6234 (2023)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Patricia Sams (Petitioner), from participation in Medicare, Medicaid, and all other federal health care programs for five years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  For the reasons discussed below, it is determined that the IG had a basis to exclude Petitioner from program participation, and the five-year mandatory exclusion period must be imposed.  The IG’s exclusion determination is affirmed.

I.      Background and Procedural History

By letter dated June 30, 2022, the IG excluded Petitioner from participating in Medicare, Medicaid, and all Federal health care programs pursuant to section 1128(a)(1) of the Act for five years effective 20 days from the date of the letter.  IG Exhibit (Ex.) 1.  Petitioner was excluded due to the conviction 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

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any such program.  IG Ex.1.  The conviction took place in the Common Pleas Court of Franklin County, Ohio.  IG Ex. 1.

On August 26, 2022, the Civil Remedies Division (CRD) received Petitioner’s timely request for hearing before an administrative law judge (ALJ) to contest the five-year exclusion imposed by the IG.  On August 31, 2022, CRD issued an Acknowledgment Notice, my Standing Pre-Hearing Order, and the CRD Procedures (Civ. Remedies Div. P.).

A pre-hearing conference was scheduled for October 3, 2022.  However, on the hearing date, CRD was notified that Petitioner’s counsel, George Cosenza, was litigating a murder trial and was unable to attend the hearing.  As a result, the pre-hearing conference was rescheduled to October 21, 2022.  On October 24, 2022, the CRD issued an order summarizing the pre-hearing conference. 

On November 17, 2022, the IG filed a brief (IG Br.) in addition to five exhibits (IG Exs. 1-5).  On December 16, 2022, Petitioner filed a brief (P. Br.) along with one exhibit (P. Ex. 1).   The IG filed a reply brief (IG Reply) on December 22, 2022 along with an objection to the admission of Petitioner’s exhibit.  IG Reply at 4. 

II.     Admission of Exhibits and Decision on the Written Record

P. Ex. 1 is an expert report by the Health Law Network, Inc. obtained by Petitioner to independently evaluate the accuracy and compliance of Petitioner’s medical and billing records with Medicaid requirements.  P. Ex. 1.  The report contains the expert’s findings and opinions regarding Petitioner’s Medicaid billing.  The IG objects to the admission of the report and argues that it serves as a collateral attack on Petitioner’s conviction.  IG Reply at 4.

P. Ex. 1 appears to counteract the allegations of fraudulent billing against Petitioner by reviewing and detailing the accuracy of Petitioner’s billing for certain Medicaid codes.  P. Ex. 1.  However, that information is irrelevant to the determination as to whether the IG has a legal basis to exclude Petitioner from federal healthcare programs and it serves as a collateral attack on the underlying facts surrounding Petitioner’s conviction.  “When the exclusion is based on the existence of a criminal conviction . . . by a Federal, State, or local court . . . where the facts were adjudicated and a final decision was made, the basis for 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.”  42 C.F.R. § 1001.2007(d); see also Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).  Evidence submitted solely for that purpose of collateral attack is irrelevant and therefore inadmissible.  42 C.F.R. § 1005.17(c).  Therefore, the IG’s objection is sustained.  P. Ex. 1 will not be admitted into the record.

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Petitioner requested a hearing and identified three witnesses, including Petitioner, who would offer testimony if this matter were to proceed to hearing.  P. Br. at 4.  On the short-form brief, in response to the question which requests a description of each witness’ proposed testimony, Petitioner responded “see report of Health Law Network, Inc., attached hereto.”  P. Br. at 4.  Again, the contents of the expert report are not relevant to these proceedings and the testimony of individuals regarding the report would not be helpful or relevant to this determination.  Additionally, Petitioner did not include the written direct testimony of each witness in the pre-hearing exchange.  Standing Pre-Hearing Order ¶ 5.  Lastly, the IG objected to Petitioner’s request for an in-person hearing and did not request to cross-examine any of Petitioner’s proposed witnesses. IG Reply at 4.  Therefore, Petitioner’s request for an in-person hearing is denied and this matter will be decided on the written record.  

Absent objection, IG Exs. 1-5 will be admitted into evidence. 

III.    Issue

The issue to be decided is whether the IG had a basis to exclude Petitioner from participation in Medicaid, Medicare, and other federal health care programs under section 1128(a)(1) of the Act.  42 C.F.R. § 1001.2007(a)(1). 

IV.     Jurisdiction

This tribunal has jurisdiction to adjudicate this case.  42 C.F.R. §§ 1001.2007(a)(1), 1005.2; see also 42 U.S.C. § 1320a-7(f)(1). 

V.      Findings of Fact

Petitioner was employed as a nurse practitioner at Worthington Center Management Company, Inc. (WCMCI).  IG Ex. 5.  The Ohio Attorney General’s Office received an anonymous complaint alleging that Petitioner was billing Medicaid for services not provided.  IG Ex. 5.  The complaint alleged that Petitioner documented seeing patients as late as 10:00 p.m. despite leaving the office between noon and 2:00 p.m.  IG Ex. 5.  The complaint also alleged that Petitioner instructed case managers to “bill to the max” regardless of the amount of time spent with patients.  IG Ex. 5 at 1. In addition, an investigator, Special Agent Myers, conducted surveillance and noted that Petitioner billed for more hours than she was physically present at WCMCI.  IG Ex. 5 at 2.  As a result of the complaint, the Ohio Attorney General’s Office launched an investigation. 

A Grand Jury Subpoena was issued to WCMCI on December 18, 2017.  Investigators learned that Petitioner held a meeting with case managers on January 29, 2018 and instructed them not to bring their cell phones and not to discuss the contents of the meeting with anyone.  IG Ex. 5.  Petitioner then passed around a “post-it” note suggesting

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that case managers change their times on documents and destroy the originals.  Petitioner destroyed the post-it once it was passed around to all participants.  IG Ex. 5. 

On or about March 19, 2019, Petitioner was indicted by a Special Grand Jury in the Court of Common Pleas in Franklin, County, Ohio for Grand Theft, Medicaid Fraud, and Attempted Tampering with Evidence.  IG Ex. 2.  Count Three of the indictment, Attempted Tampering with Evidence, stated:

From, on or about January 29, 2018 to on or about January 30, 2018, in Washington County, Ohio, as a continuing course of criminal conduct, Patricia A Sams did, knowing that an official proceeding or investigation was in progress, or was about to be or likely to be instituted, attempt to alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such processing or investigation, in violation of Ohio Revised Code § 2923.02/2921.12(A)(1), 2921.12(B), Attempted Tampering With Evidence, a Felony of the Fourth Degree.

IG Ex. 2 at 2 (underlining omitted).

On October 4, 2021, Petitioner pleaded guilty to Obstructing Justice, a fifth-degree felony, and a stipulated amended offense of the Attempted Tampering with Evidence charge. IG Ex. 3.  On the same date, the trial court accepted Petitioner’s guilty plea and sentenced her to one day of incarceration with credit for time served.  IG Ex. 4 at 2.  Petitioner was also ordered to pay $20,000 in restitution to the Ohio Department of Medicaid.  IG Ex. 4 at 2. 

VI.     Legal Authorities

The Secretary of the U.S. Department of Health and Human Services shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or any State health care program.  42 U.S.C. § 1320a-7(a)(1).  The Act requires a minimum exclusion period of five years when the exclusion is mandated under section 1320a-7(a).  42 U.S.C. § 1320a-7(c)(3)(B). 

In exclusion cases, the IG has the burden of proving the basis for the exclusion and the existence of any aggravating factors.  42 C.F.R. § 1005.15(c); Standing Pre-Hearing Order ¶ 6.  The standard of proof is a preponderance of the evidence, which means a fact is proven if the evidence shows that it is more likely true than not true.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  In this case, the IG must prove that Petitioner was convicted of an offense related to the delivery of a health care item or service under Medicare or a State health care program.

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An excluded individual may request a hearing before an ALJ, but only on the issues of whether the IG had a basis for the exclusion and whether an exclusion longer than the required minimum period is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a), 1005.2(a).

VII.    Analysis and Conclusions of Law

1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicaid program, which subjects her to a mandatory exclusion from all federal health care programs for a minimum of five years.

In order to prevail, the IG must prove that Petitioner was convicted of a criminal offense related to the delivery of a health care item or service.  Under the Act, an individual is considered to have been convicted of a criminal offense “when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to the criminal record has been expunged.”  Act § 1128(i)(3) (42 U.S.C. § 1320a-7(i)(3)); see also 42 C.F.R. § 1001.2 (paragraph (c) under the definition of “Convicted”).  The evidence shows, and Petitioner does not dispute, that she pleaded guilty to Obstruction of Justice on October 4, 2021.  P. Br. at 1-2.  Though Petitioner does not dispute that she was convicted of a criminal offense, she argues the conviction does not require an exclusion and that the conviction is not related to the delivery of a health care item or service within the meaning of the statute.  P. Br. at 2-3. 

To prove that Petitioner’s conviction was related to the delivery of a health care item or service, the IG must show that there is a nexus between the offense and the delivery of a health care item or service.  The Departmental Appeals Board (Board) has repeatedly held that the phrase “related to” within the context of section 1128(a)(1) requires only that a common‑sense nexus exist between the offense and the delivery of a health care item or service.  Summit S. Shah, M.D., DAB No. 2836 at 6 (2017) (citing cases).  Petitioner argues that she pleaded guilty to Obstruction of Justice as a result of an agreement with the State of Ohio, and that the substance of that statute is not related to Medicaid or the delivery of a healthcare service.  P. Br. at 2.  However, in determining whether Petitioner’s conviction is related to the delivery of a healthcare service, I must look beyond the label and definition of the criminal statute that Petitioner was convicted of and analyze the facts and circumstances of the underlying conviction. 

The Board has long held that an ALJ is free to look beyond the narrow constructs of a state’s criminal statutes.  Narendra M. Patel, DAB No. 1736 at 10 (2000) (Congress did not intend to limit the I.G.’s exclusion authority through “dependence on the vagaries of state criminal law definitions or record development”); Berton Siegel, D.O., DAB No. 1467 at 4 (1994) (“[i]t is not the labeling of the offense under the state statute which

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determines whether the offense is program-related”).  Moreover, when determining whether an exclusion is warranted, an ALJ may look at “evidence as to the nature of an offense” such as “facts upon which the conviction was predicated.”  Id.; Michael S. Rudman, M.D., DAB No. 2171 at 9 (2008), aff’d sub nom. Rudman v. Leavitt, 578 F. Supp. 2d 812 (D. Md. 2008) (an ALJ may consider “evidence regarding the nature of the offense, rather than the state’s labeling of the admitted offense”).  

In this case, Petitioner was investigated by the Ohio Attorney General’s Office due to an anonymous complaint indicating that Petitioner was billing Medicaid for services not provided.  IG Ex. 5.  Investigators met with patients to determine the length of meetings with nurses and case managers.  IG Ex. 5.  Most patients indicated that they spent 15-30 minutes in meetings with the nurse and Petitioner.  However, Petitioner’s billings indicated that she spent over an hour in those meetings.  IG Ex. 5.  During the investigation one employee stated that Petitioner instructed her to document everything in 30-minute increments for Medicaid recipients, regardless of how much time was spent with patients.  IG Ex. 5 at 1.  After a subpoena was issued for the investigation, Petitioner held a meeting and passed a “post-it” note to case managers instructing them to change times on documents and to destroy the original documents.  IG Ex. 5 at 2.  Additionally, the investigator conducted surveillance and found that Petitioner billed for more hours than she was physically present at WCMCI.  IG Ex. 5 at 2.  Lastly, Petitioner was ordered to pay $20,000 restitution to the Ohio Department of Medicaid.  IG Ex. 4 at 2. The Board has ruled, and Federal courts have “held that crimes which occur when services are billed to Medicare or Medicaid are included among those crimes which are related to the delivery of items or services under Medicare or Medicaid.”  Paul R. Scollo, D.P.M., DAB No. 1498 at 10 (1994) (citing Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990), and Travers v. Sullivan, 791 F. Supp. 1471 (E.D. Wash. 1992)).  Though Petitioner pleaded guilty to Obstruction of Justice, the underlying facts of the case clearly demonstrate that Petitioner’s conviction is related to the delivery of a health care item or service under the Medicare program. 

2. Because it has been determined that Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicaid program, a five-year exclusion must be imposed.

In appeals of mandatory exclusions, ALJs are restricted to considering whether there is a basis for exclusion, as described above, and whether the period of exclusion is reasonable.  42 C.F.R. § 1001.2007(a)(1).  However, where the IG imposes the mandatory minimum exclusion of five years, “the exclusion’s length is reasonable as a matter of law, and the excluded individual may request a hearing only on the issue” of whether there is a basis for exclusion.  Diane Marie Krupka, DAB No. 3020 at 2 (2020); 42 C.F.R. § 1001.2007(a)(2).  Here, the IG imposed an exclusion for the mandatory minimum period of five years.  Therefore, I am not permitted to change the length of the exclusion.  I find that there is a basis for Petitioner’s exclusion; therefore, the five-year

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exclusion must be upheld. 

VIII.  Conclusion

The IG has proven by a preponderance of the evidence that Petitioner was 1) convicted of a criminal offense; and 2) the offense was in connection with the delivery of a health care item or service.  Therefore, Petitioner shall be excluded from participating in Medicare, Medicaid, and other federal health care programs for the mandatory five-year period.  The five-year exclusion imposed by the IG is AFFIRMED.