Samuel Nathan Richmeier, DAB CR6239 (2023)

DECISION

Although the record in this case provides few underlying details, it seems that Petitioner Richmeier fabricated case management notes, which his employer used to bill, fraudulently, the Ohio Medicaid program.  Petitioner was charged with one misdemeanor count of possession of criminal tools (the false case management notes), to which he pleaded guilty.  Based on this, the Inspector General (IG) has excluded him for five years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(1) of the Social Security Act (Act). 

Petitioner appeals. 

For the reasons discussed below, I find that the IG properly excluded Petitioner.  Because the statute mandates a minimum five-year exclusion, the length of his exclusion is, by law, reasonable. 

Background

In a letter dated September 30, 2022, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of

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five years because he had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The letter explained that section 1128(a)(1) of the Act authorizes the exclusion.  IG Ex. 1. 

Petitioner timely requested review. 

The IG submitted a written argument (IG Br.) and four exhibits (IG Exs. 1-4).  Petitioner also submitted a brief (P. Br.).  The IG submitted a Reply (IG Reply).  In the absence of any objections, I admit into evidence IG Exs. 1-4. 

The parties agree that an in-person hearing is not necessary.  IG Br. at 3; P. Br. at 3. 

Discussion

1. Petitioner must be excluded from program participation for a minimum of five years because he was convicted of a criminal offense related to the delivery of an item or service under a state health care program.  Act §1128(a)(1).¹ 

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  42 C.F.R. § 1001.101(a). 

The conviction.  In a complaint issued on September 21, 2021, Petitioner was charged with one misdemeanor count of Possessing Criminal Tools, in violation of Ohio Rev. Code § 2923.24(A).  The complaint charged that, on or about March 16, 2020, through April 30, 2020, “as part of a course of criminal conduct,” Petitioner “did . . . possess or have under [his] control any substance, device, instrument, or article, with purpose to use it criminally, to wit:  false case management notes which [Petitioner] caused to be billed to the Ohio Department of Medicaid in Franklin, Ohio.”  IG Ex. 3 (emphasis added). 

On November 5, 2021, Petitioner pleaded guilty to the charge.  IG Ex. 2.  The court accepted his plea, imposed a fine, and ordered him to pay $247.50 in restitution to the Ohio Department of Medicaid.  IG Ex. 2. 

Petitioner’s crime was thus unquestionably related to the delivery of an item or service under a state health care program.  He created case management records for services that

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he did not provide.  His employer billed the Ohio Medicaid program for the phantom services.  Ohio Medicaid reimbursed the employer, and the employer then paid Petitioner.  See IG Ex. 4.  His conviction falls squarely within the statutory and regulatory definition of “conviction,” and his crime was directly related to the delivery of services under a state health care program.  He is therefore subject to exclusion. 

Petitioner’s defenses.  Petitioner complains that, at the time of his conviction, no one mentioned that he might be subject to an exclusion.  This does not alter the fact of his conviction, which does not require a showing that he was advised of all potential consequences of his guilty plea.  Janet R. Constantino, DAB No. 2666 at 10 (2015) (citing Ioni D. Sisodia, DAB No. 2224 at 7 (2008)). 

Petitioner also suggests that his crime was, in fact, the result of an innocent mistake and involved very little money, which he repaid.  He points out that the events occurred during the beginning of the COVID outbreak, which was a confusing time, causing him to submit electronically incorrect information.  Such a collateral attack on his conviction is precluded by regulation: 

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); Yolanda Hamilton, M.D., DAB No. 3061 at 9-10 (2022); Funmilola Mary Taiwo, DAB No. 2995 at 8 (2020); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000). 

That his crime involved a relatively small amount of money does not alter the facts that he was convicted and that his crime was related to the delivery of an item or service under the Medicaid program – the two elements that compel an exclusion. 

Finally, Petitioner complains about the length of time it has taken for the IG to act.  An administrative law judge has no authority to review the timing of the IG’s determination to impose an exclusion.  An effective date cannot be changed based on how long after his conviction the IG imposes the exclusion.  Rita Patel, DAB No. 2884 at 6-7 (2018); Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Samuel W. Chang, M.D., DAB No. 1198 (1990). 

An exclusion brought under section 1128(a)(1) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a). 

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Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid and all federal health care programs, and I sustain the five-year exclusion.

Endnotes

¹   I make this one finding of fact/conclusion of law.