Foly Coker, CR6269 (2023)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Foly Coker (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 October 31, 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 his 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 any such program.  IG Ex. 1.  The conviction took place in the State of Minnesota, District Court, 4^th Judicial District, Hennepin County.  IG Ex. 1. 

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On November 28, 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 December 5, 2022, the CRD issued an Acknowledgment Notice, my Standing Pre-Hearing Order, and the CRD Procedures. 

A pre-hearing conference was scheduled for January 9, 2023.  On January 9, 2023, the CRD issued an order summarizing the pre-hearing conference. 

On February 10, 2023, the IG filed a brief (IG Br.) in addition to eight exhibits (IG Exs. 1-8).  On March 23, 2023, Petitioner filed a brief (P. Br.) along with five¹ exhibits (P. Exs. 2-6).  The IG filed a reply brief (IG Reply) on April 5, 2023.  Petitioner filed a Sur-Reply (P. Sur-Reply) on April 10, 2023. 

II.     Admission of Exhibits and Decision on the Written Record

Both parties were asked whether an in-person hearing was necessary to decide this matter.  The IG indicated that an in-person hearing was not necessary.  Petitioner has neither requested an in-person hearing nor offered any witness testimony.  

As stated in the Prehearing Order, a hearing will be held only if a party asks to cross-examine a witness for whom the opposing party has provided written direct testimony and the witness’ proposed testimony is found to be relevant and non-cumulative.  Here, neither party has submitted written direct testimony which the other party would be able to cross-examine.  Therefore, a hearing is not necessary, and this matter will be decided on the written record.  

The IG did not object to Petitioner’s prehearing exchange or proposed exhibits, so they will be admitted into the record.  Petitioner did not object to the IG’s proposed exhibits.  Therefore, IG Exs. 1-7 and P. Exs. 1-6 will be admitted into the record. 

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). 

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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

1.   Good Faith, Incorporated

Petitioner was employed as a 30 percent owner of Good Faith, Inc. (Good Faith), a provider of personal care services to Medicaid beneficiaries.  See IG Ex. 6 at 4-5; IG Ex. 7 at 1.  The personal care services offered by Good Faith included assistance with personal hygiene, medication reminders, food preparation, grocery shopping, and housekeeping.  IG Ex. 6 at 4.  To provide these services, Good Faith hired or contracted with personal care assistants, who documented their work on timesheets and were supervised by qualified professionals.  IG Ex. 6 at 4.  These timesheets were submitted as claims for Medicaid reimbursement to the Minnesota Department of Human Services.  IG Ex. 6 at 4.  As a part-owner of Good Faith, Petitioner was responsible for reviewing the timesheet paperwork for accuracy and submitting the claims for reimbursement.  IG Ex. 6 at 5; IG Ex. 7 at 1-2.  Petitioner submitted claims for reimbursement which exceeded the hours worked by the personal care assistants and qualified professionals.  IG Ex. 6 at 5; IG Ex. 7 at 2.  Upon receiving reimbursement from the Minnesota Medicaid program, Good Faith issued payroll checks to the personal care assistants and qualified professionals for the hours they worked and kept the remaining reimbursement amount.  IG Ex. 6 at 5; IG Ex. 7 at 1-2. 

2.   Trans Ambulatory Transportation Service, Incorporated

Petitioner was the sole owner, biller, and driver for Trans Ambulatory Transportation Service, Inc. (Trans Ambulatory), which provided transportation services for Medicaid recipients traveling to and from covered services.  IG Ex. 6 at 4-5; IG Ex. 7 at 2.  Petitioner was required to keep trip logs detailing the origin and destination of the trip, the recipient being transported, the driver information, and the times for pick-up and drop-off.  IG Ex. 6 at 4.  Petitioner submitted three claims for reimbursement for transportation services he claimed he provided to Medicaid recipients, during times when Petitioner was physically outside of the United States and could not have provided the claimed services.  IG Ex. 6 at 5; IG Ex. 7 at 2.  The evidence shows that Petitioner submitted trip logs for reimbursement for transportation services provided on October 8, 2015.  However, Petitioner was in London, England from October 7, 2015 through October 14, 2015.  Additionally, Petitioner submitted trip logs for transportation services provided on November 7 and November 11, 2014.  However, records show that Petitioner was on in Lagos, Nigeria from November 6, 2014 to November 12, 2014. 

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3.   Petitioner’s Alford Guilty Plea and IG Exclusion

October 26, 2021, Petitioner entered an Alford guilty plea to one count of the offense of Theft by False Representation in violation of Minn. Stat. § 609.52.2(a)(3)(iii).  IG Ex. 2 at 4-6.  Petitioner conceded that there was a substantial likelihood that he would have been found guilty beyond a reasonable doubt of the offense to which he pled if he had gone to trial and that if the judge accepted his Alford guilty plea, he would be convicted of the offense to which he pled and considered just as guilty as he would be if he had admitted his guilt.  IG Ex. 2 at 6.  His plea was accepted and on March 9, 2022, the District Court Judge sentenced Petitioner to probation, community service, and ordered Petitioner to pay restitution to the Minnesota Department of Human Services in the amount of $39,248.35.  IG Ex. 4 at 2-3; IG Ex. 5 at 1; IG Ex. 8.  Petitioner was also prohibited from maintaining employment dealing directly with Medicaid funds.  IG Ex. 3 at 1; IG Ex. 4 at 2; IG Ex. 5 at 1; IG Ex. 8.  Petitioner’s offense disposition is noted as “Convicted” in the terms of disposition or sentence, and Petitioner’s sentence was suspended pending successful completion of probation, upon which the conviction would be entered as a misdemeanor.  IG Ex. 4 at 1; see also IG Ex. 5. 

On October 31, 2022, the IG notified Petitioner that he was being excluded from participation in all Federal health care programs for the minimum period of five years.  The IG excluded Petitioner under section 1128(a)(1) of the Act because of his October 26, 2021 conviction in the State of Minnesota, District Court, 4^th Judicial District, Hennepin County, of felony Theft by False Representation. 

VI.     Legal Authorities

The Secretary of the United States 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.  Petitioner has the burden of proving any affirmative defenses or factors to mitigate the length of the exclusion, if aggravating factors have been established.  42 C.F.R. § 1001.102(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 him 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)(1) (42 U.S.C. § 1320a-7(i)(1)); see also 42 C.F.R. § 1001.2 (paragraphs (a) and (c) under the definition of “Convicted”).  The evidence shows, and Petitioner does not dispute, that he entered an Alford guilty plea to Theft by False Representation on October 26, 2021.  P. Br.  Though Petitioner does not dispute that he was convicted of a criminal offense, he argues that his Alford plea means he did not admit guilt.  P. Br. 

Petitioner’s argument that his Alford plea does not qualify as a conviction is incorrect.  Because an Alford plea is denominated as a guilty plea, it still results in the imposition of a criminal penalty.  North Carolina v. Alford, 400 U.S. 25, 37 (1970).  Alford pleas are indistinguishable from other guilty pleas for the purpose of determining whether an individual has been convicted within the meaning of section 1128(i) of the Act.  Charles W. Wheeler and Joan K. Todd, DAB No. 1123 (1990); Kim J. Rayborn, DAB No. 2248 at 5-6 (2009) (citing Alford and Kennedy v. Frazier, 357 S.E.2d 43, 45 (W.Va. 1987) and finding the two elements of conviction under section 1128(i)(3) were satisfied when Petitioner’s Alford plea was accepted).  Therefore, Petitioner was convicted of a criminal offense. 

Next, 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 he entered a guilty plea to Theft by False Representation as a result of an agreement with the prosecutor for the State of Minnesota.  P. Br.  Petitioner

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did not admit guilt, but instead agreed that there is a substantial likelihood that the jury would have found him guilty based on the evidence if he had gone to trial.  P. Br.  Petitioner also argues that his case would be discharged from probation after two years if he met all of the conditions.  P. Br.  In determining whether Petitioner’s conviction is related to the delivery of a health care item or service, I must look beyond the conditions of the plea that Petitioner entered 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 IG’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 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 a conviction was predicated.”  Siegel at 4; Michael S. Rudman, M.D., DAB No. 2171 at 9 (2008) (an ALJ may consider “evidence regarding the nature of the offense, rather than the state’s labeling of the admitted offense”), aff’d sub nom. Rudman v. Leavitt, 578 F. Supp. 2d 812 (D. Md. 2008). 

In this case, Petitioner’s fraudulent conduct occurred via two separate schemes.  As part-owner of Good Faith, it was Petitioner’s responsibility to review the timesheet paperwork for accuracy and submit claims for reimbursement from the Minnesota Medicaid program.  IG Ex. 6 at 5; IG Ex. 7 at 1-2.  However, Petitioner submitted claims for reimbursement in excess of the hours worked by the personal care assistants and qualified professionals.  IG Ex. 6 at 5; IG Ex. 7 at 1-2.  Upon receiving the Medicaid reimbursement from the Minnesota Department of Human Services, Good Faith issued payroll checks to the personal care assistants and qualified professionals for the hours they worked and kept the additional reimbursement money.  IG Ex. 6 at 5; IG Ex. 7 at 1-2. 

As the sole owner, biller, and driver for Trans Ambulatory, Petitioner was responsible for submitting claims for reimbursement for transportation services he provided to Medicaid recipients.  IG Ex. 6 at 4-5; IG Ex. 7 at 2.  However, Petitioner submitted claims for services during times when he was outside of the United States and could not have physically provided the claimed services.  IG Ex. 6 at 4-5; IG Ex. 7 at 2. 

The total loss to the Minnesota Medicaid program as a result of Petitioner’s schemes amounted to $39,248.35.  IG Ex. 4 at 3; IG Ex. 5 at 1-2; IG Ex. 7 at 3; IG Ex. 8.  Petitioner was ordered to pay restitution to the Minnesota Department of Human Services and prohibited from maintaining employment dealing directly with Medicaid funds.  IG Ex. 3 at 1-2; IG Ex. 4 at 2-3; IG Ex. 5 at 1; IG Ex. 8.  The Board has ruled, and Federal courts have “held that crimes which occur when services are billed to Medicare or

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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 Theft by False Representation, 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 Medicaid 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 a/k/a Diane Marie Salak, 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.  In Petitioner’s Sur-Reply, he requests that the exclusion period be reduced to two years to run concurrently with his probation.  P. Sur-Reply.  Petitioner provided letters attesting to his good moral character and his value as an employee.  P. Ex. 5; P. Ex. 6.  Petitioner also argues that he should not be penalized for five years due to a mistake and that this exclusion will prevent him from earning the money he needs to repay the amount he borrowed to pay restitution.  P. Br.; P. Sur-Reply.  Petitioner’s situation, while sympathetic, does not serve as a basis to change the length of the exclusion.  Because it is determined that there is a basis for Petitioner’s exclusion, the mandatory minimum five-year 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 committed 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.

¹  Petitioner marked his Reply Brief as P. Ex. 1.  Petitioner’s five supporting exhibits are marked as P. Exs. 2-6.