Lakeisa Buckner, DAB CR6341 (2023)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Lakeisa Buckner, 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, who had been employed as a direct service staff member at a group home, based on her conviction for theft from a resident of that home.  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 April 28, 2023, 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 Ex. 1 at 1.  The IG stated that Petitioner’s exclusion was based on a “conviction (as defined in section 1128(i) of the Act), in the Court of

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Common Pleas, Kent County, State of Delaware, 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 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.  IG Ex. 1 at 1; 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, who is pro se,filed a request for an administrative law judge (ALJ) hearing on May 11, 2023.  Petitioner contemporaneously filed a copy of a docket sheet showing that the Delaware Attorney General, on July 20, 2022, had filed a nolle prosequi with respect to the following charges:  Commission of a crime against “I.L.,”¹ a vulnerable adult; theft from a senior; and unlawful use of a payment card (less than $1,500).  Departmental Appeals Board (DAB) E-File Docket Entry No. 1.  On May 16, 2023, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order).  Following a May 31, 2023 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 eight exhibits (IG Exs. 1-8).  Petitioner filed an informal brief (P. Br.).  In the absence of any objections, I admit IG Exs. 1-8 into the evidentiary record.

Neither party has requested an opportunity to cross-examine any witnesses.²  See Pre-Hearing Order §§ 14-16.  Consequently, it is unnecessary to convene a hearing for the purpose of cross-examination of any witnesses.  The record is closed, and the case is ready for a decision on the merits.

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II.    Issue

Whether the IG has a basis for exclusion pursuant to section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)).  If so, a minimum period of exclusion of five years is mandated.  42 C.F.R. § 1001.2007(a)(1)-(2).

II.    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 Analysis³

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.⁴  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 for an offense that was related to the delivery of an item or service under Medicare or a state health care program (i.e., Medicaid).  IG Br. at 2-3; see IG Exs. 3-5, 7-8.  Although Petitioner argues that she was not convicted of theft from a group home resident, she is mistaken.  P. Br. at 2 (“Yes, I disagree with the argument because again I was not charged.  All the charges was dropped and everything was [nolle prosequi] all I agreed to do was pay restitution because that’s what my attorney tell me that’s all I needed to do since charges was dropped.”).  Petitioner was convicted of theft, and her sentence included a suspended 12-month term of incarceration, one year of probation, and an order to pay $3,200 in restitution to the victim.  IG Exs. 3 at 2; 4.  The facts support that Petitioner was convicted of a criminal offense, for purposes of the Act, that mandates exclusion from all federal health care programs.

Petitioner was employed as “direct service staff” at a group home in Delaware.  IG Ex. 7 at 1.  Petitioner acknowledges that as an employee of the group home, she would assist R.M. with using an ATM machine to access cash.  P. Br. at 2 (“I agreed to . . . pay the restitution because I was the one taking him to the ATM.”).  An affidavit in support of a complaint and warrant, dated November 13, 2021, reported that on July 23, 2021, a staff member from the group home contacted police after she discovered that someone had made unauthorized withdrawals from R.M.’s bank account.⁵  IG Ex. 8 at 4.  The police investigation revealed that ATM withdrawals were made from R.M.’s bank account without R.M. present on eight separate occasions in June and July 2021, totaling $3,200.  IG Ex. 8 at 4.  The fraud department for R.M.’s bank provided “three photos of the suspect and all are the same suspect,” and the staff member who had contacted the police identified the individual in the photographs as Petitioner.  IG Ex. 8 at 4-5.  The investigating officer also compared Petitioner’s “most recent [State Bureau of Investigation] photo to the ATM surveillance, and confirmed they were the same person.”  IG Ex. 8 at 5.  Petitioner was arrested on November 17, 2021, at which time numerous charges involving the unlawful use of a payment card and theft in excess of $1,500 from a vulnerable adult were filed.  IG Ex. 3 at 1.

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In advance of a preliminary hearing, the state reduced the charges, entering a nolle prosequi for the most serious charges on February 2, 2022.  IG Exs. 2 at 1; 3 at 2.  On February 4, 2022, the Attorney General filed a nine-count information charging eight counts of unlawful use of a payment card and a single count of theft of less than $1,500.  IG Ex. 6.

At her preliminary hearing on February 4, 2022, Petitioner entered a guilty plea to a single count of theft.⁶  IG Ex. at 3 at 2.  The presiding judge ordered that Petitioner “[b]e committed to the Department of Corrections of the State of Delaware at Level V for a term of . . . 12 months,” with all of that term suspended.  IG Exs. 3 at 2; 4 at 1.  Petitioner was ordered to serve a 12-month term of Level I probation, with “Intake by 2/11/22,” and ordered to pay $3,200 in restitution to R.M., a group home resident who had been under her care.  IG Exs. 3 at 2; 4 at 1; see IG Ex. 7 at 1 (Medicaid Fraud Control Unit case closing report, documenting that Petitioner was “direct service staff” and R.M. “was a resident of that home and needed help with financial transactions.”).

As outlined above, the record unquestionably demonstrates that Petitioner was convicted of theft from R.M., a resident of the group home.  Contrary to reality, Petitioner claims “[a]ll the charges was dropped and everything was [nolle prosequi] . . .  all I agreed to do was pay restitution because . . . that’s what my attorney tell me that’s all I needed to do since charges was dropped.”  P. Br. at 2.  The evidence unquestionably demonstrates that Petitioner was convicted of theft from R.M.  IG Exs. 3 at 2; 4 at 1.

While I cannot discern whether Petitioner is being deliberately untruthful in denying that she has a criminal conviction, or is somehow, albeit implausibly, unaware of her conviction for theft, I acknowledge another possibility that Petitioner may be confused regarding which of her criminal cases formed the basis for the IG’s imposition of an exclusion.  The evidentiary record indicates that, at the time police investigated the theft from R.M., Petitioner “was on Probation Before Judgment for stealing money from a home care patient when she worked as a home health aide.”  IG Ex. 7 at 2.  Further, and in support for her request for hearing, Petitioner submitted a docket report for yet another criminal case filed on May 25, 2022 (following her conviction for theft from R.M.) that involved a different reportedly “vulnerable adult” victim, “I.L.”  DAB E-File docket entry No. 1.  The docket sheet for that case indicates that on July 20, 2022, the Attorney General entered a nolle prosequi, with the condition of “no contact with [I.L.] for 12 months.”⁷  DAB E-File docket entry No. 1.  Thus, to the extent Petitioner argues she was not convicted of theft from a group home resident, she may be referring to one of the other cases in which she was charged with theft from an individual under her care.

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Inasmuch as the IG provided evidence that Petitioner’s criminal conviction for theft from R.M. formed the factual basis for a mandatory exclusion, there is no plausible reason why Petitioner, after reviewing the IG’s pre-hearing exchange, would continue to deny she had been convicted of theft from R.M.

Petitioner limits her arguments to her erroneous claim that she was not convicted of the criminal offense that was the basis for her exclusion, and she offers no other arguments.  P. Br. at 2, 4.  Notably, aside from disputing that she has a criminal conviction, Petitioner has not denied the facts that are the basis for the IG’s exclusion, to include that she provided care to R.M. at a group home, and that items and services provided to R.M. at the group home during the timeframe of the unauthorized withdrawals from his bank account (June 2021) had been reimbursed by the Medicaid program.  See IG Ex. 7 at 1.

“The Board has repeatedly held that the phrase ‘related to’ within the context of section 1128(a)(1) requires only that a common-sense nexus exists between the offense and the delivery of a health care item or service under the state healthcare program.”  Summit S. Shah, M.D., DAB No. 2836 at 6 (2017) (citing James O. Boothe, DAB No. 2530 at 3 (2013); James Randall Benham, DAB No. 2042 at 5 (2006)).  Petitioner “was a direct service staff” at the group home (IG Ex. 7 at 1), and she was involved in R.M.’s care, to include accessing funds for him.  P. Br. at 2 (“I agreed to . . . pay the restitution because I was the one taking him to the ATM”); IG Ex. 7 at 2 (Petitioner’s report to investigators that she accessed funds from the ATM at the request for R.M.).  The group home received Medicaid reimbursement for items or services provided to R.M.  IG Ex. 5.  There is a factual basis to support that the Petitioner’s criminal offense of theft from R.M. was related to the delivery of an item or service under the Medicaid program.

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 for a criminal offense related to the delivery of items and services under a state health care program, I uphold the IG’s imposition of an exclusion for the mandated minimum period of five years, effective May 18, 2023.  42 C.F.R. § 1001.2002(b).

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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 under 42 U.S.C. § 1320a 7(a)(1).

Endnotes

¹  I have redacted the names of individuals who were reported to be the victims of crimes.

²  The IG submitted a written report that had been prepared by an auditor with the  Delaware Medicaid Fraud Control Unit that listed claims for items or services provided to “R.M.” (the victim of Petitioner’s crime that is the basis for the exclusion) that had been reimbursed by the Medicaid program, along with the auditor’s written declaration that she had prepared the report.  IG Ex. 5.  In response to a question in the short-form brief asking Petitioner whether “the IG submit[ted] the written testimony of any witness who you would like to cross-examine,” Petitioner answered, “No.”  P. Br. at 3.  As I discuss below, Petitioner’s arguments are limited to her claim that she was not convicted of the offense that is the basis for her exclusion; Petitioner has not otherwise disputed that factual basis for her exclusion, to include that she provided direct services to R.M., that R.M. was a group home resident, or that items or services R.M. received at the group home were reimbursed by Medicaid.  IG Ex. 5 at 2-13.

³  My findings of fact and conclusions of law are set forth in italics and bold font.

⁴  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.

⁵  The complainant reported that “all employees have access to [R.M.’s] debit card . . . and the pin, which is supposed to be kept in a safe in the group home.”  IG Ex. 8 at 4.

⁶  The Order of the Sentence reported:  “All other charges with this case number were nolle prosequi by the State.”  IG Ex. 4 at 1.

⁷  The docket sheet does not address the payment of restitution to I.L.