Alfred A. Conteh, DAB CR6343 (2023)

DECISION

Respondent, the Inspector General of the United States Department of Health and Human Services (the IG), excluded Petitioner, Alfred Conteh, from participation in Medicare, Medicaid, and all other federal health care programs for five years based on his conviction for a criminal offense related to the delivery of an item or service under the Medicare or a state health care program.  Petitioner challenges his exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination.

I.    Procedural History

By letter dated February 28, 2023, the IG notified Petitioner of his exclusion, 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 minimum statutory period of five years.  IG Exhibit (Ex.) 1.¹  The IG explained she took this action based on Petitioner’s conviction, as defined in

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section 1128(i) (42 U.S.C. § 1320a-7(i)), in the Municipal Court of Franklin County, Ohio 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.

Petitioner timely requested a hearing before an administrative law judge.  I held a pre-hearing telephone conference on April 12, 2023, the substance of which is summarized in my April 12, 2023 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.

The IG filed a brief (IG Br.) and four proposed exhibits (IG Exs. 1-4), while Petitioner filed a brief (P. Br.) and three proposed exhibits (P. Exs. 1-3).  The IG subsequently filed a reply brief (IG 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 4 and Petitioner’s Exhibits 1 through 3 into the record.  Neither party requested a hearing nor offered witnesses.  IG Br. at 6; P. Br. at 5.  Accordingly, I decide this case on the briefs submitted and the exhibits of record.  Summary Order at 5; 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 for five years under 42 U.S.C. § 1320a-7(a)(1).  See 42 C.F.R. § 1001.2007(a)(1).

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 at 42 C.F.R. §§ 1001.2007(a) and 1005.2.  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.  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).  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(b).

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.

A.    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).

B.    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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On April 7, 2022, Special Agent Jennifer Loshark of the Ohio Attorney General’s Medicaid Fraud Control Unit filed a complaint in Franklin County Municipal Court swearing that from approximately May 13, 2020 to May 27, 2020, Petitioner “knowingly made a false or misleading statement or representation for use in obtaining reimbursement from the Medicaid Program.”  IG Ex. 3; IG Ex. 4 at 1.  Special Agent Loshark alleged Petitioner fraudulently billed the Medicaid program by submitting false documentation of home health services provided to Medicaid beneficiaries on dates when video surveillance confirmed he was not physically present at the homes of the beneficiaries in question.  IG Ex. 4.  The agent stated Petitioner’s false claims resulted in a loss of $606.97 to the Ohio Department of Medicaid.  Id. 

On August 9, 2022, the Municipal Court issued a document entitled “Sentence Entry” indicating Petitioner pleaded guilty to an amended charge² of “Attempt (M-2).”  IG Ex. 2.  The court accepted Petitioner’s guilty plea and found him guilty.  Id.  It imposed a suspended sentence of 90 days’ incarceration and noted Petitioner paid $606.97 in restitution.  Id.  

Petitioner does not appear to contest the fact of his conviction.³  P. Br. at 4 (“Petitioner is not attempting to collaterally attack this conviction . . .”).  He instead argues the IG has not established his criminal offense related to the delivery of an item or service under Medicare or any state health care program.⁴  Id.  Petitioner points out the Sentence Entry only reflects the circumstance of his conviction for a second-degree misdemeanor attempt crime but leaves blank the line identifying the crime attempted, meaning, by Petitioner’s reasoning, that the IG cannot meet her burden to show the relatedness of his offense for purposes of exclusion.  Id. 

The evidence of record is attenuated on that point.  The IG relies solely on the charging instrument, a complaint sworn out by a law enforcement agent which contains only a conclusory statement of guilt, and the entry of judgment for an unidentified misdemeanor

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attempt offense.  There is no evidence Petitioner stipulated to the charge identified by the IG, and the judgment of conviction itself fails to identify the criminal offense Petitioner admitted to attempting.  At first glance, this is indeed thin gruel.  

But Petitioner’s claim that the record therefore cannot lead me to conclude his conviction related to the delivery of health care items or services is ultimately untenable.  The Act requires Petitioner be excluded from participation in federal programs for a conviction 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).

Petitioner’s contention that a typographical error in the Municipal Court’s entry of judgment should permit him to escape exclusion is excessively formalistic and inconsistent with the broader intent of the Act.  I need merely find his conviction related to the delivery of a health care item or service to Medicare or a state health care program.  There is sufficient evidence to do so here.  State law enforcement brought a criminal charge against Petitioner in April 2022 in Franklin County Municipal Court that undisputedly relates to the delivery of an item or service to Medicare or a state health care program.⁵  IG Ex. 3; IG Ex. 4 at 1.  Petitioner then pleaded guilty in August 2022 to an unidentified attempt charge in the same court, which accepted his plea and entered judgment against him.  IG Ex. 2.

Petitioner would have me conclude there is no possible relationship between these two events, but the record does not permit such an inference.  There is evidence of a charge made against Petitioner.  There is evidence he pleaded guilty to resolve a charge against him in the same court within four months.  To assume these two events are not related would strain credulity.  While it is true the IG bears the ultimate burden as to demonstrating a conviction and its relatedness for purposes of exclusion, Petitioner could easily rebut the IG’s assertion that the April 2022 charge and the August 2022 conviction

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were related by identifying a different charge to which he could have pleaded.  He has not done so.  Absent any evidence of record to the contrary, I conclude Petitioner pleaded guilty in August 2022 to resolve the April 2022 charge against him.  His offense of conviction is more likely than not related to a charge that clearly relates to the delivery of an item or service under a state health care program and therefore mandates his exclusion.

The relatedness of Petitioner’s August 2022 plea and conviction to the April 2022 charge identified by the IG is further reinforced by the fact that the Municipal Court ordered him to pay restitution in the amount of $606.97.  IG Ex. 2.  In the probable cause affidavit filed against Petitioner, Special Agent Loshark asserted Petitioner’s false claims resulted in a loss of $606.97 to the Ohio Department of Medicaid.  IG Ex. 4.  Petitioner’s own evidence confirms he paid $606.97 to the “Ohio Department of Medicaid in care of Franklin County Municipal Court.”  P. Ex. 2.  Court-ordered restitution to a state Medicaid program is evidence of a nexus between the offense and the delivery of items or services under that Medicaid program.  Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994).  For these reasons, I conclude Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program requiring exclusion pursuant to 42 U.S.C. § 1320a-7(a)(1).

C.    The IG was required to exclude Petitioner under the Act’s mandatory exclusion authority. 

In his hearing request, Petitioner argues his exclusion under the mandatory exclusion authority found at section 1128(a)(1) of the Act was improper because he was convicted of a misdemeanor offense, which in his view could only trigger the IG’s permissive exclusion authority under section 1128(b)(1)(A) of the Act.  P. Hearing Req. at 2.

Petitioner appears to have abandoned this argument, but I address it for the sake of thoroughness.  It is without merit.  Section 1128(a)(1) of the Act, the basis for Petitioner’s exclusion cited by the IG, does not distinguish between misdemeanor and felony offenses.  It instead requires the IG to exclude any individual convicted of a “criminal offense” related to the delivery of an item or service under Medicare or a state health care program.  42 U.S.C. § 1320a-7(a)(1).

It is true that some criminal offenses could fall under both permissive and mandatory exclusion authorities.  But in that circumstance, the IG has no discretion to determine which exclusion authority to apply; instead, the IG must exclude an individual who is convicted of a crime subject to the mandatory exclusion authority.  See Gregory J. Salko, M.D., DAB No. 2437 at 4 (2012), quoting Timothy Wayne Hensley, DAB No. 2044 (2006) (“As the Board has observed, if an offense falls under the mandatory exclusion statute, ‘courts have repeatedly held that the I.G. is then required to impose a mandatory exclusion even if an individual’s conduct also falls within the scope of a permissive

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exclusion provision.’”).  The mere fact that Petitioner’s criminal offense resulted in a misdemeanor conviction does not preclude the possibility of mandatory exclusion, and as I have explained, Petitioner’s offense of conviction requires exclusion under section 1128(a)(1) of the Act.

D.    Petitioner must be excluded for a minimum of five years; the period of exclusion is therefore reasonable as a matter of law.

In his hearing request, Petitioner contends a mitigating circumstance is present that would warrant reduction of his period of exclusion.  P. Hearing Req. at 2.  Again, Petitioner appears to have abandoned this claim.  But even if the facts of Petitioner’s offense of conviction met the criteria for the mitigating factor he identified, mitigating circumstances can only be considered where the IG has opted to apply aggravating factors to increase the exclusion period beyond the five-year statutory minimum.  42 C.F.R. § 1001.102(c) (“Only if any of the aggravating factors set forth in paragraph (b) of this section justifies an exclusion longer than 5 years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than 5 years.”).  The IG has not done so here.  Mitigating factors are therefore inapplicable.

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.

VI.    Conclusion

For the foregoing reasons, 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)), effective 20 days after February 28, 2023, the date the IG issued him the notice of exclusion.

¹  Document No. 5b in the official case file maintained in the DAB E-File system; for clarity and simplicity, whenever possible I will cite to the exhibits attached to the parties’ respective briefs by the exhibit numbers therein, not the document numbers assigned by the E-file system.

²  The online case docket information provided by Petitioner confirms he was initially charged with a first-degree misdemeanor violation of section 2913.40(B) of the Ohio Revised Code, which criminalizes conduct necessary to commit fraud against the Medicaid program.  P. Ex. 3 at 1.  He then pleaded guilty to an amended charge, a second-degree misdemeanor violation of section 2913.40(B) of the Ohio Revised Code, which describes as a crime the attempt to commit any other offense.  Id.

³  Any such effort would be in vain.  The Act provides an individual or entity is considered “convicted” when a judgment of conviction has been entered by a federal, state, or local court, or a plea of guilty or no contest has been accepted in a federal, state, or local court.  42 U.S.C. § 1320a-7(i)(1), (3).  The Sentence Entry makes plain Petitioner pleaded guilty to resolve a charge against him, meaning he was convicted within the meaning of the Act.

⁴  In his hearing request, Petitioner concedes the fact of his conviction and its relatedness for purposes of exclusion.  P. Hearing Req. at 2 Par. 2.  But for purposes of this decision, I will not deem this an admission as it is inconsistent with Petitioner’s position in merits briefing.

⁵  In her sworn complaint, Special Agent Loshark accused Petitioner of fraudulently billing the Medicaid program by submitting false documentation of home health services provided to Medicaid beneficiaries on dates when video surveillance confirmed he was not physically present at the homes of the beneficiaries in question.  IG Ex. 4.  Submitting a false claim to Medicaid is clearly related to the delivery of an item or service under a state health care program.  See Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (conviction for filing claims with the Medicaid program is “a program‑related offense” and “such financial misconduct is exactly what Congress sought to discourage” through imposing exclusions); Kahn v. Inspector Gen. of the U.S. Dep’t of Health and Human Servs., 848 F. Supp. 432, 434, 436 (S.D.N.Y. 1994) (concluding that a podiatrist’s conviction for attempted grand larceny was program-related for purposes of an exclusion because it was related to the filing of false Medicaid claims).