Letatia Norris, DAB CR6410, (2023)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Letatia Norris, from participating in all federal health care programs for five years under 42 U.S.C. § 1320a‑7(a)(1). Petitioner requested a hearing before an administrative law judge to dispute the exclusion. For the reasons explained below, I conclude that the IG had a basis for excluding Petitioner for five years. 

I. Case Background and Procedural History

In an August 31, 2022 notice, the IG stated that Petitioner was being excluded from participation in all federal health care programs under section 1128(a)(1) of the Social Security Act (42 U.S.C. § 1320a-7(a)(1)) for a period of five years due to Petitioner’s conviction in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana (District Court) of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. IG Ex. 1 at 1. 

On November 1, 2022, Petitioner mailed to the Departmental Appeals Board (DAB), Civil Remedies Division (CRD), a request for a hearing before an administrative law judge (ALJ) to dispute the exclusion. Electronic Filing System (E-File) Doc. No. 1. The hearing request was routed to the DAB’s Medicare Operations Division, which

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administratively supports the Medicare Appeals Council. The Medicare Operations Division forwarded the hearing request to CRD on September 7, 2023.¹ E-File Doc. No. 1b. 

On September 14, 2023, CRD acknowledged receipt of Petitioner’s hearing request. CRD also issued my Standing Order and an Informal Brief for Petitioner to complete as part of Petitioner’s prehearing exchange. 

On October 1, 2023, Petitioner filed a completed Informal Brief (P. Br.). E-File Doc. No. 4. 

On October 5, 2023, I held a prehearing conference by telephone, the substance of which is summarized in my October 5, 2023 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions. At the conference, I informed the parties that the only issue I could decide in this case was whether the IG had a legitimate basis to impose an exclusion on Petitioner. In addition, I noted that Petitioner’s Informal Brief indicated that Petitioner did not believe an in-person hearing was necessary in this case. The IG agreed at the conference that an in-person hearing was not necessary. Therefore, I stated that I would decide this case on the written record. Finally, the parties agreed to a prehearing submission schedule. E-File Doc. No. 5. 

On November 2, 2023, the IG filed a brief (IG Br.) and six proposed exhibits. On December 3, 2023, Petitioner filed a revised Informal Brief (P. Rev. Br.) without any proposed exhibits. On December 7, 2023, the IG filed a reply brief. 

II. Issue

Whether the IG had a basis for excluding Petitioner from participating in all federal health care programs for five years under 42 U.S.C. § 1320a-7(a)(1). 

III. Admission of Evidence and Decision on the Written Record

I admit IG Exhibits 1 through 6 into the record because Petitioner did not object to them. See Standing Order ¶ 13; 42 C.F.R. § 1005.8(c).

The parties agreed at the prehearing conference that this case did not need an in-person hearing. E-File Doc. No. 5 at 2; see also IG Br. at 7; P. Br. at 2; P. Rev. Br. at 2.

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Therefore, I render this decision on the basis of the written record. 42 C.F.R. § 1005.16(b). 

IV. Jurisdiction

I have jurisdiction to adjudicate this case. 42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007, 1005.2. 

V. Findings of Fact

1. On August 10, 1996, Petitioner received a Physician Assistant Bachelor of Science degree. IG Ex. 3 at 3. 
2. On May 20, 2003, the Louisiana State Board of Medical Examiners (Board of Medical Examiners) granted Petitioner a physician assistant license. IG Ex 3 at 3. 
3. On an unspecified date, Petitioner was charged before the Board of Medical Examiners with multiple violations of the Physician Assistant Act. IG Ex. 3 at 1. 
4. In an October 2, 2006 Opinion and Order, the Board of Medical Examiners found that Petitioner: practiced as a physician assistant without a license from December 5, 1998 until May 19, 2003; practiced without a supervising physician for six months in 2005; and wrote numerous prescriptions in the names of various supervising physicians without proper consultation or authorization. The Opinion and Order stated that Petitioner’s physician assistant license was revoked and cancelled; however, it also stayed the license revocation and instead suspended Petitioner’s license for three years subject to various terms and conditions. IG Ex. 3 at 4-6.
5. Although Petitioner had sought reinstatement of her physician assistant license since 2009, by 2019, Petitioner’s license was still suspended. See IG Ex. 2 at 3. 
6. On March 11, 2019, an official with the Louisiana Medicaid Fraud Control Unit signed an Affidavit for Arrest Warrant alleging that Petitioner committed Medicaid Fraud. The Affidavit stated that Petitioner worked for a family medicine practice and treated patients while her physician assistant license was still suspended. The family practice billed Medicaid for Petitioner’s services under the National Billing Identifier (NPI) for other licensed individuals (i.e., a physician and two nurse practitioners). A judge of the District Court countersigned the affidavit. IG Ex. 2. 

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7. On April 25, 2019, the Louisiana Attorney General filed a Bill of Information with the District Court charging Petitioner with one count of Medicaid Fraud:

   [S]he intentionally caused a Louisiana Medicaid provider to present for payment false & fraudulent claims for furnishing services to Medicaid recipients, where the defendant was fraudulently treating patients in her official capacity as a provider of medical services, where the defendant’s medical license was suspended and inactive. Thus, the Medicaid services were either never rendered or the documentation submitted by the defendant was false in order to obtain greater compensation than that to which she was legally entitled to & all with the intent to defraud the state through any medical assistance program created under the Federal Social Security Act and administered by the Louisiana Department of Health in violation of La. R.S. 14:70.1. 

IG Ex. 4. 

8. On October 27, 2021, Petitioner appeared before the District Court. At the proceeding, the charge against Petitioner was amended to False Personation, and Petitioner pleaded guilty to that charge. IG Ex. 5 at 1; see also IG Ex. 4 at 1. The District Court questioned Petitioner under oath, found that there was “a factual basis for the plea” and “ruled that it would accept the defendant’s guilty plea.” IG Ex. 5 at 1. Under Article 894 of the Louisiana Code of Criminal Procedure, the District Court deferred the imposition of a sentence on Petitioner for six months, and ordered Petitioner to be placed on probation with special conditions. 
9. Also on October 27, 2021, the District Court ordered that Petitioner “Be Excluded from Louisiana Department of Health and Hospital Medicaid Program for a period of 5 years.” IG Ex. 5 at 1. The exclusion was based on Petitioner conviction for False Personation. IG Ex. 6. 
10. On March 3, 2022, the District Court set aside Petitioner’s conviction and dismissed the criminal case against Petitioner under Article 894 of the Louisiana Code of Criminal Procedure because Petitioner was neither charged with nor convicted of any criminal offense during the period of probation. IG Ex. 5 at 1.

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VI. Conclusions of Law and Analysis

1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicaid program; therefore, exclusion is required under 42 U.S.C. § 1320a‑7(a)(1).

The IG must exclude an individual from participation in any federal health care program if that individual was 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 (i.e., the Medicaid program).² 42 U.S.C. § 1320a‑7(a)(1). The facts in this case show that Petitioner meets this standard for exclusion. 

Petitioner was convicted of a criminal offense. For purposes of exclusion, individuals are deemed “convicted” of an offense if any of the following are met: 

(1) 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 criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

42 U.S.C. § 1320a‑7(i)(1)-(4). In the present case, Petitioner pleaded guilty to a crime, the District Court questioned Petitioner concerning that plea, the District Court found there was a factual basis for the plea, and the District Court accepted the guilty plea. IG

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Ex. 5 at 1. Therefore, the record shows that Petitioner is considered, for exclusion purposes, to have been “convicted” under 42 U.S.C. § 1320a‑7(i)(3). 

In addition, the facts in this case support the conclusion that Petitioner was convicted of a criminal offense, for purposes of exclusion, because Petitioner participated in a deferred adjudication. 42 U.S.C. § 1320a‑7(i)(4). The District Court withheld sentencing while Petitioner served six months of probation and then dismissed the criminal case and conviction at the end of the probation period. IG Ex. 5 at 1. The District Court took this action under Article 894 of the Louisiana Code of Criminal Procedure, which is entitled “Suspension and deferral of sentence; probation in misdemeanor cases.” This provision permits a court to suspend imposition of a sentence for a defendant who has been convicted of a misdemeanor and to place the defendant on probation instead. La. Code Crim. Proc. art. 894(A)(1). Further, “[w]hen the imposition of sentence has been deferred by the court, as authorized by Article 894], and the court finds at the conclusion of the period of deferral that the defendant has not been convicted of any other offense during the period of the deferred sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution.” La. Code Crim. Proc. art. 894(B)(1). Therefore, it is clear that Petitioner was “convicted” because Petitioner participated in a deferred adjudication program under Louisiana law. 

Petitioner’s criminal offense was also “related to” the delivery of a health care item or service under the Medicaid program. For purposes of exclusion, the term “related to” simply means that there must be a nexus or common-sense connection. See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating 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). 

There is no doubt that a conviction for a crime involving Medicaid program fraud is “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 false 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 & 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); Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990) (“There is no question that Mr. Greene’s crime [of filing false claims] resulted in a Medicaid overpayment and was a program-related crime triggering the mandatory exclusion under Section 1320a‑7(a).”).

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Although Petitioner was originally charged with Medicaid fraud, Petitioner’s charge was amended to False Personation. IG Ex. 5 at 1; see also IG Ex. 4 at 1. Petitioner argues that the criminal charge did not involve impersonating a doctor and that Petitioner “did not [d]eliver any item or service under Medicare or a State health care [program] that I was not able to deliver. I had no knowledge of the billing practices of employer.” P. Br. at 2. 

Despite the change in the charge against Petitioner, the facts alleged in the original charge appear to have served as the basis for the ultimate charge to which she pleaded guilty. IG Ex. 4 at 1 (the Bill of Information includes hand notations of the change in the charge, but no changes were made to the alleged facts). The relevant facts in the Bill of Information indicate Petitioner fraudulently treated patients when Petitioner’s license as a physician assistant was suspended, and then Petitioner submitted claims with false information to obtain compensation from the Medicaid program that Petitioner was not entitled to receive. IG Ex. 4 at 1. The District Court found there was a factual basis for Petitioner’s guilty plea to the amended charge. IG Ex. 5 at 1. 

It is easy to see why the District Court could find Petitioner committed the false personation charge based on the facts alleged in the Bill of Information. The elements of the false personation offense include acting with intent to defraud or obtain a special privilege or advantage from impersonating a private individual having special authority by law to perform an act affecting the rights or interests of another. La. Rev. Stat. § 14-112. 

It is equally easy to conclude that Petitioner’s conduct in treating patients with a suspended license and then billing the Medicaid program under the NPIs of licensed providers is related to the delivery of items or services under the Medicaid program. IG Ex. 2 at 2-3. The record shows that Petitioner’s criminal conviction was based on practicing as a physician assistant while Petitioner’s license was suspended, and participating in a scheme in which the Medicaid program was billed for the services Petitioner provided under the NPIs of others. As a result, Petitioner’s conviction has a nexus to Petitioner’s services that were billed to the Medicaid program, and Petitioner was properly excluded under 42 U.S.C. § 1320a-7(a)(1). 

While Petitioner disputes knowing of the billing practices of the family practice for which Petitioner worked, it is sufficient that Petitioner pleaded guilty to the amended charge because Petitioner cannot collaterally attack the basis for that charge in this proceeding. 42 C.F.R. § 1001.2007(d). 

2. Petitioner must be excluded for a minimum of five years.

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 of five years. 42 U.S.C.

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§ 1320a‑7(c)(3)(B); 42 C.F.R. § 1001.102(a). Therefore, I have no authority to review or alter the length of the exclusion imposed on Petitioner. See 42 C.F.R. § 1001.2007(a)(2). As stated by a court of appeals: 

Once [the IG] found that the . . . state court’s disposition of the charge amounted to a conviction of a program-related offense, the Inspector General had no choice but to impose the mandatory 5-year exclusion under § 1320a-7(a)(1).

Travers, 20 F.3d at 998.

Petitioner argues that “I fully cooperated with the Attorney General on all matters, including wearing a wire. Original agreement was to testify against the actual accused to help with their conviction. However, the [Attorney General] did not have a strong case to convict at all and my testimony was not needed.” P. Rev. Br. at 3. 

It is possible that Petitioner cooperated with law enforcement as Petitioner alleges. However, while such cooperation could constitute a mitigating circumstance under the regulations related to the length of exclusion, (see 42 C.F.R. § 1001.102(c)(3)), a mitigating factor can only reduce the length of an exclusion that exceeds five years and cannot reduce the length of exclusion below the mandatory minimum five-year period. See 42 C.F.R. § 1001.102(c). Therefore, even if Petitioner could meet the burden of proving this mitigating factor, it cannot serve as a reason to reduce the length of exclusion below five years. 

VII. Conclusion

I affirm the IG’s determination to exclude Petitioner for five years from participating in all federal health care programs under 42 U.S.C. § 1320a‑7(a)(1). 

Endnotes

¹ While the record is unclear why Petitioner’s hearing request was originally routed to the Medicare Operations Division instead of CRD, the mostly likely explanation is that Petitioner’s hearing request included a completed form for appealing an ALJ decision to the Medicare Appeals Council. 

² A “State health care program” includes “a State plan approved under title XIX” of the Social Security Act, which is generally referred to as the Medicaid program. 42 U.S.C. § 1320a-7(h)(1); 42 C.F.R. 1000.10 (definitions of “Medicaid” and “State health care program.”).