Peggy Harper, DAB CR6462 (2024)

DECISION

Petitioner, Peggy Harper, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)), effective July 20, 2023.  Petitioner’s exclusion for five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a‑7(c)(3)(B)).¹ 

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I. Background

The Inspector General of the United States Department of Health and Human Services (IG) notified Petitioner by letter dated June 30, 2023, that she² was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  The IG cited section 1128(a)(1) of the Act as the basis for Petitioner’s exclusion.  The IG stated that the exclusion was based on Petitioner’s conviction in the Circuit Court of Raleigh County, West Virginia (state court), of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  IG Exhibit (IG Ex.) 1 at 1.  

Petitioner timely filed a request for hearing (RFH) on September 5, 2023, and the case was assigned to me to hear and decide.  I convened a telephone prehearing conference on December 28, 2023, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on December 29, 2023 (Prehearing Order). 

On January 29, 2023, the IG filed a Brief and Motion for Summary Judgment (IG Br.) and IG Exs.  1 through 5.  On February 22, 2023, Petitioner filed a letter in response to the IG brief (P. Br.) with no exhibits.  On February 23, 2023, Petitioner filed a supplemental letter in response to the IG brief (P. Supp. Br.) also with no exhibits.  The IG filed a reply brief (IG Reply) on March 14, 2023. 

Petitioner did not object to the IG’s exhibits.  Accordingly, IG Exs. 1 through 5 are admitted as evidence. 

II. Discussion

A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (the Secretary). 

Pursuant to section 1128(a) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted under federal or state law of, among other things, a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).  The Secretary has

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promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).  

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), 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.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c). 

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of not less than five years.  42 C.F.R. § 1001.102(a).  The Secretary has published regulations that establish aggravating factors that the IG may consider as bases to extend the period of exclusion beyond the minimum five-year period, as well as mitigating factors that may be considered only if the minimum five‑year period is extended.  42 C.F.R. § 1001.102(b), (c).  The IG imposed the minimum authorized five-year exclusion.  Accordingly, aggravating and mitigating factors are not relevant in this case. 

In this proceeding, 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, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d). 

B. Issues

The Secretary has by regulation limited my scope of review to two issues:  

Whether the IG has a basis for excluding an individual or entity from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1). 

When, as in this case, the IG imposes the minimum authorized five-year exclusion under section 1128(a) of the Act, there is no issue as to whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(2). 

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C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold text followed by my findings of fact and analysis. 

1. Petitioner timely filed her hearing request and I have jurisdiction.

There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005. 

2. Summary judgment is appropriate.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have a right to participate in the hearing.  42 C.F.R. §§ 1005.2‑.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12). 

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  Surabhan Ratanasen, M.D., DAB No. 1138 (1990); Foderick, DAB No. 1125. 

In opposing a properly supported motion for summary judgment, the nonmovant must allege facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense.  The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment.  To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder.  On summary judgment, the judge does not weigh the evidence or attempt to determine the truth.  Rather, the judge accepts the nonmovant’s evidence as true and draws all permissible inferences in the nonmovant’s favor.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986). 

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There are no genuine disputes of material fact in this case.  The undisputed facts show that Petitioner was convicted pursuant to her guilty plea of an offense related to the delivery of an item or service under the West Virginia Medicaid program.  The IG did not extend Petitioner’s exclusion beyond the minimum mandatory five years and, as a matter of law, no aggravating or mitigating factors may be considered.  Petitioner’s arguments do not raise a genuine dispute of material fact and must be resolved against her as matters of law. 

Accordingly, I conclude that summary judgment in favor of the IG is appropriate. 

3. Section 1128(a)(1) of the Act requires Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs.

a. Undisputed Facts

The following material facts are not disputed, and any inferences are drawn in Petitioner’s favor on summary judgment. 

On April 1, 2022, a warrant was issued for Petitioner’s arrest in the Magistrate Court of Raleigh County, West Virginia.  IG Ex. 2 at 1.  The warrant was issued based on a felony criminal complaint which alleged based on probable cause that Petitioner violated the West Virginia criminal code.  The criminal complaint alleged the following conduct as the bases for the charges: 

[Petitioner] was employed by the Raleigh County Commission on Aging, Inc. (RCCOA) in Raleigh County WV, and Central West Virginia Aging Services, Inc. (CWVAS).  The investigation determined, and [Petitioner] admitted, she completed and submitted time sheets between 5/9/2019 through 7/28/2020, claiming she provided services to WV Medicaid members, which were not rendered because [Petitioner] was employed by Dollar General, and/or working with other WV Medicaid members.  [Petitioner] submitted these fraudulent time sheets to the RCCOA and CWVAS, causing those entities to bill, and be paid by the WV Medicaid Program for a combined eleven (11) claims for services not rendered by [Petitioner] . . . . These eleven (11) fraudulent claims resulted in a total loss to the WV Medicaid Program in the amount of five-hundred five dollars and seventy-five cents ($505.75). 

IG Ex. 2 at 3. 

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On September 7, 2022, Petitioner was charged by criminal information in the state court with one count of misdemeanor false pretenses.  The information stated that “[Petitioner] did unlawfully obtain from . . . [the] West Virginia Department of Health and Human Resources (medical program), by false pretenses, token or representation, with intent to defraud, the money, goods or other property of a value less than $1,000.00.”  IG Ex. 3 at 1. 

On October 4, 2022, Petitioner pleaded guilty to the single count of misdemeanor false pretenses and the state court accepted Petitioner’s guilty plea and found her guilty of the misdemeanor.  Petitioner was sentenced to six months in jail, which was suspended with Petitioner placed on supervised probation for 18 months.  Petitioner was also fined $500 and ordered to pay restitution in the amount of $505.75 to the “State of West Virginia care of the West Virginia Attorney General Medicaid Fraud Control Unit.”  IG Ex. 4 at 1-2.  The state court restitution order states that as part of her offer to plead guilty, Petitioner “agreed and consented to the entry of this adverse Restitution Judgment Order in favor of the State of West Virginia in the amount of Five Hundred Five Dollars and Seventy-Five cents ($505.75).”  IG Ex. 5.  The restitution order further provided Petitioner would pay the restitution to the clerk of the state court who would then submit the payment to the West Virginia General Medicaid Fraud Control Unit.  IG Ex. 5. 

b. Analysis

The IG cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute provides in relevant part: 

(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 service under title XVIII or under any State health care program.

Act § 1128(a)(1).  Congress has, by the plain language of section 1128(a)(1) of the Act, required the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity:  (1) convicted of a criminal offense,

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whether a misdemeanor or felony;³ (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service was under Medicare or a state health care program. 

Petitioner does not dispute that she was convicted by the state court of a misdemeanor criminal offense when the state court accepted her guilty plea to the offense of misdemeanor false pretenses.  RFH at 2; P Br. at 1; P Supp. Br.  An individual or entity is “convicted” of an offense if a judgment of conviction is entered against the individual by a federal, state, or local court; when there has been a finding of guilt by a federal, state, or local court; or when a guilty plea is accepted by a federal, state, or local court.  Act § 1128(i)(1)-(3) (42 U.S.C. § 1320a-7(i)(1)-(3)).  Petitioner’s guilty plea was accepted, a finding of guilt was made, and the state court entered a judgment of conviction against Petitioner.  Therefore, Petitioner was convicted within the meaning of section 1128(i) of the Act.  I conclude that the first element triggering exclusion under section 1128(a)(1) of the Act is satisfied in this case. 

The criminal complaint supporting the warrant for Petitioner’s arrest (IG Ex. 2), the information (IG Ex. 3), the state court judgment and sentencing order (IG Ex. 4), and the state court restitution order (IG Ex. 5) show that there is a direct connection between Petitioner’s conviction for false pretenses was based on the false claims for services she falsely claimed she provided to West Virginia Medicaid beneficiaries – claims she submitted to her employers that were ultimately paid by West Virginia Medicaid.  I conclude that there is a nexus between Petitioner’s criminal conviction and the delivery of a service under West Virginia Medicaid.  I conclude the second and third elements that trigger mandatory exclusion under section 1128(a)(1) of the Act are satisfied. 

Petitioner sets forth various arguments in the documents she has filed in this case.  For example, she questions the timing of her warrant, arrest, and exclusion; and she asserts she told investigators she would pay back the funds she received but no one followed-up with her.  RFH; P. Br.; P. Supp. Br.; Departmental Appeals Board Electronic Filing System (DAB E-File) ## 9-10.  To the extent Petitioner’s arguments appear to challenge the state court proceedings, the regulations prohibit Petitioner from collaterally attacking her conviction in this forum on either substantive or procedural grounds, and I have no authority to conduct any review of her conviction by the state court.  42 C.F.R. § 1001.2007(d).  Petitioner also argues, for example, that it is extremely difficult for her to find and hold a job due to her exclusion, it is difficult for her to obtain a job doing

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what she likes that pays a meaningful wage, and she has many expenses related to her health.  RFH; P. Br.; P. Supp. Br.; DAB E-File ## 9-10.  Petitioner’s arguments may be construed to be requests for equitable relief.  However, I have no authority grant any equitable relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).  I have carefully considered all Petitioner’s arguments.  I conclude that Congress requires that the IG exclude Petitioner under section 1128(a)(1) of the Act based on the facts in this case. 

Accordingly, based upon the undisputed facts, I conclude that there is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act. 

4. Section 1128(c)(3)(B) of the Act requires a minimum exclusion of five years for an exclusion pursuant to section 1128(a) of the Act.

I have concluded that there is a basis to exclude Petitioner pursuant to section 1128(a)(1) of the Act.  Therefore, the minimum period of exclusion authorized by Congress in section 1128(c)(3)(B) of the Act is five years.  Nenice Marie Andrews, DAB No. 2656 at 5 (2015); Scott D. Augustine, DAB No. 2043 at 13-14 (2006).  

5. Petitioner’s exclusion for five years is not unreasonable as a matter of law.

Congress has established a five-year minimum period of exclusion for exclusions pursuant to section 1128(a) of the Act.  Act § 1128(c)(3)(B).  Pursuant to 42 C.F.R. § 1001.2007(a)(2), when the IG imposes an exclusion under section 1128(a) of the Act for the statutory minimum period of five years, there is no issue of whether the period of exclusion is unreasonable. 

One may understand Petitioner’s arguments to request review of the effective date of her exclusion.  However, there is no issue regarding when the period of exclusion begins.  Section 1128(c)(1) of the Act provides that exclusion under section 1128 of the Act shall be effective at “such time and upon such reasonable notice to the public and to the individual or entity excluded as may be specified in regulations . . . .” The Secretary requires by regulation that the IG send written notice of the exclusion to the affected individual or entity.  42 C.F.R. § 1001.2002(a).  The Secretary’s regulations provide that the exclusion is effective 20 days from the date of the IG notice.  42 C.F.R. § 1001.2002(b).  The Secretary’s regulations do not give me discretion to either review or change the effective date of Petitioner’s exclusion and I may not refuse to follow the Secretary's regulations.  42 C.F.R. § 1005.4(c)(1).  The Departmental Appeals Board (the Board) has addressed the issue and concluded that ALJs and the Board have no authority to change the effective date of the running of the period of exclusion as required by the Secretary.  Thomas Edward Musial, DAB No. 1991 at 3 (2005) (and cases cited therein). 

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Accordingly, I conclude that Petitioner’s exclusion for a period of five years is not unreasonable as a matter of law.  Petitioner’s exclusion is effective July 20, 2023, 20 days from the date of the June 30, 2022 IG notice of exclusion to Petitioner.  42 C.F.R. § 1001.2002(b).  

III.   Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum of five years, effective July 20, 2023. 

Endnotes

¹  Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires.  Reinstatement is not automatic upon completion of the minimum period of exclusion.  Citations are to the 2022 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated. 

²  The pronouns she and her are used in this decision as Petitioner expressed no other preference.  

³  Section 1128(a)(1) of the Act does not distinguish between misdemeanor and felony criminal convictions but applies to all criminal offenses related to the delivery of an item or service under Medicare or Medicaid.  Craig Richard Wilder, DAB No. 2416 at 6 (2011).