Letatia Norris, DAB No. 3135 (2024)

FINAL DECISION ON REVIEW OF 
ADMINISTRATIVE LAW JUDGE DECISION

Letatia Norris (Petitioner), appearing pro se, appeals a decision by an administrative law judge (ALJ) upholding Petitioner’s exclusion by the Inspector General (I.G.) from participation in all federal health care programs for a period of five years.  Letatia Norris, DAB CR6410 (2023) (ALJ Decision).  The ALJ concluded that the I.G. had a valid basis to exclude Petitioner pursuant to section 1128(a)(1) of the Social Security Act (Act),¹ and concluded that the length of the exclusion was not reviewable because five years is the statutory minimum under section 1128(c)(3)(B).  For the reasons set forth below, we affirm the ALJ Decision.

Legal Background

Section 1128(a)(1) of the Act requires the Secretary of the Department of Health and Human Services (Secretary) to exclude from participation in all federal health care programs any individual who has been “convicted of a criminal offense related to the delivery of an item or service under [Medicare] or under any State health care program.”  Act § 1128(a)(1); see also 42 C.F.R. § 1001.101(a).  Exclusions imposed under section 1128(a) are referred to as “mandatory” exclusions.

An individual is considered to be “convicted” of a criminal offense when:  (1) a judgment of conviction has been entered against the individual 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) there has been a finding of guilt against the individual by a federal, state, or local court; (3) a plea of guilty or no contest by the individual has been accepted by a federal, state, or local court; or (4) the individual has entered into participation in a first offender, deferred adjudication, or other

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arrangement or program where judgment of conviction has been withheld.  Act § 1128(i); see also 42 C.F.R. § 1001.2.  “State health care program” is defined by section 1128(h) of the Act to include “a State plan approved under title XIX” of the Act, that is, a state’s federally-approved Medicaid program.  Accord 42 C.F.R. § 1000.10.  The mandatory minimum period of an exclusion imposed under section 1128(a) is five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  

An excluded individual may request a hearing before an ALJ, but only on the issues of (1) whether the “basis for” exclusion exists, and (2) whether “[t]he length of exclusion is unreasonable.”  42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a).  When, as here, the exclusion is imposed under section 1128(a) for the minimum five-year period, the excluded individual may request a hearing only on the issue of whether the I.G. had a basis for the exclusion.  Id. § 1001.2007(a)(1)-(2); see Robert C. Hartnett, DAB No. 2740, at 2 (2016) (citing cases).  The underlying conviction is not reviewable or subject to collateral attack on substantive or procedural grounds.  42 C.F.R. § 1001.2007(d).  The ALJ issues an initial decision based only on the record developed before the ALJ.  Id. § 1005.20(a).

A party dissatisfied with the ALJ’s initial decision may appeal the decision to the Board.  42 C.F.R. § 1005.21(a).  Board review of an ALJ decision is, in general, based on the record developed before the ALJ.  See id. § 1005.21(f); Gracia L. Mayard, M.D., DAB No. 2767, at 6-8 (2017).  The Board “will not consider any issue not raised in the parties’ briefs, nor any issue in the briefs that could have been raised before the ALJ but was not.”  42 C.F.R. § 1005.21(e).  

Case Background²

In August 1996, Petitioner obtained a Physician Assistant Bachelor of Science degree from the Louisiana State University School of Applied Health Professions.  ALJ Decision at 3 (¶ 1); I.G. Ex. 3, at 3.  On May 20, 2003, the Louisiana State Board of Medical Examiners (Board of Medical Examiners) granted Petitioner a physician assistant license.  ALJ Decision at 3 (¶ 2); I.G. Ex. 3, at 3.³  Between obtaining her degree in August 1996 and becoming a fully-licensed physician assistant in Louisiana in May 2003, Petitioner passed the physician assistant’s examination in 1999, was twice granted a temporary license, and applied to the Board of Medical Examiners for permanent licensure in December 2002.  I.G. Ex. 3, at 3.

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Petitioner later was charged before the Board of Medical Examiners with multiple violations of the Physician Assistant Practice Act and other laws.  ALJ Decision at 3 (¶ 3); I.G. Ex. 3, at 1; see La. Rev. Stat. § 37:1360.21 et seq.  By Opinion and Order dated October 2, 2006, the Board of Medical Examiners found that Petitioner, among other things:  (1) practiced as a physician assistant in Louisiana without a valid license from December 1998 to May 2003, constituting “unauthorized practice of medicine”; (2) practiced without a supervising physician for six months in 2005; (3) issued unlawful prescriptions without a patient-specific order from a supervising physician; and (4) wrote numerous prescriptions using the signatures or initials of supervising physicians without obtaining proper authorization.  I.G. Ex. 3, at 2, 4-6; ALJ Decision at 3 (¶ 4).  The Board of Medical Examiners revoked and cancelled Petitioner’s physician assistant license.  However, it immediately stayed the revocation and suspended Petitioner’s license for three years subject to conditions of probation, with permission to request reinstatement from the Board after the suspension period.  I.G. Ex. 3, at 5-6, 8-10.  Petitioner sought reinstatement of her license starting in 2009, but by 2019 her license remained suspended.  ALJ Decision at 3 (¶ 5) (citing I.G. Ex. 2, at 3).

On March 11, 2019, an official with the Louisiana Medicaid Fraud Control Unit executed an Affidavit for Arrest Warrant (Affidavit), countersigned by a state court judge, alleging that Petitioner committed Medicaid Fraud under La. Rev. Stat. § 14:70.1.  I.G. Ex. 2; ALJ Decision at 3 (¶ 6).  The Affidavit stated that while working for a family medical practice, a Louisiana Medicaid provider, Petitioner was observed treating patients while her physician assistant license was suspended.  I.G. Ex. 2, at 1-2.  The Affidavit stated that a medical assistant told an investigator she believed Petitioner was a physician assistant after observing Petitioner treat patients; and some patients said they believed Petitioner was a particular physician at the practice.  Id. at 2.  The Affidavit stated that during an interview, Petitioner “admitted to treating patients . . . when her PA license was suspended” and “knew it was wrong to practice as a PA with a suspended license.”  Id. at 3.  The Affidavit also alleged that the practice engaged in a “systematic billing scheme” whereby the practice’s owner ordered the billing department to submit claims to Louisiana Medicaid for reimbursements for Petitioner’s unlicensed medical services, “which allowed for [the practice] to benefit off of the . . . patients who were treated by [Petitioner].”  Id. at 2.  The Affidavit alleged that when submitting claims related to Petitioner’s services, the practice submitted the NPIs⁴ of other providers, i.e. the owner of the practice as well as a physician and two nurse practitioners who were neither present at nor employed by the practice during the dates of service listed on the claims submitted for reimbursement.  Id.

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On April 25, 2019, the Louisiana Attorney General filed a Bill of Information with the Nineteenth Judicial District Court of Louisiana, charging Petitioner with one count of Medicaid Fraud.  I.G. Ex. 4.  The Bill of Information alleged that Petitioner

intentionally caused a Louisiana Medicaid provider to present for payment false & fraudulent claims for furnishing services to Medicaid recipients, where [Petitioner] was fraudulently treating patients in her official capacity as a provider of medical services, where [Petitioner’s] medical license was suspended and inactive.  Thus, the Medicaid services [were] either never rendered or the documentation submitted by [Petitioner] 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 . . . Social Security Act and administered by the Louisiana Department of Health, in violation of La. R.S. 14:70.1. 

I.G. Ex. 4, at 1-2.

On October 27, 2021, Petitioner appeared before the court, wherein the Medicaid Fraud charge was amended to one count of “False Personation,” a misdemeanor.  ALJ Decision at 4 (¶ 8); I.G. Ex. 4, at 1; I.G. Ex. 5 (Minutes Report).⁵  Under Louisiana law, “false personation” is––

 A.  . . . the performance of any of the following acts with the intent to injure or defraud, or to obtain or secure any special privilege or advantage:

(1)  Impersonating any public officer, or private individual having special authority by law to perform an act affecting the rights or interests of another, or the assuming, without authority, of any uniform or badge by which such officer or person is lawfully distinguished; or
(2)  Performing any act purporting to be official in such assumed character.

La. Rev. Stat. § 14:112(A)(1)-(2).

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Petitioner pleaded guilty to the amended charge of False Personation, the court questioned Petitioner under oath, and the court found there was “a factual basis for the plea” to the amended charge and accepted Petitioner’s plea.  I.G. Ex. 5, at 1; ALJ Decision at 4 (¶ 8).  Under Article 894 of the Louisiana Code of Criminal Procedure (Article 894), the court deferred sentencing for six months and ordered that Petitioner be placed on probation for that time under special conditions.  I.G. Ex. 5, at 1.⁶  The court also ordered that Petitioner be excluded from the Louisiana Medicaid program (Louisiana Medicaid) for five years.  Id.; ALJ Decision at 4 (¶ 9).  On March 3, 2022, the court ordered that the “conviction be set aside and the prosecution be dismissed in accordance with Article 894,” because Petitioner had not been charged with or convicted of any criminal offense during the period of probation.  I.G. Ex. 5, at 1.

By letter dated August 31, 2022, the I.G. notified Petitioner that pursuant to section 1128(a)(1) of the Act, Petitioner was being excluded from all federal health care programs for the statutory minimum period of five years.  I.G. Ex. 1, at 1.  The I.G. stated that the exclusion was due to Petitioner’s 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.”  Id. 

ALJ Proceedings and Decision

Petitioner requested a hearing before an ALJ (RFH), challenging the basis for the exclusion and “asking that the [I.G.] do not impose the exclusion” because the length of the exclusion was “excessive.”  RFH at 3.  Following a pre-hearing conference, the ALJ issued an order memorializing events at the conference and establishing that the only issue the ALJ could decide was whether the I.G. had a valid basis to exclude Petitioner under the Act.  The I.G. filed a brief and six exhibits (I.G. Exs. 1-6).  Petitioner filed a brief, a revised brief, and no exhibits. 

Before the ALJ, Petitioner admitted she was convicted of a criminal offense but argued that the offense was not a conviction for which exclusion was required under the Act.  P. Rev. Br. to ALJ at 1-2.  Petitioner asserted that she never introduced herself as a doctor and that “some may refer to” her by that title because she had a doctorate degree.  Id. at 2.  She asserted that she did not deliver any item or service under any health care program that she was not permitted to deliver, did not “bil[l] directly to any agencies” or collect funds from any agency, and had no knowledge of her employer’s billing practices.  Id.

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The ALJ admitted all of the I.G.’s exhibits.  ALJ Decision at 3.  Noting the parties’ prior statements that they did not request an in-person hearing, the ALJ concluded that a hearing was unnecessary and issued a decision based on the written record.  Id. at 2-3. 

The ALJ upheld the exclusion, concluding that the I.G. had a basis for excluding Petitioner under section 1128(a)(1) of the Act.  ALJ Decision at 5-7, 8.  The ALJ first found that Petitioner was “convicted” within the meaning of the Act, because the “District Court accepted the guilty plea” and because Petitioner participated in a “deferred adjudication” under state law.  Id. at 5-6 (citing Act § 1128(i)(3)-(4)).  The ALJ then found that Petitioner was convicted of an offense that was “related to” the delivery of items or services under Louisiana Medicaid.  Id. at 6.  The ALJ stated that the phrase “related to,” in the context of I.G. exclusions under section 1128(a) of the Act, “simply means that there must be a nexus or common-sense connection.”  Id. (citing Quayum v. U.S. Dep’t of Health & Hum. Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998) and Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012)).  The ALJ found that the factual allegations underlying the charge to which Petitioner pleaded guilty provided sufficient evidence that Petitioner was convicted of an offense that related to the delivery of items or services under Louisiana Medicaid.  Id. at 7.  The ALJ noted that while the initial charge was amended, “the facts alleged in the original charge appear to have served as the basis for the ultimate charge to which [Petitioner] pleaded guilty,” and “the Bill of Information includes hand notations of the change in the charge, but no changes were made to the alleged facts.”  Id. (citing I.G. Ex. 4, at 1). 

Focusing on the facts alleged in the Affidavit and the Bill of Information, and the court’s reliance on those facts in accepting Petitioner’s plea, the ALJ stated:

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.

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.  I.G. 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 

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Medicaid program, and Petitioner was properly excluded under [section 1128(a)(1)].

ALJ Decision at 7 (internal citation omitted).

Lastly, the ALJ found that Petitioner “must be excluded for a minimum of five years” and “I have no authority to review or alter” the exclusion length.  ALJ Decision at 7-8 (citing Act § 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2)).  The ALJ also rejected a request that the ALJ consider Petitioner’s alleged cooperation with prosecutors in a separate criminal case, an assertion Petitioner made without any supporting evidence.  Id. at 8.  The ALJ stated that while such a fact, if true, may qualify as a “mitigating factor” under some circumstances, “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.”  Id. (citing 42 C.F.R. § 1001.102(c)). 

Standard of Review

We review a disputed issue of fact as to whether the ALJ’s decision is “supported by substantial evidence on the whole record.”  42 C.F.R. § 1005.21(h).  We review a disputed issue of law as to whether the ALJ’s decision is “erroneous.”  Id.  “Substantial evidence is ‘more than a mere scintilla of evidence.’”  Shelia Ann Reed, DAB No. 3059, at 6 (2022) (quoting Ellen L. Morand, DAB No. 2436, at 3 (2012)).  “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (in turn quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))) (citation omitted).

Analysis

In the request for review (RR), Petitioner admits she was convicted of a crime but again challenges the legal basis for the exclusion.  RR at 1.  Petitioner states that it “is assumed” that the facts underlying the initial Medicaid Fraud charge were the basis for the conviction but points out that “I was not convicted for Medicaid Fraud. I was convicted of false personation” which “had nothing to do with the fact[s] in the original charge.”  Id.  Petitioner again states that she had no role in her employer’s billing practices and “did not intentionally cause a Louisiana Medicaid provider to present for payment, false or fraudulent claims furnishing services to [M]edicaid recipients.”  Id. 

Petitioner also argues that she worked at the employer in question only as a “medical supervisor and medical assistant,” and did not fraudulently treat patients “in an official capacity as a provider of medical services, while my medical license was inactive.”  RR at 1.  Petitioner repeats the assertion that her conviction was based on an allegation that she presented herself as a “medical doctor” on the ground that, she surmises, patients may have inferred she was a doctor because her peers called her “Doc” as a result of her 

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having obtained a doctorate degree.  Id.  Petitioner also asserts that she is “certified as a physician assistant” and that her “NCCPA license is active and current since 2009.”  Id. 

As further explained below, we reject Petitioner’s arguments and conclude that the ALJ Decision is supported by substantial evidence and free of legal error.  

I. The Board will not consider Petitioner’s newly submitted evidence.

Petitioner’s RR included four attachments:  (1) a copy of the above-noted “Minutes Report” from the court; (2) a printout of the Louisiana statute for Medicaid Fraud; (3) a diploma in Petitioner’s name for Doctor of Health Science, dated September 30, 2018, from Nova Southeastern University; and (4) a letter dated January 16, 2024, from the National Commission on Certification of Physician Assistants (NCCPA), stating that “Letatia Renee Vance” is “board certified by NCCPA, . . . which will remain valid until December 31, 2024,” and that “[t]his PA was initially certified or regained certification on July 15, 2010.”

The Board has held that generally, it “decides I.G. exclusion appeals based on the record developed” before the ALJ.  Farzana Begum, M.D., DAB No. 2726, at 18 n.10 (2016), aff’d, No. 16-cv-9624, 2017 WL 5624388 (N.D. Ill. Nov. 21, 2017).  If a party submits additional evidence on appeal, the Board may remand the appeal to the ALJ for consideration of the evidence, but only if the party demonstrates that such evidence “is relevant and material and that there were reasonable grounds for the failure to adduce such evidence at such [ALJ] hearing.”  42 C.F.R. § 1005.21(f); see Mayard, M.D. at 7 (citing id.).  The first two attachments above are not properly considered new evidence.  The first is duplicative of an exhibit (I.G. Ex. 5) that is already part of the administrative record, and the second is a publicly-accessible webpage of a criminal statute.  With respect to the other attachments, Petitioner makes no argument asserting “reasonable grounds” for not having submitted them to the ALJ for consideration.  We too discern no reasonable grounds.  Both documents either existed during the ALJ proceedings or, in the case of the NCCPA letter, could have been adduced at that time had Petitioner so wished.  We therefore do not consider the new submissions in rendering this decision, though we shall retain them in the administrative record.⁷

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II. The ALJ’s determination that the I.G. had a basis to exclude Petitioner under section 1128(a)(1) of the Act is supported by substantial evidence and free of legal error.

Because the I.G. excluded Petitioner for the statutory minimum of five years, the only issue for the ALJ (and the Board) to consider was whether the I.G. had a basis to exclude Petitioner under section 1128(a)(1) of the Act.  See 42 C.F.R. § 1001.2007(a)(1), (2); ALJ Decision at 2.  An exclusion under section 1128(a)(1) has a legal basis when:  (1) the Petitioner was convicted of a criminal offense, and (2) the offense “related to the delivery of an item or service” under Medicare or a State health care program.  Act § 1128(a)(1).

A. Petitioner was convicted of a criminal offense within the meaning of the Act.

For purposes of exclusion, a person is “considered to have been ‘convicted of a criminal offense’ if any of the four subsections” under section 1128(i) of the Act are met.  Nenice Marie Andrews, DAB No. 2656, at 4 (2015).  As relevant here, a person is convicted “when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court,” or “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.”  Act § 1128(i)(3)-(4). 

Petitioner admits she was convicted of a crime.  See RR at 1 (“I was convicted of false personation which was [a] misdemeanor . . . .”); accord P. Rev. Br. to ALJ at 1.  Petitioner also does not challenge the ALJ’s conclusion that based on evidence in the record, subsections (3) and (4) were satisfied under the terms of Petitioner’s particular plea arrangement.  For this reason alone, we affirm this finding.  Furthermore, the ALJ’s analysis was correct.  The Minutes Report submitted by the I.G., memorializing events occurring at court hearings in October 2021 and March 2022, shows that Petitioner consented to an arrangement under which she pleaded guilty, the court accepted the plea, and the court withheld judgment and deferred imposition of sentencing until the end of a probationary period, when the court ordered that Petitioner’s suspended conviction “be set aside and the prosecution be dismissed.”  I.G. Ex. 5.  The ALJ’s conclusion that Petitioner was convicted of a crime under both subsection (3) and subsection (4) was correct and is supported by Board precedent.  See, e.g., Funmilola Mary Taiwo, DAB No. 2995, at 5 (2020) (affirming ALJ’s finding of a conviction under section 1128(i) because “Petitioner entered a guilty plea that was accepted by the state court, satisfying subsection (3),” and “also entered into an ‘arrangement’ in which the judgment of conviction was withheld, meeting the elements of subsection (4)”). 

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B. Petitioner was convicted of an offense that was related to the delivery of an item or service under Louisiana Medicaid.

Our analysis now turns to whether the offense for which Petitioner was convicted related to the delivery of an item or service under Medicare or a state health care program.  “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)); see also Scott D. Augustine, DAB No. 2043, at 5-6 (2006) (collecting cases).  When determining whether the requisite nexus exists, it is well-settled that an ALJ may consider “evidence as to the nature of an offense,” including the “facts upon which the conviction was predicated.”  Shah at 7.  Importantly, ALJs are “not limited to considering the bare elements or labels of the criminal statutes under which the individual was convicted.”  Taiwo at 8 (citing Shah at 7 (“The Board has long held . . . that an ALJ is free to look beyond the narrow constructs of a state’s criminal statutes.”)).  

Furthermore, “the test for whether a common-sense nexus exists is ‘based on all relevant facts’ and ‘not merely a narrow examination of the language within the four corners of the final judgment and order of the criminal trial court.’”  Yolanda Hamilton, M.D., DAB No. 3061, at 10 (2022) (quoting Shah at 8).  ALJs are also “not limited to considering only those facts established in the underlying criminal proceedings.”  Reed, DAB No. 3059, at 15 (citations omitted).  “ALJs may, among other things, look to ‘the factual allegations underpinning the offense with which a petitioner was charged and which form the basis for the requisite conviction.’”  Id. (quoting Hartnett, DAB No. 2740, at 7).  “This has led to a body of case law in which the convicted charges displayed no explicit link to a protected health care program, but where additional extrinsic evidence established a nexus under section 1128(a)(l).”  Shah at 8 (citing cases). 

We find that substantial evidence in the record supports the ALJ’s conclusion that Petitioner’s criminal offense related to the delivery of services under Louisiana Medicaid.  ALJ Decision at 6-7.  The ALJ found, first, that Petitioner fraudulently provided medical services to patients in the capacity of a physician assistant at a time when she was not licensed to do so; and second, that Petitioner “participated in a scheme in which the Medicaid program was billed for the services Petitioner provided under the NPIs of others” – thus establishing the required commonsense nexus between Petitioner’s criminal offense and the delivery of patient “services that were billed to the Medicaid program.”  Id. at 7.  In reaching these conclusions, the ALJ properly considered evidence of the allegations underpinning Petitioner’s offense and guilty plea:  the Affidavit for Arrest Warrant (I.G. Ex. 2); the original and amended Bills of Information (for Medicaid Fraud and False Personation) (both I.G. Ex. 4); and the Minutes Report (I.G. Ex. 5). 

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The ALJ reasonably concluded that while Petitioner was convicted of False Personation, “the District Court found there was a factual basis for Petitioner’s guilty plea to the amended charge,” and that “the facts alleged in the original [Medicaid Fraud] charge appear to have served as the basis for the ultimate charge to which she pleaded guilty.”  ALJ Decision at 7 (citing I.G. Ex. 4; I.G. Ex. 5).  Specifically, the ALJ observed that despite the addition of handwritten notations to the original Bill of Information (for Medicaid Fraud), which created the amended charge (I.G. Ex. 4), “no changes were made to the alleged facts” within the original Bill of Information.  Id.  As noted above, the allegations in the amended charge detailed Petitioner’s fraudulent treatment of “patients in her official capacity as a provider of medical services,” and intentional involvement in her employer’s fraudulent Medicaid billing practices.  I.G. Ex. 4.  The ALJ also considered the allegations in the Affidavit (I.G. Ex. 2), which set forth in even greater detail Petitioner’s intentional and fraudulent treatment of patients at a time when she knew her physician assistant license was suspended (and indeed had been suspended for many years), and her participation in a scheme in which Medicaid was billed for services Petitioner provided under the NPIs of others.  ALJ Decision at 7.  The ALJ further found that on the same day the court accepted Petitioner’s guilty plea, the court ordered that Petitioner be excluded from the Louisiana Medicaid program for five years based on her False Personation conviction.  ALJ Decision at 4 (¶ 9) (citing I.G. Ex. 5, at 1; I.G. Ex. 6).  In short, substantial evidence in the record, including evidence of Petitioner’s conviction and of the factual allegations underpinning the conviction, supports the ALJ’s conclusion that there was a “nexus” between Petitioner’s criminal offense and the delivery of items or services under Louisiana Medicaid.

We reject Petitioner’s repeated attempt to deny the factual basis for her guilty plea and conviction, in contradiction of the record evidence.  See RR at 1.  Reiterating arguments she made to the ALJ – without supporting evidence – Petitioner argues, “I did not fraudulently[ ] treat patients in an official capacity as a provider of medical services, while my medical license was inactive,” and “I did not work for [Petitioner’s employer] as a provider or physician assistant.”  Id.; see also id. (“I plead[ed] guilty to the charge of false personation, because my peers do refer to me as ‘Doc’ because I have a doctorate degree. . . .  I admit many may assume the title Dr. automatically implies I am doctor of medicine.”).

Initially, as the ALJ observed, the elements of the False Personation statute “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 others.”  ALJ Decision at 7 (citing La. Rev. Stat. § 14‑112).  Thus, it is not a crime to merely be mistaken for a medical doctor or to be called “Doc” by one’s peers having obtained a doctorate degree.  Still further, Petitioner presented no evidence that her False Personation offense was based on anything other than the facts alleged in the relevant charging documents.  The factual allegations from the original Bill of Information, which the ALJ reasonably found were incorporated into 

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the amended Bill of Information (for False Personation) and were the basis for Petitioner’s guilty plea, make plain that Petitioner’s offense was based not on her being called “Doc” by her peers, but rather on “fraudulently treating patients in [Petitioner’s] official capacity as a provider of medical services, where [her] medical license was suspended and inactive.”  I.G. Ex. 4.  The underlying Affidavit provides even greater supporting detail:  Petitioner presented herself to peers and patients as a physician assistant and under the name of a known physician; “admitted to treating patients . . . when her . . . license was suspended”; and “knew it was wrong to practice as a [physician assistant] with a suspended license.”  See supra at 3; I.G. Ex. 2, at 2-3.      

Moreover, Petitioner’s attempts to refute the facts underpinning her guilty plea constitute an impermissible collateral attack on her conviction, which, the ALJ correctly concluded, the governing regulations prohibit.  ALJ Decision at 7; see also 42 C.F.R. § 1001.2007(d) (“When the exclusion is based on the existence of a criminal conviction . . . imposing liability by Federal, State or local court . . . , the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in th[e] appeal.”); see also Laura Leyva, DAB No. 2704, at 7 (2016) (“The regulation’s prohibition on collateral attacks recognizes that it is the fact of the conviction which causes the exclusion.  The law does not permit the Secretary to look behind the conviction.”) (internal emphasis and quotation marks omitted).  The basis for Petitioner’s conviction is set forth in the (amended) False Personation charge and in the factual allegations that, the ALJ reasonably concluded, were incorporated into the amended charge and accepted by the court as the “factual basis” for Petitioner’s guilty plea.  Petitioner may not lawfully contest that conviction or its factual basis before the ALJ or the Board.

We also reject Petitioner’s argument that her conviction did not satisfy the requirements of section 1128(a)(1) because, she says, she was not convicted of Medicaid Fraud, she did not “intentionally cause” her employer to present false claims for reimbursement to Louisiana Medicaid, and she had no knowledge of or “direct involvement” in her employer’s Medicaid billing practices.  RR at 1.  We construe Petitioner to mean that the crime to which she pleaded guilty, False Personation, did not establish the requisite connection between her conduct and a covered health care program, as required by section 1128(a)(1).

As an initial matter, section 1128(a)(1) does not require a showing of Medicaid fraud, or of any type of fraud, as Petitioner seems to suggest.  See Dewayne Franzen, DAB No. 1165, at 7-8 (1990) (rejecting pharmacist’s contention that fraud is the determining factor as to whether a criminal offense is “related to” Medicaid).  Although an exclusion under section 1128(a)(1) can (as was the case here) involve underlying fraud or fraudulent conduct, section 1128(a)(1) requires only that one be convicted of an offense that is “related to” the delivery of an item or service under Medicare or a State health care program.  Thus, the absence of a conviction for Medicaid Fraud does not defeat the basis 

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for Petitioner’s exclusion under section 1128(a)(1).  See id. at 8 (“[A] criminal offense may be related to the delivery of an item or service under the Medicaid program even if that offense does not specifically require criminal intent.”).

Further, Petitioner’s narrow focus on the label of the statute to which she pleaded guilty is contradicted by Board precedent.  In evaluating whether the requisite “nexus” exists between an individual’s offense and the delivery of items or services under a covered health care program, the ALJ is not limited to considering the bare elements of the criminal statute for which the individual was convicted.  See Shaun Thaxter, DAB No. 3053, at 22 (2021) (“The Board has repeatedly held that the basis for an exclusion stems from the nature and circumstances of the underlying conviction, not the label or even the elements of the crime.”) (citing cases).  “[T]he test for whether a common-sense nexus exists is based on all relevant facts,” Shah at 8, and ALJs may examine “the factual allegations underpinning the offense with which a petitioner was charged and which form the basis for the requisite conviction.”  Hartnett at 7. 

Thus, in concluding there was a nexus between Petitioner’s offense and Louisiana Medicaid – specifically, that Petitioner “participat[ed] in a scheme in which the Medicaid program was billed for the services Petitioner provided under the NPIs of others” – the ALJ appropriately considered all record evidence that established the basis for her plea.  ALJ Decision at 7.  The ALJ correctly observed that the amended Bill of Information left unchanged the language from the original Bill of Information setting forth the allegations against Petitioner.  Id.  That language stated not just Petitioner’s fraudulent treatment of patients but also that she “intentionally caused [her employer] to present for payment false & fraudulent claims for furnishing services to Medicaid recipients,” and that her conduct was done “with the intent to defraud the state through any medical assistance program created under the [Act] and administered by the Louisiana Department of Health.”  I.G. Ex. 4, at 1-2 (emphasis added).  Those unchanged allegations became the basis for the False Personation charge and, the ALJ reasonably concluded, were the “factual basis” the court found when it accepted Petitioner’s guilty plea.  ALJ Decision at 7 (noting that “the facts alleged in the original charge appear to have served as the basis for the ultimate charge to which [Petitioner] pleaded guilty”) (citing I.G. Ex. 5). 

In addition, the allegations in the Affidavit detailed a clear relationship between the unlawful services Petitioner admitted to providing and her employer’s “systematic” scheme of submitting false reimbursement claims to Louisiana Medicaid based on Petitioner’s unlawful services, “which allowed for [the practice] to benefit off of the . . . patients who were treated by [Petitioner].”  I.G. Ex. 2, at 2.  Lastly, when withholding judgment and setting forth the terms of Petitioner’s probation, the court ordered that Petitioner be excluded from Louisiana Medicaid for five years, providing even further evidence that Petitioner’s offense was related to a “State healthcare program” under section 1128(a)(1).  See I.G. Ex. 5.  In the face of this record evidence, Petitioner has provided no evidence that might indicate that the charge to which she pleaded guilty  

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emanated from facts or allegations different from those set forth in the amended Bill of Information and the underlying Affidavit, which clearly implicated her in her employer’s fraudulent Medicaid billing practices.  

Indeed, even if the record evidence did not demonstrate Petitioner’s knowing involvement in her employer’s fraudulent Medicaid billing practices, the exclusion statute does not require evidence that the individual knew of the connection between their offense and a covered healthcare program.  See Lyle Kai, R. Ph., DAB No. 1979, at 7 (2005) (stating “[i]t is irrelevant whether Petitioner knew that Medicaid was being billed” for mislabeled pharmaceuticals, as “the exclusion statute does not require any knowledge on the part of a petitioner of the relationship between the offense and the program but only that the factual relationship . . . exist”) (citing Robert C. Greenwood, DAB No. 1423, at 5 (1993) (stating same)), aff’d, Kai v. Leavitt, No. 05-00514 (D. Haw. July 17, 2006); see also Timothy Baxter, DAB No. 3074, at 31 (2022) (quoting Kai at 7).  “[I]t is the scheme, and the fact that Petitioner’s conviction was based on [her] participating in that scheme, that is material, not Petitioner’s particular role in the scheme.”  Kai at 11.  Thus, even if we were to accept Petitioner’s assertion – we do not – that she neither knew of nor participated in her employer’s submission of false reimbursement claims to Louisiana Medicaid, that would not defeat the ALJ’s correct conclusion, based on the record evidence, that Petitioner’s criminal offense of knowingly treating patients as a physician assistant without a license for an employer who fraudulently billed Medicaid for those services is sufficient to establish the requisite nexus between Petitioner’s offense and the delivery of an item or service under Louisiana Medicaid.   

In summary, Petitioner’s assertion that she did not know of or participate in her employer’s submission of fraudulent claims to Louisiana Medicaid are contradicted by the clear terms of the allegations of the amended Bill of Information that directly formed the basis of her guilty plea.  Such claims also amount to collateral attacks on Petitioner’s conviction, which, as stated above, are prohibited by regulation.  See supra at 12.

III. The Board has no authority to decide Petitioner’s other arguments.

Petitioner again alleges she cooperated with prosecutors regarding a separate criminal case, but “the attorney general did not have a strong enough case to prosecute.”  RR at 1.  Petitioner also repeats her assertion that her criminal case in Louisiana lasted over two years, which Petitioner states “should be accounted.”  Id. 

To the extent that Petitioner argues that the exclusion length should be reduced based on these factors, the ALJ correctly concluded that because Petitioner’s exclusion was valid, the exclusion must last for no less than the statutory minimum five years and the ALJ had no authority to review or alter that length.  ALJ Decision at 7-8 (citing Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2)).  Petitioner does not articulate any argument challenging this conclusion by the ALJ, and on that ground we summarily 

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affirm this aspect of the ALJ Decision.  See Amber Mullins, N.P., DAB No. 2729, at 5 (2016) (“Failure to articulate at least some disagreement with the bases for the ALJ decision permits the Board to summarily affirm the ALJ’s findings of fact and conclusions of law.”).  To the extent that Petitioner’s statements may be construed as an appeal for relief founded on fairness and equity, the Board has held that ALJs and the Board have no authority to give Petitioner equitable relief.  See Hamilton, DAB No. 3061, at 25 (citing cases).

Conclusion

For the reasons stated above, we affirm the ALJ Decision.

Endnotes

¹  Section 1128 of the Act is codified at 42 U.S.C. § 1320a-7.  The current version of the Act can be found at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.  Cross-reference tables for the Act and the United States Code can be found at https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.

²  Background information is drawn from the ALJ Decision and the record before the ALJ and is not intended to substitute for the ALJ’s findings.

³  In Louisiana, “[p]hysician assistants are health care professionals qualified by academic and clinical education and licensed by the Louisiana State Board of Medical Examiners.”  La. Rev. Stat. § 37:1360.21(B).  With such a license, physician assistants may lawfully “provide health care services at the direction and under the supervision of a physician or a group of physicians approved by the board as a supervising physician.”  Id.

⁴  An “NPI” (National Provider Identifier) is “the standard unique health identifier for health care providers (including Medicare suppliers),” and each NPI is unique to the person who possesses it.  See Medicare Program Integrity Manual (MPIM), Pub. 100-08, Ch. 10, § 10.1.1, available at https://www.cms.gov/regulations-and-guidance/guidance/manuals/internet-only-manuals-ioms-items/cms019033.

⁵  The amended charge was presented in the form of the original Bill of Information (I.G. Ex. 4), but with handwritten notations added by the Assistant Attorney General to indicate the replacement of one count of Medicaid Fraud with one count of False Personation, as follows:  (1) in the first page’s caption the words “ONE COUNT: MEDICAID FRAUD La. R.S. 14:70.1” are crossed out and replaced with “amended 1 ct False Personation LA R.S. 14:112 Lauren M. Smith 10/27/2021”; and (2) under the original heading “ONE COUNT,” these words are added:  “10/27/2021 amended to 1 ct False personation LA R.S. 14:112 Lauren M. Smith.”  Id. at 1.  As we discuss below, despite notations that clearly amended the charge against Petitioner, no part of the language setting forth the factual allegations underlying the original charge are changed in any way in the document’s amended form.  Id. at 1-2.

⁶  Article 894 permits a Louisiana court to suspend imposition of a sentence for a defendant who has been convicted of a misdemeanor and instead place the defendant on supervised or unsupervised probation.  La. Code Crim. Proc. art. 894A.(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.”  Id. art. 894B.(1).

⁷  Moreover, neither the Doctor of Health Science diploma for Letatia Vance-Norris nor the NCCPA letter attesting to the “Board certified” status of Letatia Renee Vance would be “relevant and material” to the only issue before the ALJ, that is, whether the I.G. had a basis for excluding Petitioner.  Petitioner is not permitted to collaterally attack her conviction (42 C.F.R. § 1001.2007(d)), and, in any event, an advanced degree diploma and board certification do not equate to a physician assistant license.  Additionally, neither document serves to rebut the ALJ’s conclusion that Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Louisiana Medicaid program.  ALJ Decision at 6-7.