Christina Marie Benson, DAB CR5258 (2019)

DECISION

Petitioner, Christina Marie Benson, was convicted of defrauding the Florida Medicaid program. She was sentenced to incarceration and required to pay restitution to the Florida Medicaid Fraud Control Unit. Now, pursuant to section 1128(a)(1) of the Social Security Act (Act),1 the Inspector General (IG) has excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs. Petitioner appeals the exclusion. For the reasons discussed below, I find that the IG properly excluded Petitioner and that a 10-year exclusion is not unreasonable.

I. Background

The documents before me do not establish the circumstances that led to Petitioner's conviction. All that is revealed by the record is that Petitioner and three co-conspirators were charged, by criminal information, with two felony counts of Medicaid provider fraud ($50,000 or more) and one felony count each of organized scheme to defraud and

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conspiracy to commit organized fraud. IG Exhibit (Ex.) 3 at 1.2 Count 1 of the information charged that:

[B]eginning on or about November 1, 2012 and continuing through March 18, 2015 in the Ninth Circuit of Florida, to wit: Orange County, Florida, the defendant, Christina Marie Benson, did knowingly make, cause to be made, or aid and abet in the making of any false statement or false representation of a material fact, by commission or omission, in any claim submitted to the Agency for Health Care Administration or its fiscal agent or a managed care plan for payment, and by which crime the Defendant received or endeavored to receive anything of value, to wit: $50,000.00 or more in United States currency or proceeds of Medicaid Claims, contrary to Florida Statute sections 409.920(2)(a)l and 409.920(2)(b)1c.

Id. at 2. On August 25, 2017, Petitioner appeared in the Circuit Court of the Ninth Judicial Circuit, in and for Orange County Florida (state court), and pled guilty to Count 1 of the information. IG Ex. 4; see also IG Ex. 9. The state court adjudicated Petitioner guilty. IG Ex. 4. The court sentenced her to imprisonment for a term of 108 months and required her to pay $174,290.38 in restitution to the Florida Office of the Attorney General, Medicaid Fraud Control Unit. IG Ex. 5 at 1; IG Ex. 6. The state court later reduced Petitioner's sentence from 108 months to 54 months of incarceration. IG Ex. 8 at 1.

By letter dated July 31, 2018, the IG notified Petitioner that she was being excluded from Medicare, Medicaid, and all federal health care programs for a period of 20 years because she had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program. IG Ex. 1 at 1. The letter explained that section 1128(a)(1) of the Act authorizes the exclusion. Id.  Petitioner timely requested review. Petitioner's hearing request advised the IG that the state court had reduced her prison sentence. Upon learning of Petitioner's reduced sentence, the IG issued an amended notice letter, dated September 10, 2018, in which he reduced Petitioner's exclusion from 20 years to 10 years. IG Ex. 2.

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I convened a telephone prehearing conference and issued an Order and Schedule for Filing Briefs and Documentary Evidence (Briefing Order). Pursuant to my Briefing Order, the IG submitted a written argument (IG Br.), a reply brief (IG Reply) and nine proposed exhibits (IG Exs. 1-9). Petitioner filed her informal brief (P. Br.) along with six proposed exhibits (P. Exs. 1-6).3 Neither Petitioner nor the IG objected to the exhibits offered by the opposing party. Therefore, in the absence of objection, I admit into evidence IG Exs. 1-9 and P. Exs. 1-6.

I directed the parties to indicate in their briefs whether an in-person hearing would be necessary and, if so, to submit the testimony of any proposed witness as “written direct testimony in the form of an affidavit or declaration." Briefing Order ¶ 7.c.ii. Neither party offered the written direct testimony of any witness. Further, the parties agree that an in-person hearing is not necessary. IG Br. at 10; P. Br. (Docket Entry 8 at 9). I therefore decide this case based on the written record.

II. Discussion

A. Petitioner must be excluded pursuant to section 1128(a)(1) of the Act because she was convicted of a criminal offense related to the delivery of an item or service under the Florida Medicaid program.4

The Act requires the Secretary of Health and Human Services (Secretary) to exclude from program participation any individual or entity that has been convicted of 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 delegated this authority to the IG. 42 C.F.R. § 1001.101(a).

1. Petitioner was convicted of a criminal offense.

Petitioner concedes that she was convicted of a criminal offense. P. Br. (Docket Entry 8 at 4). The IG's evidence demonstrates that, on August 25, 2017, the state court entered judgment, finding Petitioner guilty of Medicaid provider fraud, pursuant to her guilty plea. IG Ex. 4; see also IG Ex. 9. Accordingly, Petitioner was convicted of a criminal offense as that term is defined in subsections 1128(i)(1), (2), and (3) of the Act.

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2. The criminal offense of which Petitioner was convicted is related to the delivery of an item or service under Medicaid.

The IG argues that Petitioner's conviction for Medicaid provider fraud is related to the delivery of items or services under Medicaid within the meaning of section 1128(a)(1) of the Act. IG Br. at 4. Petitioner concedes that her conviction is one for which exclusion is required. P. Br. (Docket Entry 8 at 5). It is clear from the record that Petitioner's conviction is program‑related.

Petitioner was convicted of Medicaid provider fraud. She pled guilty to Count 1 of the criminal information, thus admitting that she made, or caused to be made, or aided and abetted in the making of a false statement or representation of a material fact in a claim submitted to the Medicaid program for payment. See IG Ex. 3 at 2; see also Fla. Stat. § 409.920(2)(a)1 (West 2013). Florida law defines a “claim" as “any communication, whether written or electronic (electronic impulse or magnetic), which is used by any person to apply for payment from the Medicaid program or its fiscal agent for each item or service purported by any person to have been provided by a person to any Medicaid recipient." Fla. Stat. § 409.901(6) (emphasis added). This definition makes clear that Petitioner's criminal conduct was related to the delivery of items or services under Medicaid. Appellate panels of the Departmental Appeals Board (DAB) have long held that the submission of false claims under Medicare or Medicaid falls within the ambit of section 1128(a)(1). See, e.g., Emannuel Adebayo Ayodele,DAB No. 2602 at 3-4 (2014); Juan de Leon, Jr.,DAB No. 2533 (2013); Jack W. Greene,DAB No. 1078 (1989), aff'd, Greene v. Sullivan, 731 F. Supp. 835 (E.D. Tenn. 1990). Therefore, I conclude that Petitioner's conviction for Medicaid provider fraud is related to the delivery of an item or service under Medicaid and that the IG was required to exclude Petitioner from participation in the Medicare program for a minimum period of five years. Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

Because Petitioner's conviction for Medicaid provider fraud is related to the delivery of items or services under Medicaid, she must be excluded for at least five years. Act § 1128(c)(3)(B). However, the IG may exclude an individual for a period longer than five years if certain aggravating factors are present. 42 C.F.R. § 1001.102(b).

B. The 10-year exclusion imposed by the IG falls within a reasonable range.

In the present case, the IG imposed a 10-year exclusion. Where, as here, the IG imposes an exclusion longer than five years based on the presence of aggravating factors, I may consider whether certain mitigating factors exist that may justify shortening the exclusion to not less than five years. 42 C.F.R. § 1001.102(c). Evidence that does not pertain to one of the aggravating or mitigating factors listed in the regulations may not be used to decide whether an exclusion of a particular length is reasonable.

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1. The IG has established three aggravating factors.

The IG argues that an exclusion of 10 years is reasonable based on the presence of three aggravating factors:

1. The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more.

2. The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.

3. The sentence imposed by the court included incarceration.

IG Br. at 6-8. Petitioner does not dispute that the cited aggravating factors are present in her case. P. Br. (Docket Entry 8 at 5). Moreover, the evidence offered by the IG proves that the factors are present. See IG Ex. 6 (restitution of $174,290.38); IG Ex. 3 at 2 (duration of the conspiracy from approximately November 1, 2012 through March 18, 2015); IG Ex. 8 at 1 (period of incarceration).

2. Petitioner failed to establish any mitigating factor.

The regulations enumerate the only mitigating factors I may consider when the period of exclusion is more than five years. 42 C.F.R. § 1001.102(c); see also Hussein Awada, M.D.,DAB No. 2788 at 6 (2017). The burden is on Petitioner to prove, by a preponderance of the evidence, that any mitigating factors exist. 42 C.F.R. §§ 1001.2007(c); 1005.15(c), (d); Briefing Order ¶ 6.c. See also Stacey R. Gale,DAB No. 1941 at 6 (2004) (“it is Petitioner's responsibility to locate and present evidence to substantiate the existence of any alleged mitigating factor in [Petitioner's] case"). Petitioner argues that a mitigating factor exists in that she cooperated with prosecutors. P. Br. (Docket Entry 8 at 6‑8).

The regulations provide that cooperation with government officials may be a mitigating factor under the following circumstances:

The individual's or entity's cooperation with Federal or State officials resulted in –

(i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

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(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

42 C.F.R. § 1001.102(c)(3). Therefore, if Petitioner produces evidence that her assistance to government officials resulted in additional convictions, investigations, or civil penalties, I may consider that factor in deciding whether the exclusion length is reasonable.

Petitioner argues that her cooperation: “assisted law enforcement in the discovery and detection of other co-conspirators involved in similar criminal acts concerning financial misconduct and misappropriation of state health care funds related to Florida Medicaid system." P. Br. (Docket Entry 8 at 6-7). Petitioner further represents that her willingness to testify as a state witness “compelled confederates to negotiate through plea bargains alleviating the . . . burden of exorbitant expenditures in trial costs." Id. at 7. In support of her argument that her cooperation led to others being convicted, Petitioner submitted plea forms documenting the guilty pleas of four individuals. P. Exs. 1-4 (Docket Entry 8 at 16-19). Petitioner additionally offered an excerpt of an on-line news article concerning three other individuals who are “facing charges of Medicaid provider fraud." P. Ex. 6 (Docket Entry 8 at 21). The article states that, if convicted, each individual could face up to 30 years in prison. Id.

Petitioner's bare allegation that her cooperation with authorities resulted in others being convicted, excluded, or investigated is insufficient to satisfy Petitioner's burden of proof. I note that Petitioner did not submit her own statement detailing her cooperation in the form of an affidavit or statement under penalty of perjury. Nor did she offer any statements from prosecutors or investigators corroborating her claims of cooperation. Moreover, even crediting Petitioner's assertion that she cooperated with prosecutors, the evidence she produced does not prove that her cooperation resulted in others being convicted.

As the IG points out in his reply, Petitioner's exhibits do not establish a nexus between any cooperation she may have provided and the conviction of other individuals or the investigation of cases other than her own. While the plea forms that Petitioner offered (P.

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Exs. 1-4) suggest that other individuals may have been convicted of criminal offenses,5 there is nothing in the record beyond Petitioner's unsworn assertion that establishes a link between the convictions, if any, and Petitioner's cooperation. For example, the record does not include any statements from prosecutors detailing Petitioner's cooperation, nor is there any evidence (such as a transcript of sentencing) proving that the judge in Petitioner's criminal case considered her cooperation in reducing the length of her sentence. For these reasons, I conclude Petitioner did not prove that her cooperation resulted in others being convicted or other cases being investigated within the meaning of 42 C.F.R. § 1001.102(c)(3)(i), (ii).

3. Based on the presence of three aggravating factors and no mitigating factors, the 10-year exclusion imposed by the IG falls within a reasonable range.

The IG has broad discretion in determining the length of an exclusion. See, e.g., Awada,DAB No. 2788 at 5. So long as the period of exclusion imposed by the IG is within a reasonable range, based on demonstrated criteria, I have no authority to change it. Joann Fletcher Cash,DAB No. 1725 at 16‑17 (2000) (quoting 57 Fed. Reg. 3298, 3321 (1992)); see also Jeremy Robinson,DAB No. 1905 at 5 (2004).

Exclusions imposed pursuant to section 1128 and its implementing regulations serve to protect the integrity of federal health care programs from untrustworthy individuals. See, e.g., Awada,DAB No. 2788 at 5. The conduct for which Petitioner was convicted and the restitution and incarceration to which she was sentenced demonstrate that she presents a significant risk to the integrity of health care programs, justifying a lengthy exclusion. See Cash,DAB No. 1725; see also Awada,DAB No. 2788. Petitioner's conviction arose from her participation in a scheme to defraud the Florida Medicaid program. Petitioner's demonstrated dishonesty in submitting false Medicaid claims resulted in financial losses more than three times greater than the minimum required to establish the aggravating factor. Additionally, her criminal conduct persisted for almost two and a half years, which similarly is significantly greater than the one‑year period required to establish the aggravating factor. Finally, Petitioner was sentenced to incarceration for 54 months (four and a half years). These aggravating factors demonstrate that Petitioner is highly untrustworthy.

Although Petitioner argued that I should consider her cooperation with prosecutors as a basis to reduce her exclusion to less than 10 years, she failed to carry her burden of proof to establish this mitigating factor. Accordingly, I do not consider it.

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Based on the record before me, I cannot find that the 10‑year exclusion is unreasonable, given that Petitioner's criminal conduct provides evidence that she cannot be trusted to deal honestly with Medicaid and other government-funded health care programs. The three aggravating factors significantly exceed the thresholds set forth in the regulations. By contrast, the 10-year exclusion imposed is only two times greater than the minimum statutory period. Under the circumstances, I cannot conclude that the exclusion imposed by the IG is excessive. I therefore find that the 10‑year exclusion falls within a reasonable range.

III. Conclusion

For the reasons explained above, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs, and I sustain the 10‑year period of exclusion.

• 1. The current version of the Social Security 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.
• 2. IG Exs. 1-8 were uploaded as a single docket entry in DAB E-File. They appear as entry 6b. IG Ex. 8 is incorrectly marked as IG Ex. 7; in other words, the IG submitted two documents marked as IG Ex. 7. The IG's Exhibit List describes IG Ex. 8 as a 4 page document titled "Sentence." That document appears at PDF pages 18-21 of Docket Entry 6b.
• 3. Docket Entry 8 in DAB E File consists of Petitioner's response to my order to show cause (PDF pages 1-3), Petitioner's Informal Brief (PDF pages 4-10), Petitioner's Exhibit List (PDF pages 11-15), and Petitioner's Exhibits (PDF pages 16-21). In this decision, I cite to the PDF page number of the document, as the pages of each document are not separately numbered.
• 4. My findings of fact and conclusions of law appear as headings in bold italic type.
• 5. I agree with the IG's observation that the plea forms do not, by themselves, establish that any of the individuals were convicted, as there is no evidence regarding the disposition of the pleas. See IG Reply at 4-5.