DeMecia D. Collins, DAB CR5295 (2019)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, DeMecia Denise Collins, from participation in Medicare, Medicaid, and all other federal health care programs based on Petitioner’s conviction of a criminal offense related to the delivery of a health care item or service under Medicare or a state health care program.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner because she was convicted of submitting false claims to the California Medicaid program.  An exclusion for the minimum period of five years is mandatory pursuant to section 1128(c)(3)(B) of the Social Security Act (the “Act”) (42 U.S.C. § 1320a-7(c)(3)(B)).  I grant the IG’s motion for summary judgment because material facts are not in dispute.

I. Background

In a letter dated November 30, 2018, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act (42 U.S.C. § 1320a-7b(f)) for a minimum period of 5 years, effective 20 days from the date of the letter.  IG Exhibit (Ex.) 1 at 1.  The IG explained that Petitioner’s

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exclusion was based on a “conviction as defined in section 1128(i) (42 U.S.C. [§]1320a-7(i)), in the Superior Court of California, County of Sacramento, of a criminal offense related to the delivery of an item or service under the Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services, under any such program.”  IG Ex. 1 at 1.  The IG explained Petitioner was excluded pursuant to section 1128(a)(1) of the Act, which mandates the exclusion of any individual who is convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or any state health care program.  42 U.S.C. § 1320a-7(a)(1).  The IG informed Petitioner that the exclusion was for “the minimum statutory period of 5 years.”  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(c)(3)(B).

On January 3, 2019, pursuant to 42 C.F.R. § 1005.6, Administrative Law Judge (ALJ) Keith W. Sickendick presided over a telephonic pre-hearing conference, and issued an Order and Schedule for Filing Briefs and Documentary Evidence (Order) that same day.1 Pursuant to the January 3, 2019 Order, the IG filed a motion for summary judgment in lieu of a brief (IG Br.), along with six exhibits (IG Exs. 1-6).  Petitioner filed a letter in response to the IG’s motion for summary judgment that I will construe as a brief and response to the IG’s motion for summary judgment (P. Br.).2 The IG thereafter filed a reply brief.  In the absence of any objections, I admit the IG’s exhibits into the record.

II. Issues

1. Whether summary judgment is appropriate;

2. Whether the IG has a basis for exclusion and, if so, whether the length of the exclusion imposed by the IG is unreasonable.  42 C.F.R § 1001.2007(a)(1)-(2).

III. Jurisdiction

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

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IV. Findings of Fact, Conclusions of Law, and Analysis3

1. Summary judgment is appropriate.

The IG contends that there are no materials facts in dispute.  IG Br. at 1.  At the request of a party, an administrative law judge (ALJ) may decide an exclusion case by summary judgment “where there is no disputed issue of material fact.”  42 C.F.R. § 1005.4(b)(12).  “Matters presented to the ALJ for summary judgment will follow Rule 56 of the Federal Rules of Civil Procedure and federal case law . . . .”  Civil Remedies Division Procedures § 19(a).  As stated by the United States Supreme Court:

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).  There are no genuine issues of material fact in dispute in this case.  I must only decide whether Petitioner was convicted of a felony that requires mandatory exclusion.  As discussed below, Petitioner’s challenges to the exclusion and the length of the exclusion must be resolved against her as a matter of law.  Petitioner has not come forward with any facts to refute the evidence showing that she has a criminal conviction that mandates an exclusion.  Accordingly, summary judgment is appropriate.

2. Petitioner was convicted of an offense related to the delivery of a health care item or service under a state health care program, which is an offense, pursuant to section 1128(a)(1) of the Act, that subjects her to a mandatory exclusion from all federal health care programs for a minimum period of five years

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Section 1128(a)(1) requires a mandatory exclusion from all federal health care programs under certain conditions.4 Section 1128(a)(1) states:

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.

See 42 U.S.C. § 1320a-7(a)(1).  Likewise, and pursuant to 42 C.F.R. § 1001.101(a), the IG “will exclude” an individual who “[h]as 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.”

The IG argues that he properly excluded Petitioner from all federal health care programs based on Petitioner’s conviction for an offense that was related to the delivery of a health care item or service under Medicare or a state health care program.  IG Br. at 3-7; see IG Exs. 2, 3, 4.  I find that Petitioner was convicted of a criminal offense, for purposes of the Act, that mandates exclusion from all federal health care programs.

On April 25, 2018, the State of California filed a felony complaint charging that, during March 2017, Petitioner committed the following offenses:

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COUNT 1: Grand theft;

COUNT 2: Presenting false Medi-Cal5 claims;

COUNT 3: Presenting false claims to the State of California;

COUNT 4: Health Care Fraud.

IG Ex. 2 at 1-3.  On August 20, 2018, Petitioner entered a no contest plea to Count 2 of the felony complaint at the misdemeanor offense level.  IG Ex. 4 at 1-2.  Petitioner was ordered to pay $1,649.42 in restitution to the Health Care Deposit Fund,6 and the amount payable in restitution is the same amount as the loss to the State of California cited in Count 1 (grand larceny) of the felony complaint.  IG Exs. 2 at 1; 4 at 1-2.

Petitioner correctly argues that she was not convicted of a felony offense.  However, her misdemeanor conviction is nonetheless a conviction that is related to the delivery of an item or service under the California Medicaid program, and therefore subjects her to exclusion.  Lorna Fay Gardner, DAB No. 1733 (2000) (“Section 1128(a)(1), which pertains to criminal offenses related to the delivery of an item or service under such programs, does not draw a distinction by degree of offense.”).  Count 2 of the felony complaint (Presenting false Medi-Cal In-Home Supportive Services (IHSS) claims) charged that Petitioner “with intent to defraud, presented and caused to be presented for allowance and payment false and fraudulent claims for furnishing services under the Medi Cal Act, to wit, time sheets for In-Home Supportive Services allegedly provided to [beneficiary’s name redacted].”  IG Ex. 2 at 2.  Petitioner was convicted of a crime involving her submission of false time sheets for care provided to a Medicaid beneficiary, and as a result, she defrauded Medi-Cal of $1,649.42.  IG Exs. 2 at 2; 4 at 2 (Order that restitution is payable to the Health Care Deposit Fund); see Cal. Penal Code § 1202.4(a)(1) (“It is the intent of the legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.”).  Petitioner’s no-contest plea resulted in a criminal conviction that subjects her to exclusion pursuant to 42 U.S.C. § 1320a-7(i)(3).

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Petitioner does not dispute the evidence that her criminal conviction involved the submission of false time sheets that defrauded the Medi-Cal program.  IG Exs. 2, 3, 4.  Petitioner therefore committed a program-related crime that involved the performance of management or administrative services relating to the delivery of items or services to that program.  42 U.S.C. § 1320a-7(a)(1); 42 C.F.R. § 1001.101(a).  Congress, through enactment of the Act, determined that an individual who has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program must be excluded from federal health care programs for no less than five years, and it afforded neither the IG nor an ALJ the discretion to impose an exclusion of a shorter duration.  42 U.S.C. § 1320a-7(c)(3)(B).  I cannot shorten the length of the exclusion to a period of less than five years because I do not have authority to “[f]ind invalid or refuse to follow Federal statutes or regulations.”  42 C.F.R. § 1005.4(c)(1).  I therefore agree with the IG that an exclusion for a minimum period of five years is mandated.7

3. The effective date of Petitioner’s exclusion is December 20, 2018.

The effective date of the exclusion, December 20, 2018, is 20 days after the date of the IG’s November 30, 2018 letter and is established by regulation (42 C.F.R. § 1001.2002(b));  I am bound by that regulation.  42 C.F.R. § 1005.4(c)(1).

V. Conclusion

I grant the IG’s Motion for Summary Judgment and affirm the IG’s determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a five-year minimum period under 42 U.S.C. § 1320a‑7(a)(1).

• 1. This case was reassigned to me on March 8, 2019.
• 2. Petitioner’s resubmitted verbatim copies of IG Exs. 1, 4, and 6. I do not admit Petitioner’s duplicate submissions.
• 3. My findings of fact and conclusions of law are set forth in italics and bold font.
• 4. While there are slight differences in the wording of Section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical and I refer to them interchangeably. I further note that the Secretary of the Department of Health and Human Services has delegated to the IG the authority “to suspend or exclude certain health care practitioners and providers of health care services from participation in these programs.” 48 Fed. Reg. 21662 (May 13, 1983); see also 42 C.F.R. § 1005.1.
• 5. “Medi-Cal is California’s Medicaid program.” Medi-Cal, California Department of Health Care Services, https://www.dhcs.ca.gov/services/medi-cal/Pages/default.aspx (last visited April 9, 2019).
• 6. Certain “expenditures of state, county and federal funds for health care and administration” for the State of California are made from the Health Care Deposit Fund. Cal. Welf. & Inst. Code § 14157.
• 7. I note that Petitioner argues in her request for hearing that she “feel[s] the length of the exclusion is unreasonable” due to the fact that she is “currently employed as a Certified Nurse Assistant and this could possibly revoke [her] license.” Petitioner should carefully heed the IG’s warning in his November 30, 2018 exclusion notice, which states, in pertinent part: “The scope of this exclusion is broad and will have a significant effect on your ability to work in the health care field.” IG Ex. 1 at 1 (emphasis omitted).