Ann R. Karvelas, DAB CR5392 (2019)

DECISION

I sustain the Inspector General’s (IG) determination to exclude Petitioner, Ann R. Karvelas, from participating in Medicare, Medicaid, and other federally funded health care programs for a minimum of five years.

I. Background

Petitioner requested a hearing to challenge the IG’s exclusion determination. The IG submitted a brief in support of her determination, and six exhibits identified as IG Ex. 1‑IG Ex. 6. Petitioner filed a brief in opposition, and a single exhibit identified as P. Ex. 1. Neither party proffered testimony.

I receive the parties’ exhibits into the record. I decide this case based on the parties’ written submissions.

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II. Issue, Findings of Fact, and Conclusions of Law

A. Issue

The issue in this case is whether the law mandates that Petitioner be excluded for a period of at least five years.

B. Findings of Fact and Conclusions of Law

The IG excluded Petitioner pursuant to the mandatory exclusion requirements of section 1128(a)(1) of the Social Security Act (Act). This section compels exclusion of any individual who is convicted of a crime related to the delivery of an item or service pursuant to Medicare or a state Medicaid program. The IG excluded Petitioner for a minimum period of five years. The Act mandates exclusion for at least that period of time for any individual convicted of a section 1128(a)(1) crime. Act § 1128(c)(3)(B).

The facts are not in dispute. On December 12, 2018, Petitioner, a nurse, pled guilty in a Wisconsin state court to three counts of theft. IG Ex. 2-IG Ex. 4. As a consequence of her guilty plea the Wisconsin court sentenced Petitioner to two years’ probation, mandatory community service, and a fine plus court costs. 

Petitioner’s crimes consisted of filing false claims with Wisconsin’s Medicaid program for nursing services that she was alleged to have provided to Medicaid recipients. IG Ex. 2 at 6; IG Ex. 5; IG Ex. 6 at 6-10. These facts establish all of the elements of a section 1128(a)(1) offense. Thus, exclusion of Petitioner for a minimum of five years is mandatory. Petitioner’s guilty plea to state criminal charges constitutes conviction of a crime. Act § 1128(i)(3). Her crimes plainly relate to Medicaid items or services. Indeed, the essence of Petitioner’s crimes consists of her theft from Wisconsin’s Medicaid program predicated on her false claims for nursing services that she was alleged to have rendered to Medicaid recipients.

Petitioner appears to make two arguments in opposition to the IG’s determination. First, she seems to challenge her conviction, asserting that a “criminal warrant” was filed against her “while never having any legal dealings.” Petitioner’s brief at 2. Petitioner’s assertion is not entirely clear but, if it constitutes a challenge to the state criminal proceedings, it is an argument that I have no authority to hear and decide. The proper forum for Petitioner to raise such a challenge is in Wisconsin. She may not collaterally attack her conviction here. 42 C.F.R. § 1001.2007(d).

Second, Petitioner contests the fairness of the exclusion determination. She argues that she completed her sentence, including a requirement that she perform 250 hours of

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community service. Petitioner’s brief at 2. She argues that she should not be subject to a federal exclusion inasmuch as she has successfully completed her sentence.

I have no authority to consider Petitioner’s fairness argument. This is not a case in which I may weigh the fairness of the IG’s determination. The exclusion determination in this case is mandatory, allowing neither the IG nor me discretion to waive it or reduce it premised on fairness considerations.