Martine Silva, DAB CR5443 (2019)

DECISION

Petitioner, Martine Silva, was a certified nursing assistant, who worked as the human resources coordinator for a healthcare services company in Providence, Rhode Island. In her capacity as resources coordinator, she conspired with others to submit false claims to the state Medicaid program. She was charged with two counts of medical assistance fraud and two counts of conspiracy and, ultimately, pled nolo contendere to two counts of filing a false document. Based on this conviction, the Inspector General (IG) has excluded her for five years from participating in Medicare, Medicaid, and all federal health-care programs, as provided for in section 1128(a)(1) of the Social Security Act (Act). Petitioner appeals the exclusion.

For the reasons discussed below, I find that the IG properly excluded Petitioner and that the statute mandates a minimum five-year exclusion.

Background

By letter dated March 29, 2019, the IG notified Petitioner Silva that she was excluded from participating in Medicare, Medicaid, and all federal health-care programs for a

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period of five 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. The letter explained that section 1128(a)(1) of the Act authorizes the exclusion. IG Ex. 1.

Petitioner timely requested review.

Each party submitted a written brief (IG Br.; P. Br.). The IG also submitted five exhibits (IG Exs. 1-5).

In the absence of any objections, I admit into evidence IG Exs. 1-5.

I instructed the parties to indicate in their briefs whether an in-person hearing would be necessary and, if so, to explain why, identify any proposed witness, and "submit the witness testimony in the form of an affidavit or written sworn declaration." Order and Schedule for Filing Briefs and Documentary Evidence at 3 (¶ 7). The IG indicates that an in-person hearing is not necessary. IG Br. at 6. Petitioner did not indicate that an in-person hearing is necessary. In any event, neither party has listed any witnesses, so an in-person hearing would serve no purpose. This matter can therefore be resolved on the written record.

Discussion

Petitioner must be excluded from program participation for a minimum of five years because she was 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).1

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must exclude an individual or entity that has been convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health-care program. See also 42 C.F.R. § 1001.101(a). When a court accepts a plea of nolo contendere (no contest), it is considered a conviction for purposes of a section 1128 exclusion. Act § 1128(i)(3); 42 C.F.R. § 1001.2.

Petitioner Silva worked as the "human resources coordinator" for a healthcare services company. She was also a certified nursing assistant in the State of Rhode Island, but was not working in that capacity. IG Ex. 4 at 2. Using her position as resources coordinator, she conspired to bill the Medicaid program for services that were not provided. IG Exs. 4, 5.  Her employer got wind of the scheme and reported it to the Medicaid Fraud Control Unit of the Rhode Island Attorney General's Office. IG Ex. 4 at 2.

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Petitioner was charged in state court with two counts of medical assistance fraud (R.I. Gen. Laws § 40-8.2-3(a)(1)(i)) and two counts of conspiracy (R.I. Gen. Laws 11-1-6). IG Ex. 2; IG Ex. 4 at 3. On December 18, 2018, she pled nolo contendere to two misdemeanor counts of filing a false document (R.I. Gen. Laws § 11-18-1). IG Ex. 2 at 1-2. On January 3, 2019, the Rhode Island Superior Court accepted her plea and sentenced her to one year in jail, suspended, one year of probation, and 40 hours of community service. IG Ex. 3. She was ordered to pay $556.80 in restitution, which she paid to the Rhode Island Executive Office of Health and Human Services, the agency that administers the state's Medicaid program. IG Ex. 2 at 3; IG Ex. 3; see R.I. Gen. Laws § 42-7.2-2(a)(6).

Petitioner's crime was thus unquestionably related to the delivery of an item or service under a state health-care program. She submitted false claims to the Medicaid program; was convicted of filing false documents; and paid restitution to the state Medicaid agency.

Petitioner nevertheless suggests that, because she was not ultimately convicted of the more serious charges of medical assistance fraud, I should disregard the facts underlying her conviction and find that it was not related to the delivery of a healthcare item or service under Medicaid. The Departmental Appeals Board has long rejected efforts to limit section 1128 review to the bare elements of the offense on which the individual was convicted. See Janet R. Constantino, DAB No. 2666 at 7-8 (2015); Timothy Wayne Hensley, DAB No. 2044 (2006); Scott D. Augustine, DAB No. 2043 (2006); Lyle Kai, R.Ph., DAB No. 1979 at 5 (2005) (holding that an offense is "related to" the delivery of a healthcare item or service, if there is "a nexus or common-sense connection" between the conduct giving rise to the offense and the delivery of a healthcare item or service), aff'd, Kai v. Leavitt, No. 05-00514 BMK (D. Haw. July 17, 2006); Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000) ("We thus see nothing in section 1128(a)(2) that requires that the necessary elements of the criminal offense must mirror the elements of the exclusion authority, nor that all statutory elements required for an exclusion must be contained in the findings or record of the state criminal court."), aff'd, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003); Berton Siegel, D.O., DAB No. 1467 at 5 (1994); Carolyn Westin, DAB No. 1381 (1993), aff'd, Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994).

Thus, Petitioner Silva's crime falls within the parameters of section 1128(a)(1), and she must be excluded.

An exclusion brought under section 1128(a)(1) must be for a minimum period of five years. Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a). Petitioner argues that, in imposing a five-year exclusion, the IG violated her due process rights. I have no authority to review Petitioner's constitutional challenges. Donna Rogers, DAB No. 2381 at 5 (2011); Susan Malady, R.N., DAB No. 1816 (2001); see also 42 C.F.R. § 1005.4(c)(1).

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Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health-care programs, and I sustain the five-year exclusion.

• 1. I make this one finding of fact/conclusion of law.