Olandis Moore, DAB CR5278 (2019)

DECISION

I sustain the Inspector General’s (IG) determination to exclude Petitioner, Olandis Moore, from participating in Medicare, Medicaid, and other federally funded health care programs for a period of at least five years.

I. Background

The IG filed a brief, a reply brief, and seven exhibits that are identified as IG Ex. 1-IG Ex. 7.  Petitioner filed a statement that I accept as his brief.  Neither party filed written direct testimony.  Therefore, I decide this case based on the parties’ written exchanges.

II. Issues, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether section 1128(a)(1) of the Social Security Act (Act) mandates Petitioner’s exclusion from participation.  There is no issue of whether the length of the exclusion imposed by the IG – a minimum of five years – is reasonable inasmuch as the

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IG excluded Petitioner for the minimum mandatory exclusion period.  Act § 1128(c)(3)(B).  In other words, if the Act requires the IG to exclude Petitioner, then the IG must exclude Petitioner for the five-year minimum period that he imposed.

B. Findings of Fact and Conclusions of Law

Section 1128(a)(1) of the Act mandates the exclusion of any individual who is convicted of a criminal offense relating to the delivery of an item or service under Medicare or a State health care program (any Medicaid program).

The evidence offered by the IG, and not rebutted by Petitioner, unequivocally proves that Petitioner was convicted of a crime falling within the reach of section 1128(a)(1).  Petitioner, a personal care attendant, pled guilty to committing fraud against Arkansas’ Medicaid program (Medicaid).  IG Ex. 3; IG Ex. 4.  Petitioner pleaded guilty to fraudulently billing Medicaid, and being reimbursed by that program, for services that a patient under Petitioner’s care was not entitled to receive.  IG Ex. 2; IG Ex. 4.Specifically, Petitioner claimed reimbursement for providing attendant care services to an individual who was hospitalized at the time that Petitioner claimed to have provided those services.  IG Ex. 2.

Petitioner’s crime consisted of a fraudulent claim that he filed with Medicaid for services for which he had no lawful basis to claim reimbursement.  It more than related to the delivery of a Medicaid item or service; it was a crime that directly victimized Medicaid based on fraudulent services.

Petitioner does not dispute that he was convicted of Medicaid fraud.  He argues that he should not be excluded because he was neither sentenced to prison nor probation for his crime.  His argument is in part factually incorrect.  Although he was not imprisoned he was sentenced to probation and to pay a fine.  IG Ex. 5; IG Ex. 6.

More importantly, the fact that Petitioner received no jail time for his conviction is irrelevant.  The IG’s authority to exclude Petitioner flows from his conviction of a crime and not from the sentence that the court imposed for that conviction.  He was convicted of a crime as “convicted” is defined at section 1128(i) of the Act, because he pleaded guilty to Medicaid fraud.  Act, § 1128(i)(3).

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The court that sentenced Petitioner allowed him to enter into a deferred adjudication program with the possibility that his conviction would be expunged upon successful completion of probation.  IG Ex. 6.  That does not affect the IG’s authority to exclude Petitioner because deferred adjudication programs such as the one entered into by Petitioner are explicitly defined by the Act to constitute convictions.  Act, § 1128(i)(4).