Chinyere Victoria Dimpka, DAB CR5067 (2018)

DECISION

The Inspector General of the United States Department of Health and Human Services (the I.G.) excluded Petitioner, Chinyere Victoria Dimpka, from participation in Medicare, Medicaid, and all other federal health care programs for five years based on her conviction for a criminal offense related to the delivery of an item or service under the Medicare or a state health care program.  Petitioner sought review of the exclusion.  For the reasons stated below, I affirm the I.G.’s exclusion determination.

I.  Procedural History

By letter dated July 31, 2017, the I.G. notified Petitioner that she was being excluded, effective 20 days from the date of the letter, from participation in Medicare, Medicaid, and all federal health programs under section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)) for the minimum statutory period of five years.  The I.G. explained he took this action based on Petitioner’s conviction in a Texas court for a criminal offense related to the delivery of an item or service under the Medicare or a state

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health care program, including the performance of management or administrative services relating to the delivery of such items or services.  I.G. Exhibit (Ex.) 1 at 1.1

On August 15, 2017, Petitioner timely requested a hearing before an administrative law judge.  I held a pre-hearing telephone conference on November 8, 2017, the substance of which is summarized in my November 13, 2017 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  See 42 C.F.R. § 1005.6.  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order at 5-6.

The I.G. filed a brief (I.G. Br.) and four exhibits (I.G. Exs. 1-4), while Petitioner filed a brief (P. Br.) with no exhibits.  The I.G. subsequently filed a reply brief (I.G. Reply).

II.  Decision on the Record

In the absence of objection from Petitioner, I admit I.G. Exs. 1 through 4. 

The I.G. does not believe an in-person hearing is necessary to decide this case.  I.G. Br. at 5.  Petitioner requested an in-person hearing to allow her to present testimony from her accountant in order to demonstrate that she was not personally involved in the business she opened, to establish she is not personally responsible for the acts which presumably resulted in her criminal conviction.  P. Br. at 2-3.  However, neither party requested cross-examination of the opposing party’s witnesses.  Therefore, a hearing is unnecessary and the matter may be decided on the written record.  See Civ. Remedies Div. Pro. § 19(d). 

III.  Issue

Whether the I.G. had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for five years under 42 U.S.C. § 1320a-7(a)(1).  See 42 C.F.R. § 1001.2007(a)(1).

IV.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an administrative hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, and the rights of both the sanctioned party and the I.G. to participate in a hearing are specified by 42 C.F.R. § 1005.3. 

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The Secretary must exclude from participation in federal health care programs “[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII of this chapter or under any State health care program.”  42 U.S.C. § 1320a-7(a)(1); see also 42 C.F.R. § 1001.101(a).

An individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  42 U.S.C. § 1320a-7(i).  The statute does not distinguish between misdemeanor and felony convictions.  There may be no collateral attack of the conviction that provides the basis of the exclusion.  42 C.F.R. § 1001.2007(d).

Section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) provides that an exclusion imposed under section 1128(a) of the Act (42 U.S.C. § 1320a-7(a)) shall be for a minimum period of five years.  The exclusion is effective twenty days from the date of the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The period of exclusion may be extended based on the presence of specified aggravating factors.  42 C.F.R. § 1001.102(b).  Mitigating factors are considered as a basis for reducing the period of exclusion only if aggravating factors justify an exclusion of longer than five years.  42 C.F.R. § 1001.102(c).

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors; the I.G. bears the burden on all other issues.  42 C.F.R. § 1005.15(b).

V.  Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis. 

A. Petitioner’s request for hearing was timely, and I have jurisdiction.

There is no dispute that Petitioner timely requested a hearing.  I therefore have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

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B. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act.

Exclusion from participation in Medicare, Medicaid, and all federal health care programs is mandated by section 1128(a)(1) of the Act where an individual has been 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); 42 C.F.R. § 1001.101(a).  The I.G. has established these elements by a preponderance of the evidence.

1. Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(1) of the Act.

Petitioner owned Diamex EMS, a provider of ambulance services that improperly billed Medicare for transport of ineligible patients.  I.G. Ex. 4 at 4.  Following a fraud investigation conducted by its Medicaid Fraud Control Unit, the Office of the Texas Attorney General indicted Petitioner on one felony count of Engaging in Organized Criminal Activity.  Id. at 5.  On November 30, 2016, Petitioner pleaded guilty to that felony offense.  I.G. Ex. 2 at 1-2. 

The Texas state court’s order of deferred adjudication is a conviction within the meaning of the Act, which considers an individual “convicted” of a criminal offense “when the individual . . . has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.”  42 U.S.C. § 1320a-7(i)(4); see also 42 C.F.R. § 1001.2.  Petitioner’s guilty plea resulted in deferred adjudication and therefore constitutes a “conviction” for a criminal offense as contemplated by 42 U.S.C. § 1320a-7(a)(1).

Petitioner concedes she was convicted of an offense for which exclusion is required, P. Br. at 2, but now appears to attack her conviction, arguing she was not directly involved in her business and was unaware of the fraudulent billing practices undertaken by her husband and the other employees of the business.  Id. at 3.  However, the Secretary’s regulations explicitly prohibit Petitioner from collaterally attacking her conviction before me.  42 C.F.R. § 1001.2007(d) (“When the exclusion is based on the existence of a criminal conviction . . . the basis of the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.”).  I therefore conclude that Petitioner was convicted of a criminal offense as contemplated by 42 U.S.C. § 1320a-7(a)(1).

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2. Petitioner’s criminal offense is related to the delivery of an item or service under Medicare or a state health care program within the meaning of section 1128(a)(1) of the Act.

The Act requires Petitioner be excluded from participation in federal programs if she was convicted of an offense relating to the delivery of an item or service under Medicare or a state health care program.  See 42 U.S.C. § 1320a-7(a)(1).  The statute requires some “nexus” or “common sense connection” between the offense of which a petitioner was convicted and the delivery of an item or service under a covered program.  See Berton Siegel, D.O., DAB No. 1467 (1994).

Petitioner asserts she was not aware of the billing practices that resulted in her conviction.  P. Br. at 3.  As I explained above, however, I cannot look behind her conviction.  See 42 C.F.R. § 1001.2007(d).  Looking instead at the facts forming the basis of the offense to which she pleaded guilty, there is no doubt Petitioner’s conviction related to the delivery of an item or service under Medicare or a state health care program.  Petitioner’s company provided ambulance transportation for Medicare beneficiaries from their residences to non-hospital treatment settings, but billed Medicare as if the transport occurred to hospitals, as Medicare did not cover the former, but only the latter.  I.G. Ex. 4 at 4.  In some instances, Petitioner’s company billed Medicare for ambulance services that never took place, or billed for individual transport of patients who were in fact transported together.  Id.

Further, Petitioner admitted in her plea that she acted in concert with other individuals to steal money from Medicare and Texas health care programs.  I.G. Ex. 2 at 1.  The Texas state court with jurisdiction over her case also ordered Petitioner to pay $107,000 in restitution to the victim of the scheme in which she participated, the Centers for Medicare & Medicaid Services.  I.G. Ex. 3 at 4.  I therefore conclude that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program as contemplated by 42 U.S.C. § 1320a-7(a)(1).

C. Petitioner must be excluded for a minimum of five years; the period of exclusion is therefore reasonable as a matter of law. 

Because I have concluded that a basis exists to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(3), Petitioner must be excluded for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  The I.G. has no discretion to impose a lesser period of exclusion, and I may not reduce the period of exclusion below five years.

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VI.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years pursuant to section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)), effective August 20, 2017.

1. Document 7a in the official case file maintained in the DAB E-File system; for clarity and simplicity, whenever possible I will cite to the exhibits attached to the parties’ respective briefs by the exhibit numbers therein, not the document numbers assigned by the E-file system.
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