Alicia Camille Latty, L.C.S.W., DAB CR5442 (2019)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Alicia Camille Latty, L.C.S.W. (Ms. Latty or Petitioner) from participating in Medicare, Medicaid, and all other federal health care programs for a minimum period of five years under 42 U.S.C. § 1320a-7(a)(1). Ms. Latty requested a hearing before an administrative law judge to dispute the exclusion. For the reasons below, I affirm the IG's exclusion of Ms. Latty from program participation for five years.

I. Background

In an October 31, 2018 letter, the IG notified Ms. Latty that she was being excluded from Medicare, Medicaid, and all federal health care programs under 42 U.S.C. § 1320a-7(a)(1) for a period of five years. The IG based the exclusion on Ms. Latty's conviction, in the Circuit Court of the Nineteenth Judicial Circuit, State of Florida, 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 Exhibit (Ex.) 1 at 1.

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Petitioner timely requested a hearing. I was assigned to hear and decide this case. On January 17, 2019, I issued an Acknowledgment, Prehearing Order, and Notice of Prehearing Conference (Prehearing Order).  On March 13, 2019, I held a telephonic prehearing conference, the substance of which is summarized in my March 14, 2019 Prehearing Conference Summary Order (Summary Order).

In compliance with the Prehearing Order and the Summary Order, the IG filed a brief, which included a motion for summary judgment and eight exhibits (IG Exs. 1-8).  After requesting and receiving an extension of time, Petitioner's counsel withdrew from representation in this case. I provided Ms. Latty with time to either find new counsel or file a prehearing exchange herself. After an additional extension, Ms. Latty eventually retained new counsel, who filed a brief on her behalf. (P. Br.).  The IG filed a reply brief.

II. Decision on the Record

In the absence of objection, I admit IG Exs. 1-8 into the record. Prehearing Order ¶ 11; Civil Remedies Division Procedures (CRDP) § 14(e); see also 42 C.F.R. § 1005.8(c); P. Br. at 2 n.1 (indicating Petitioner's reliance on IG Exs. 2-6 in this case).

Both parties indicated that they do not have any witness testimony to present and, consequently, an in-person hearing in this case is unnecessary. IG Br. at 6; P. Br. at 2. Therefore, I issue this decision on the basis of the written record. Prehearing Order ¶ 15; CRDP § 19(d).

III. Issue

Whether the IG has a basis for excluding 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)-(2).

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

My findings of fact and conclusions of law are set forth below in bold and italics.

The Secretary of Health and Human Services must exclude an individual from participation in Medicare, Medicaid, and all other federally-funded health care programs if that individual:

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.

42 U.S.C. § 1320a-7(a)(1).

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The two elements necessary in this case to support exclusion are: (1) the individual to be excluded must have been convicted of a criminal offense; and (2) the offense must have been related to the delivery of an item or service under Title XVIII of the Social Security Act (Medicare) or a State health care program. 42 U.S.C. § 1320a-7(a)(1).

A. Petitioner pleaded no contest (nolo contendere) to the charge of Third Degree Grand Theft; however, the Circuit Court for the Nineteenth Judicial Circuit (Circuit Court), State of Florida, withheld adjudication of guilt, but sentenced Petitioner to three years of probation and ordered Petitioner to pay $1,446.40 in restitution to Florida Medicaid.

On September 27, 2017, a Law Enforcement Investigator with the Florida Attorney General's Medicaid Fraud Control Unit submitted an Affidavit in Support of Arrest Warrant to the Circuit Court. IG Ex. 8 at 3-7. The Affidavit alleged that Petitioner, a Licensed Mental Health Counselor, submitted fraudulent patient progress notes that were used as the basis for seeking reimbursement from the Florida Medicaid program. Specifically, the Affidavit alleged that Petitioner submitted progress notes showing that services had been provided on dates and at times when no services had been provided. IG Ex. 8 at 5. On September 27, 2017, the Circuit Court issued an arrest warrant for Petitioner. IG Ex. 8 at 1-2.

On November 29, 2017, an Assistant State Attorney filed an Information with the Circuit Court charging Petitioner with two crimes.

COUNT 1: On or between July 1, 2016 and December 22, 2016, [Petitioner] did knowingly make, cause to be made, or aid and abet in the making of any false statement or false representation of a material fact, by commission or omission, in any claim submitted to the Agency for Health Care Administration or its fiscal agent for payment, in violation of Florida Statute 409.920(2)(a).

COUNT 2: On or between July 1, 2016 and December 22, 2016, [Petitioner] did unlawfully and knowingly obtain or use or endeavored to obtain or use the property of another, to-wit: monies, the property of State of Florida Medicaid Fund as owner or custodian, of value of $300 or more, with intent to either permanently or temporarily deprive the true owner of a right to the property or a benefit therefrom or to appropriate the property to the use of the taker or to the use of any person not entitled thereto, in violation of Florida Statute 812.014.

IG Ex. 7.

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On July 20, 2018, Petitioner signed a Felony Plea Form in which she pleaded no contest to Count 2 of the Information. IG Ex. 2. Also on July 20, 2018, the Circuit Court accepted Petitioner's plea, entered judgment against Petitioner as to Count 2 of the Information, and sentenced Petitioner to 36 months of probation, but ordered that adjudication of guilt be withheld. IG Ex. 2 at 7; IG Ex. 3 at 1, 3; IG Ex. 4 at 1. The Circuit Court also ordered Petitioner to pay restitution to Florida Medicaid in the amount of $1,446.40. IG Ex. 4 at 2; IG Ex. 5.

B. Petitioner was convicted of a criminal offense for the purposes of 42 U.S.C. § 1320a-7(a)(1).

Petitioner argues that she made a plea of nolo contendere and that "[a] plea of nolo contend[e]re and a withhold[ing] of adjudication does not amount to a conviction." P. Br. at 2.

Under 42 U.S.C. § 1320a-7(i), 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, regardless of 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 nolo contendere is accepted by a court; or (4) the individual has entered into a first offender program, deferred adjudication program, or other arrangement where a judgment of conviction is withheld. In the present case, Petitioner is considered convicted based on two of the four ways that the statute defines "convicted."

The record shows that Petitioner pleaded nolo contendere and the Circuit ordered that "[t]he plea is accepted." IG Ex. 2 at 1-2, 7. Thus, I conclude that Petitioner was "convicted" under the definition of that term in 42 U.S.C. § 1320a-7(i)(3). Gupton v. Leavitt, 575 F. Supp. 2d. 874, 880-82 (E.D. Tenn. 2008).

Furthermore, the Circuit Court found good cause to withhold adjudication of Petitioner's guilt, while still sentencing Petitioner to 36 months of probation. IG Ex. 3 at 1, 3; IG Ex. 4 at 1. Significantly, the Circuit Court ordered that "[i]f you violate any of the conditions of your probation, you may be arrested and the court may revoke your probation and adjudicate you guilty if adjudication of guilt was withheld, and may impose any sentence it might have imposed before placing you on probation . . . ." IG Ex. 4 at 3. This matter fits squarely into the definition of "convicted" under 42 U.S.C. § 1320a-7(i)(4). Travers v. Shalala, 20 F.3d 993, 997 (9th Cir. 1994) ("In a deferred adjudication, on the other hand, if the defendant does not live up to the terms of his agreement, he is not free to set aside his plea or proceed to trial—the court may simply enter a judgment of conviction.  Under those circumstances, the entry of a judgment is a mere formality because the defendant has irrevocably committed himself to a plea of guilty or no contest which cannot be unilaterally withdrawn."); Rudman v. Leavitt, 578 F. Supp. 2d 812, 815 (D. Md. 2008).

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C. Petitioner was convicted of a criminal offense that related to the delivery of an item or service under a state health care program (i.e., Medicaid).

An individual must be excluded from participation in any federal health care program if the individual was 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. 42 U.S.C. § 1320a-7(a)(1). A state health care program includes a state's Medicaid program. 42 U.S.C. § 1320a-7(h); 42 C.F.R. § 1000.10 (definition of State health care program). The term "related to" simply means that there must be a nexus or common sense connection. See Quayum v. U.S. Dep't of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase "relating to" in another part of section 1320a-7 as "deliberately expansive words," "the ordinary meaning of [which] is a broad one," and one that is not subject to "crabbed and formalistic interpretation") (internal quotation marks omitted).

Petitioner argues that her conviction for grand theft was not related to Medicaid because a separate charge of making false statements to Medicaid was dismissed. P. Br. at 2.  However, I conclude that there is an obvious nexus between Petitioner's conviction and the delivery of an item or service under Medicaid. Count 2 of the Information, to which Petitioner pleaded nolo contendere, expressly alleged that Petitioner's grand theft was of property belonging to the Florida Medicaid Fund. IG Ex. 7; see Kahn v. Inspector General of the United States Dep't of Health & Human Servs., 848 F. Supp. 432, 434, 436 (S.D.N.Y. 1994) (concluding that a podiatrist's conviction for attempted grand larceny was program related for purposes of an exclusion because it was related to the filing of false Medicaid claims). Further, the Circuit Court ordered restitution to be paid to "Florida Medicaid," showing a direct connection between Petitioner's conviction and improper claims filed with the Medicaid program. IG Ex. 4 at 2; IG Ex. 5.

Petitioner also asserts that she is innocent of any crime, did not submit any documentation that caused false Medicaid claims to be filed, was deprived of adequate time to defend herself in her criminal case, had insufficient resources to pay for continued legal representation, and pleaded nolo contendere on advice of counsel. P. Br. at 3. However, I cannot consider any of those assertions because Petitioner cannot use this proceeding to re-litigate her criminal case. Travers, 20 F.3d at 998; 42 C.F.R. § 1001.2007(d).

D. Petitioner is subject to mandatory exclusion under 42 U.S.C. § 1320a-7(a)(1); therefore, Petitioner must be excluded for the statutory minimum of five years under 42 U.S.C. § 1320a-7(c)(3)(B).

Based on the foregoing, Petitioner is subject to mandatory exclusion under 42 U.S.C. § 1320a-7(a)(1). As a result, Petitioner must be excluded for a minimum period of five years. 42 U.S.C. § 1320a-7(c)(3)(B).

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Petitioner asserts that her case involves mitigating circumstances and that her exclusion should be reduced to three years because the IG should only have excluded her based on a permissive exclusion. P. Br. at 3. However, once an individual meets the criteria for a mandatory exclusion, the IG must impose a minimum of a five-year exclusion. Travers, 20 F.3d at 998.

V. Conclusion

For the foregoing reasons, I affirm the IG's determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for the statutory five-year minimum period. 42 U.S.C. § 1320a-7(a)(1), (c)(3)(B).