Mariam Hakopyan, DAB CR5526 (2020)

DECISION

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

I. Background

The IG filed a brief (IG brief), a reply brief (IG reply), plus four proposed exhibits that are identified as IG Ex. 1-IG Ex. 4. Petitioner filed a brief (Petitioner’s brief), a reply to the IG reply (Petitioner’s reply), and two proposed exhibits that are labeled as “Exhibit A” and “Exhibit B.” I receive the parties’ proposed exhibits into the record.

II. Issues, Findings of Fact and Conclusions of Law

A.   Issue

The issue is whether Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(1) of the Social Security Act (Act).

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B.   Findings of Fact and Conclusions of Law

There are no disputed facts.  Petitioner pled nolo contendere in a California State court to one count of presenting false Medi-Cal claims, a crime under California law.  IG Ex. 4; see IG Ex. 2.  I take notice that Medi-Cal is California’s state Medicaid program.  The court in which she entered her plea accepted it.  IG Ex. 4.

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 Medicaid program.  A conviction for presenting a false Medicare or Medicaid reimbursement claim plainly falls within the ambit of section 1128(a)(1).  A false Medicare or Medicaid reimbursement claim is an attempted theft from one of these programs and, for that reason, relates directly to Medicare or Medicaid items or services. 

An individual is “convicted” of a crime if that person offers either a plea of guilty or nolo contendere that a court accepts or where it enters a judgment of conviction against that individual.  Act § 1128(i)(1), (3); 42 C.F.R. § 1001.2.

Here, the undisputed facts plainly establish a basis for Petitioner’s exclusion pursuant to section 1128(a)(1).  She was convicted of a crime, having pled nolo contendere to the charge, and the court having accepted that plea.  The crime related to the delivery of a Medicaid item or service, consisting of filing a false claim for Medi-Cal reimbursement, a crime under California State law. 

Petitioner advances several arguments to challenge the IG’s determination to exclude her.  I find these arguments to be without merit.

First and foremost, Petitioner argues that she was not “convicted” of a crime.  She asserts that her plea was conditional in the sense that she was allowed to withdraw it with court approval.  IG Ex. 3.  Petitioner avers that she successfully completed the terms of her sentence and withdrew her plea.  That, according to Petitioner, erased her conviction and eliminated any basis for the IG to exclude her.  Petitioner’s brief at 2, 4; see P. Ex. B. 

Petitioner remains “convicted” of a crime for purposes of section 1128(a)(1) even though she subsequently withdrew her nolo contendere plea.  Subsequent expungement of a plea does not erase a conviction as is defined by section 1128(i) of the Act.  Act § 1128(i)(1). The law is explicit in stating that expungement of a conviction under State law does not eliminate a basis for exclusion.  Id.  Once a conviction is entered in a State court, it is the federal definition of “convicted” that determines whether an exclusion must be imposed.  Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994).

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Petitioner argues that, even if she was convicted of a crime, it was not a crime that falls within the definition of section 1128(a)(1) of the Act. Petitioner’s brief at 6; Petitioner’s reply at 2. She asserts that she was a program director at a rehabilitation facility and acted as an administrator of records and “did not represent or participate in the delivery of services or preparation of billing for services.” Petitioner’s reply at 2. According to Petitioner, that facility did not provide medical care to patients. Therefore, she contends, her conviction was unrelated to the delivery of a Medicaid item or service. Petitioner’s brief at 6; Petitioner’s reply at 2.

However, the fact is that Petitioner was convicted explicitly of presenting a false Medicaid claim, whatever were the types of services that her employer may have provided. IG Ex. 4; see IG Ex. 2. The authority to exclude Petitioner springs directly from that conviction. Indeed, at this juncture, the conviction is definitive. It is explicit – Petitioner was convicted of presenting a false Medicaid claim. That conviction, in and of itself, triggers the mandatory exclusion requirement of section 1128(a)(1).

Petitioner argues that she was denied due process because the IG did not exclude her immediately upon her conviction but did so only about a year and one-half after Petitioner entered her plea of nolo contendere. I do not have authority to address this argument. There is nothing in the Act nor in the implementing regulations that permits me to review the timing of the IG’s exclusion determination where the IG has a legal basis to exclude. See Act § 1128; 42 C.F.R. Part 1001; James W. Marshall, Jr., D.O., DAB No. 2796 (2017), summarily aff’g James W. Marshall, Jr., D.O., ALJ Ruling No. 2017-9 (2017); Kris Durschmidt, DAB No. 2345 at 3 (2010).

Petitioner contends additionally that the IG should have considered excluding her under the permissive exclusion provisions of section 1128(b)(1) of the Act, rather than pursuant to the mandatory exclusion requirement of section 1128(a)(1). Section 1128(b)(1) permits the IG to exclude, for among other things, an individual who is convicted of a misdemeanor relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service. Act § 1128(b)(1)(A)(i).

Petitioner’s argument notwithstanding, section 1128(b)(1) does not carve out exceptions to section 1128(a)(1) of the Act. Section 1128(a)(1) explicitly defines what falls within its reach, and Petitioner’s conviction falls squarely within the reach of that section. Section 1128(b)(1) addresses those convictions that are not explicitly covered by section 1128(a)(1), including misdemeanor convictions of crimes related to health care items or services other than Medicare or Medicaid items or services.

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Finally, I note that the length of Petitioner’s exclusion – at least five years – is not at issue in this case. The Act mandates an exclusion of at least five years of any individual who is convicted of a section 1128(a)(1) crime. Act § 1128(c)(3)(B).