Ann Marie Nelson, DAB CR5886 (2021)

DECISION

Respondent, the Inspector General (IG) of the U.S. Department of Health and Human Services, excluded Petitioner, Ann Marie Nelson, from participation in Medicare, Medicaid, and all other federal health care programs for five years pursuant to Section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  Petitioner challenges the exclusion before me.  For the reasons stated below, I conclude the IG had a basis for excluding her from program participation.  I affirm the IG's exclusion determination.

I.  Case Background and Procedural History

On February 26, 2021, the IG issued notice to Petitioner that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  IG Ex. 1.  The IG cited section 1128(a)(1) of the Act, which mandates exclusion when an individual is convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program.  Id.  Petitioner timely sought review and I was designated to hear and decide this case.

I conducted a pre-hearing telephone conference on March 31, 2021, the substance of which is memorialized in my April 2, 2021 Order (Summary Order), and set forth a schedule for submission of arguments and evidence by the parties.  The IG submitted a

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brief (IG Br.) and six exhibits (IG Exs. 1-6), while Petitioner submitted a brief in three parts (P. Br.) and four exhibits (P. Exs. 1-4).

Neither party objected to the opposing party's proposed exhibits.  I therefore admit IG Exs. 1-6 and P. Exs. 1-4 into evidence.

II.  A Decision on the Record is Appropriate.

Neither party indicated a hearing was necessary in this matter.  P. Br. at 1; IG Br. at 5.  I therefore issue this decision based on the record before me.  Civ. Remedies Div. P. § 19(d).

III.  Issues

The issues in this case are limited to determining if the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs.  See 42 C.F.R. § 1001.2007(a)(1).

IV.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

V. Findings of Fact, Conclusions of Law, and Analysis1

1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program requiring exclusion under 42 U.S.C. § 1320a-7(a)(1).

The IG must exclude an individual from participation in federal health care programs if the individual was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program.  42 U.S.C. § 1320a-7(a)(1).  Here, Petitioner concedes she was convicted of an offense requiring exclusion.  P. Br. at 1.  Nevertheless, because the nature and circumstances of her offense of conviction are relevant to the outcome here, I note them for the record.

On December 23, 2019, Petitioner was charged by indictment in Yavapai County, Arizona with five criminal counts, including one count of Unsworn Falsification, a Class 2 misdemeanor, in violation of A.R.S. §§ 2704(A)(1), 13-707, and 13-802, committed on or about May 13, 2009.  IG Ex. 2 at 2, 5, 7-9, 11, 13-14.  Petitioner subsequently pleaded guilty to the Unsworn Falsification charge to resolve the criminal action against her.  IG

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Exs. 3 and 4.  At the change of plea hearing, Petitioner admitted that on or around May 13, 2009, she worked "for a physician, Dr. Ham . . . who [as part of his practice would] have his employees amend readings for vision so that the readings would be seen by, in some cases, a public servant – people who worked for Medicare, and approve the benefit of the payment whereas they might not have otherwise qualified . . ."  IG Ex. 6 at 9-10.

Petitioner admitted that on at least one occasion, she in fact amended patient vision readings to permit a claim for Medicare benefits to be made.  Id.  On August 28, 2020, the Yavapai County Superior Court of Arizona (state court) entered judgment against Petitioner and sentenced her to two months' unsupervised probation.  IG Ex. 5.  Petitioner fulfilled the terms of her probation and applied to have the judgment against her set aside and vacated.  DAB E-file Dkt. No. C-21-549, Doc. No. 3.  On December 9, 2020, the state court granted her application.  Id.

Though Petitioner concedes the nature of her conviction warrants exclusion, P. Br. at 2, I note for the record that the facts to which Petitioner admitted in open court clearly establish she was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program requiring exclusion under 42 U.S.C. § 1320a-7(a)(1).  See Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (affirming conviction for filing fraudulent claims with the Medicaid program is "a program‑related offense" and "such financial misconduct is exactly what Congress sought to discourage" through imposing exclusions).

In her hearing request, Petitioner asserts that I should consider the fact that the state court ultimately set aside her conviction, which I take as an argument that she was therefore not truly convicted within the meaning of the Act.  P. Req. for Hearing.  However, the Act defines a person as "convicted" when "a judgment of conviction has been entered" by a court, regardless of whether that judgment is later "expunged."  42 U.S.C. § 1320a-7(i)(1); see also 42 C.F.R. § 1001.2 (defining "convicted" to include judgments that are "expunged or otherwise removed").

As the IG correctly observed, the state court vacated its judgment against Petitioner pursuant to A.R.S. 13.905(A), an Arizona law which permits an individual convicted of a criminal offense to apply to have judgment of guilt set aside upon fulfillment of his or her sentence and conditions of probation.  IG Br. at 3; DAB E-file Dkt. No. C-21-549, Doc. No. 3.  This law specifies that even if a conviction is set aside, that conviction "may be . . . [u]sed as a conviction if the conviction would be admissible had it not been set aside."  A.R.S. § 13-905(E)(1).

Had the state court actually overturned Petitioner's conviction and returned her to a state of presumed innocence, her argument that the IG's exclusion action lacked foundation would be well taken.  But the state court's action here is clearly more akin to a post-conviction expungement, as contemplated by the Act.  The fact that the state court

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subsequently dismissed the criminal judgment against Petitioner upon successful completion of her term of probation does not matter; Petitioner remains "convicted" within the meaning of the Act.

2. Petitioner must be excluded for a minimum of five years.

Because I have concluded that a basis exists to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(1), she must be excluded for a minimum of five years.  42 U.S.C. § 1320a-7(c)(3)(B).

VI. Conclusion

I affirm the IG's determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a period of five years.

1. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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