Yolanda Hamilton, M.D., DAB CR6005 (2021)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Yolanda Hamilton, M.D., from participation in Medicare, Medicaid, and all other federal health care programs for a period of 35 years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  For the reasons discussed below, I conclude that the IG has a basis to exclude Petitioner from program participation and that the 35-year exclusion is not unreasonable based on the evidence provided.  The IG’s exclusion determination is affirmed. 

I.  Background and Procedural History

By letter dated February 26, 2021, the IG excluded Petitioner, Yolanda Hamilton, M.D., from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Act for a minimum period of 35 years, effective 20 days from the date of the letter.  IG Exhibit (Ex.) 1 at 1.  The IG excluded Petitioner due to her conviction of a criminal offense in the United States District Court, Southern District of Texas, Holding Session in Houston (District Court), 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 such items or services, under any such program.  IG Ex. 1 at 1.

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The IG extended the exclusion period from the statutory minimum of five years to 35 years based on the presence of the following four aggravating factors: 

1) The acts resulting in the conviction, or similar acts, that caused, or were intended to cause, a financial loss to a government program or one or more entities of $50,000 or more, with $9,500,000 in court-ordered restitution.

2) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more, occurring from “January 2012 to August 2016.”

3) The sentence imposed by the court included incarceration, specifically, 60 months of incarceration.

4) The petitioner has been the subject of any other adverse action by any Federal, State, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion, specifically the Texas Medical Board suspended Petitioner’s license.

IG Ex. 1 at 2.  The IG did not cite any mitigating factors.  IG Ex. 1.

On April 26, 2021, Petitioner, through counsel, timely requested a hearing before an administrative law judge (ALJ) to contest the 35-year exclusion imposed by the IG.

On May 3, 2021, the Civil Remedies Division (CRD) issued an Acknowledgement Notice, my Standing Pre-Hearing Order, and the CRD Procedures (Civ. Remedies Div. P.). 

A pre-hearing conference was held on May 27, 2021.  An order summarizing the pre‑hearing conference was issued on the same date. 

On June 23, 2021, the IG filed a brief (IG Br.) along with five exhibits (IG Exs. 1-5).  On August 5, 2021, Petitioner filed an informal brief (P. Br.) along with eight proposed exhibits (P. Exs. 1-8).  On August 17, 2021, the IG objected to Petitioner’s proposed exhibits. 

On September 20, 2021, a second pre-hearing conference was held to allow the parties to discuss Petitioner’s request for an in-person hearing.  Following the September 20, 2021 pre-hearing conference, the record was re-opened and Petitioner was permitted to file written direct testimony for any proposed witnesses and a copy of a brief recently filed in the United States Court of Appeals for the Fifth Circuit (Fifth Circuit).  On October 12,

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2021, Petitioner filed an amended witness list and three exhibits (P. Exs. 9-11), which included the written direct testimony of Dr. Hamilton (P. Ex. 9).

The IG objected to Petitioner’s exhibits 1, 4, 5, 6, and 8, arguing that they are irrelevant and immaterial.  The IG also objected to Petitioner’s exhibits 2, 3, 7, 9, 10, and 11, arguing that they are irrelevant, immaterial, and constitute impermissible collateral attacks.  Finding Petitioner’s exhibits are at least minimally relevant for me to consider, the IG’s objections are overruled in part.  The governing regulations forbid an individual excluded based on a criminal conviction from collaterally attacking the basis for the conviction on either substantive or procedural grounds.  42 C.F.R. § 1001.2007(d).  Therefore, the portions of Petitioner’s exhibits 9 and 10 that contain written testimony that serve as collateral attacks on the underlying conviction are deemed irrelevant, such as the testimony of Petitioner and Petitioner’s counsel pertaining to the appeal before the Fifth Circuit that attacks the basis of Petitioner’s conviction and underlying criminal proceeding.  P. Exs. 9, 10.  Accordingly, I admit IG Exs. 1-5 and P. Exs. 1-11 into the evidentiary record, but exclude the portions of P. Exs. 9 and 10 that constitute impermissible collateral attacks on the underlying conviction.

Though Petitioner requested a hearing, the IG did not request to cross-examine Petitioner’s witnesses, nor did the IG propose any witnesses for Petitioner to cross‑examine.  P. Br. at 7.  Therefore, a hearing to receive witness testimony is not necessary and this matter will be decided on the merits of the written record.  Civ. Remedies Div. P. § 19(d).

II.  Issues

The issue to be decided is whether there is a basis for exclusion and, if so, whether the length of the exclusion that the IG has imposed is unreasonable.  42 C.F.R. § 1001.2007(a)(1).

III.  Jurisdiction

This tribunal has jurisdiction to adjudicate this case.  42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2; see also 42 U.S.C. § 1320a-7(f)(1).

IV.  Findings of Fact

Yolanda Hamilton, M.D. is a physician who was licensed to practice in the State of Texas.  She owned and operated HMS Health and Wellness Center, PLLC located in Houston, Texas.  IG Ex. 2. 

On July 6, 2017, Petitioner was indicted by a grand jury in the District Court for one count of Conspiracy to Commit Health Care Fraud, in violation of 18 U.S.C. § 1349; one

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count of Conspiracy to Solicit and Receive Healthcare Kickbacks, in violation of 18 U.S.C. § 371; and four counts of False Statements Relating to Health Care Matters, in violation of 18 U.S.C. § 1035.  IG Ex. 2 at 4-9.

The indictment alleged that from January 2012 to August 2016, Petitioner conspired with others to unlawfully enrich herself by signing false and fraudulent plans of care and other medical documents for Medicare beneficiaries; causing the submission and concealment of false and fraudulent claims to Medicare and the receipt and transfer of proceeds from the fraud; and causing the diversion of the proceeds of the fraud for the personal use and benefit of Petitioner and her co-conspirators.  IG Ex. 2 at 4. 

Specifically, Petitioner fraudulently certified and recertified patients for home health services by falsely stating in medical documents that the patients were confined to their homes and that they qualified for and received home health services under Medicare when those serves were not medically necessary, not provided, or both.  IG Ex. 2 at 5.  Petitioner submitted approximately $2.8 million in false claims to Medicare for certifying and recertifying patients for home health services.  IG Ex. 2 at 6.  Petitioner’s co‑conspirators submitted approximately $13.8 million in false claims to Medicare for home health services submitted by home health agencies where Petitioner was listed as the attending physician.  IG Ex. 2 at 6.  Petitioner received kickbacks and bribes in exchange for referring Medicare beneficiaries for home health services that were billed to, and paid by, Medicare.  IG Ex. 2 at 7.

On October 7, 2019, Petitioner was found guilty by jury of one count of Conspiracy to Commit Health Care Fraud, one count of Conspiracy to Solicit and Receive Healthcare Kickbacks, and two counts of False Statements Relating to Healthcare Matters in the District Court.  IG Ex. 3.

On September 8, 2020, the Disciplinary Panel of the Texas Medical Board issued an Order of Suspension by Matter of Law, notifying Petitioner of the suspension of her Texas medical license.  IG Ex. 5. 

On November 25, 2020, the District Court entered a judgment of conviction against Petitioner and sentenced her to 60 months of imprisonment and ordered her to pay $9.5 million in restitution to the Medicare program.  IG Ex. 4 at 1, 2, 5.

V.  Legal Authorities

The Secretary of the U.S. Department of Health and Human Services shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual or entity has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or any State health care program.  42 U.S.C. § 1320a-7(a)(1).  The Act requires a minimum exclusion period of five years

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when the exclusion is mandated under section 1320a-7(a).  42 U.S.C. § 1320a-7(c)(3)(B).  The IG has the discretion to impose an exclusion longer than the minimum period when aggravating factors are present.  42 C.F.R. § 1001.102.  Here, the IG has imposed a 35‑year exclusion. 

In exclusion cases, the IG has the burden of proving the basis for the exclusion and the existence of any aggravating factors.  42 C.F.R. § 1001.102(b).  The standard of proof is a preponderance of the evidence, which means a fact is proven if the evidence shows that it is more likely true than not true.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  In this case, the IG must prove that Petitioner was convicted of an offense related to the delivery of a health care item or service under the Medicare program. 

An excluded individual may request a hearing before an ALJ, but only on the issues of whether the IG had a basis for the exclusion and whether an exclusion longer than the required minimum period is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a), 1005.2(a).

VI.  Analysis and Conclusions of Law1

1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare program, which subjects her to a mandatory exclusion from all federal health care programs for a minimum of five years.

In order to prevail, the IG must prove that Petitioner was convicted of a criminal offense that was related to the delivery of a health care item.  Under the Act, an individual is considered to have been convicted of a criminal offense “when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to the criminal record has been expunged.”  Act § 1128(i)(3) (42 U.S.C. § 1320a-7(i)(3)); see also 42 C.F.R. § 1001.2 (paragraph (c) under the definition of “Convicted”).  On October 7, 2019, Petitioner was found guilty of one count of Conspiracy to Commit Health Care Fraud, one count of Conspiracy to Solicit and Receive Healthcare Kickbacks, and two counts of False Statements Relating to Healthcare Matters.  IG Ex. 3.  The District Court entered a judgment of conviction against Petitioner on November 25, 2020.  IG Ex. 4.  Petitioner does not dispute that she was convicted of a criminal offense.  P. Br. at 1-2.

To prove that Petitioner’s conviction was related to the delivery of a health care item, the IG must show that there is a nexus between the offense and the delivery of a health care item or service.  The Departmental Appeals Board (Board) has repeatedly held that the

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phrase “related to” within the context of section 1128(a)(1) requires only that a common‑sense nexus exist between the offense and the delivery of a health care item or service under the state healthcare program.  Summit S. Shah, M.D., DAB No. 2836 at 6 (2017) (citing cases).  In this case, Petitioner conspired with others to sign false and fraudulent plans of care and other medical documents for Medicare beneficiaries and caused the submission and concealment of false and fraudulent claims to Medicare.  IG Ex. 1 at 4.  The Board has held that “filing a false claim for payment under Medicaid, or facilitating such a filing, is ‘related to the delivery of an item or service’ under the program because a false claim is a ‘representation’ that the billing health care provider ‘has delivered a covered item or service to a program beneficiary.’”  Olandis Moore, DAB No. 2963 at 5 (2019) (citing Kimbrell Colburn, DAB No. 2683 at 5-6 (2016) (citing cases)).  The IG has proven, through documentary evidence, that Petitioner’s conviction is related to the delivery of a health care item or service under the Medicare program.  Therefore, the IG has proven, beyond a preponderance of the evidence, that Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicare program.  As a result, Petitioner must be excluded pursuant to section 1128(a)(1) of the Act.

2. Petitioner is not entitled to a stay of the exclusion.

While Petitioner does not dispute that she was convicted of a criminal offense that requires exclusion, she argues that the exclusion should not be immediately imposed because the underlying criminal conviction is currently under appeal.  P. Br. at 1-2; see P. Ex. 11.  Petitioner’s exclusion became effective on March 18, 2021, 20 days after the IG’s February 26, 2021 exclusion letter.  See IG Ex. 1 at 1. 

Section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)) defines “convicted” to include “when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending.”  See also 42 C.F.R. § 1001.2.  The regulations further provide that if Petitioner is successful on appeal and the conviction is reversed or vacated, then Petitioner’s exclusion will be withdrawn and she will be reinstated into Medicare, Medicaid, and all Federal health care programs retroactive to the effective date of exclusion.  42 C.F.R.§ 1001.3005(a)(1).  Until then, Petitioner is not entitled to defer her exclusion pending the outcome of an appeal.  Rosa Velia Serrano, DAB No. 2923 at 8 (2019). 

3. The IG has identified four aggravating factors that support an exclusion beyond the five-year minimum.

Exclusions imposed under section 1128(a)(1) carry a five-year mandatory minimum exclusion period.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)); 42 C.F.R. § 1001.102(a).  The IG may extend the five-year exclusion period based on the application of the aggravating factors listed in 42 C.F.R. § 1001.102(b).  If any of the

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aggravating factors set forth in 42 C.F.R. § 1001.102(b) justifies an exclusion longer than five years, mitigating factors listed at 42 C.F.R. § 1001.102(c) may be considered as a basis for reducing the period of exclusion to no less than five years.  The IG bears the burden of persuasion with respect to aggravating factors and Petitioner bears the burden of persuasion with respect to mitigating factors.  42 C.F.R. § 1005.15(c).  In this case, the IG has proposed a 35-year exclusion based on four aggravating factors which are addressed below.  The parties did not identify any mitigating factors.  

The IG identified the following aggravating factors as a basis for imposing a 35-year exclusion against Petitioner:  loss to a government program or other entities as a result of Petitioner’s criminal conduct was greater than $50,000; the acts resulting in Petitioner’s conviction, or similar acts, were committed over a period of one year or more; the sentence imposed included incarceration; and Petitioner has been the subject of other adverse action based on the same set of circumstances that served as the basis for the imposition of the exclusion.  IG Ex. 1 at 2. 

The District Court ordered Petitioner to pay $9,500,000 in restitution, which is 190 times the $50,000 threshold for the application of this aggravating factor.  IG Ex. 4 at 5.  Petitioner argues that the amount of restitution requested by the government is not accurate and that most of the loss was derived by the home health providers.  P. Br. at 4.   Petitioner also asserts that the amount of restitution increased considerably with her second trial.2  However, it is well-established that an amount ordered as restitution constitutes proof of the amount of financial loss to a government program.  See, e.g., Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Craig Richard Wilder, DAB No. 2416 (2011).  Although Petitioner anticipates that the amount of restitution will be reduced on appeal, that does not prevent the IG from using the current restitution amount as an aggravating factor. 

In this case, Petitioner was sentenced to 60 months of incarceration for acts that took place from January 2012 until August 2016.  IG Ex. 4 at 2.  Petitioner argues that the sentencing judge allowed her to delay reporting for incarceration pending the appeal of her conviction and asks that the IG delay in using the incarceration as an adverse action.  P. Br. at 3.  However, the delay in reporting for incarceration does not negate the sentence, nor does it prevent the IG from using it as an aggravating factor.

The evidence shows that Petitioner was subject to an adverse action taken by the Texas Medical Board which resulted in the suspension of her Texas medical license.  IG Ex. 5.  Petitioner argues that the Texas Medical Board is considering whether to probate Petitioner’s suspension pending the outcome of the appeal before the Fifth Circuit and

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therefore the license suspension should not be used as an aggravating factor at this time.  P. Br. at 2; see P. Exs 7, 11.  Despite Petitioner’s appeal, the pending request before the Texas Medical Board has no bearing on the IG’s right to use the suspension as an aggravating factor. 

The regulations provide a list of mitigating factors that may be applied to reduce an exclusion to no less than five years if aggravating factors are present.  42 C.F.R. § 1001.102(c).  Petitioner admits that “the statutory mitigating factors do not exist in this case.”  P. Br. at 6.  Instead Petitioner proffers a host of reasons why additional circumstances should be considered in lieu of mitigating factors, including her pending appeal before the Fifth Circuit, the District Court’s decision to stay her incarceration, the pending proceeding before the Texas Medical Board to probate the suspension of Petitioner’s medical license, and the need for Petitioner’s services.  P. Br. at 6.  However, only the three mitigating factors listed in the regulation may be considered in order to reduce the period of exclusion.  42 C.F.R. § 1001.102(c). 

4. Based on the four aggravating factors and lack of mitigating factors, I find that the 35-year exclusion imposed by the IG is not unreasonable.

In determining whether the length of exclusion is unreasonable, I must determine whether the length of the exclusion falls into a “reasonable range” based on the evidence before me.  Petitioner engaged in fraudulent billing for a four-year period causing $9.5 million in damages to government health care programs.  In arguing that a 35-year claim is unreasonable, Petitioner highlights her patient care and mentions that the trial judge observed that she was “less culpable than those similarly situated” and allowed her to delay reporting for the incarceration.  P. Br. at 6; P. Ex. 2 at 24-25.  Petitioner also cites other exclusion cases with varying facts in which shorter exclusions were given.  P. Br. at 5.  However, the facts of those cases are not analogous to Petitioner’s case.  In each case that Petitioner cites, the exclusion was based upon lesser periods of incarceration, smaller amounts of damages, and different aggravating factors.  Petitioner appears to focus on cases in which medical professionals compromised patient care and argues that she never put her patients at risk and should therefore receive a lesser exclusion.  Petitioner ignores the fact that her actions call into question her trustworthiness and that she caused harm by defrauding federal health care programs meant to assist patients.  Petitioner’s fraudulent actions not only threatened the fiscal integrity of the Medicare and Medicaid programs, but also harmed Medicare and Medicaid beneficiaries by wasting resources that could otherwise be used to provide beneficiaries with needed services.  Robert Hadley Gross, DAB No. 2807 at 5 (2017). 

Based on the circumstances and the lack of mitigating factors, I find that a 35-year exclusion is not unreasonable in this case, considering the presence of four aggravating factors which include a large amount of restitution, a 60-month period of incarceration,

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the duration of the fraudulent activity, and the suspension of Petitioner’s Texas medical license.

VII.  Conclusion

For the foregoing reasons, I find that the IG has proven, by a preponderance of the evidence, that Petitioner was convicted of an offense that requires exclusion under section 1128(a)(1) of the Act.  I also find that a 35-year exclusion from participation in Medicare, Medicaid, and all other federal health care programs, effective March 18, 2021, is not unreasonable based on the circumstances of this case.

1. My findings of fact and conclusions of law are set forth in italics and bold font.
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2. Petitioner’s first trial ended in a deadlocked jury.  At Petitioner’s second trial, the government presented evidence which resulted in an increased restitution amount.  P. Br. at 3-4.
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