Christina Harris, DAB CR6012 (2022)

DECISION

The Inspector General (IG) of the U.S. Department of Health and Human Services excluded Petitioner Christina Harris from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  Petitioner challenges the exclusion.  For the reasons stated below, it is concluded that the IG had a basis for excluding Petitioner from program participation, and that the five-year mandatory exclusion period must be imposed.  The IG’s exclusion determination is affirmed.

I.   Background and Procedural History

By letter dated February 26, 2021, the IG notified Petitioner that she was being excluded from Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Act.  The IG explained that Petitioner was excluded based on:

[Petitioner’s] conviction as defined in section 1128(i) (42U.S.C. 1320a-7(i)), in the State of Iowa District Court for Woodbury County, 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.

On June 1, 2021, Petitioner requested a hearing pursuant to 42 C.F.R. § 1005.2(c).  A prehearing conference was held on July 27, 2021.  An Order Summarizing Prehearing Conference and Setting Briefing Schedule was issued on July 28, 2021.  

The IG filed her prehearing exchange on August 30, 2021, which included a short-form brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  The IG also filed a motion to dismiss for failure to file a timely appeal (MTD).  

On October 1, 2021, Petitioner filed her prehearing exchange, which included a short-form brief (P. Br.) and three proposed exhibits (P. Exs. 1-3).  Petitioner also filed, as a separate document, a response to the IG’s motion to dismiss (P. Resp.).  On October 13, 2021, the IG filed a reply brief (IG Reply). 

On October 5, 2021, I issued an order permitting Petitioner to file the written direct testimony of each proposed witness.  On October 25, 2021, Petitioner filed the written direct testimony of herself and her brother, J.H., labeled as P. Exs. 4 and 5. 

II.   Admission of Exhibits and Decision on the Record

Petitioner did not object to the IG’s proposed exhibits.  Therefore, I admit IG Exs. 1-5 into the record.  On November 1, 2021, the IG objected to P. Exs. 4 (Petitioner’s written testimony) and 5 (testimony of J.H., Petitioner’s brother/patient). 

Specifically, the IG argues that the written testimony constitutes an impermissible collateral attack on Petitioner’s underlying conviction.  To the extent that these documents can serve a purpose beyond what the IG addressed, i.e., for the purpose of illustrating the lack of relation between any criminal conviction and the delivery of an item or service, they are relevant.

The admissibility of the written testimony is distinct from the weight to be given the information presented in the documents.  Because the documents are relevant to examining the nature of Petitioner’s criminal offense, I admit them into evidence.

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The IG states that an in-person hearing is not necessary to resolve this matter.  Petitioner, however, indicated that an in-person hearing is necessary and offered the testimony of two witnesses.  IG Br. at 6; P. Br. at 4.  The IG has not requested to cross-examine any of Petitioner’s witnesses.  Therefore, an in-person hearing is unnecessary, and this matter will be decided on the written record.  See Civ. Remedies Div. P. § 19(d).

III.   Issue

The issue to be decided is whether the IG had a basis to exclude Petitioner from participation in Medicaid, Medicare, and other federal health care programs under section 1128(a)(1) of the Act.  

IV.   Jurisdiction

Jurisdiction is proper under 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a).  See also 42 U.S.C. § 1320a-7(f)(1). 

V.   Motion to Dismiss

The IG alleges that Petitioner untimely submitted her request for hearing (RFH).  An individual excluded under section 1128(a)(1) of the Act is entitled to reasonable notice and opportunity for a hearing.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2002, 1001.2007(b).  An individual may appeal an exclusion if the individual files a written request for hearing within 60 days of receiving the IG’s notice of exclusion, and an individual may be presumed to have received the notice “five (5) days after the date of such notice unless there is a reasonable showing to the contrary.”  42 C.F.R. §§ 1001.2007(b), 1005.2(c).

On February 26, 2021, the IG notified Petitioner that she was being excluded from participating in Medicare, Medicaid, and all other Federal health care programs for five years, pursuant to section 1128(a)(1) of the Act.  IG Ex. 1.  The exclusion notice advised Petitioner of her appeal rights, including that Petitioner had 60 days to file a written request for hearing before an administrative law judge (ALJ).  IG Ex. 1 at 4; see 42 C.F.R. § 1001.2002(c)(6).

Under the regulations, the presumptive date of receipt is March 3, 2021, five days after the February 26, 2021 exclusion notice. The IG argues that Petitioner’s deadline to file a RFH was May 3, 2021.  The IG moves to dismiss the appeal because Petitioner did not submit her RFH until June 1, 2021.  MTD at 3.  Petitioner argues that she has “sufficient explanation and corroborating evidence” to rebut the presumption that she received the notice on March 3, 2021.  P. Resp. at 4.  Petitioner alleges that she did not receive the notice until April 14, 2021, because she was incarcerated from December 6, 2020 until

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March 2, 2021, and again from March 11 until April 14, 2021.  P. Resp. at 1.  Petitioner argues that she filed her RFH on June 1, 2021, within 60 days of receipt.  P. Resp. at 1.  

Once the untimeliness of the hearing request is established, the only manner in which a petitioner can overcome a motion to dismiss is to make a “reasonable showing” to rebut the presumption of receipt of the notice.  Kenneth Schrager, DAB No. 2366 at 3 (2011).  The presumption of receipt may be rebutted when a petitioner’s statement denying receipt is accompanied by sufficient explanation and corroborating evidence.  Kenneth Schrager, DAB No. 2366 (2011).  There is no dispute as to whether the notice of exclusion was delivered to Petitioner’s address within five days of mailing, or by March 3, 2021.  However, Petitioner has provided evidence of her incarceration at the Pender, Nebraska county jail around the time that the notice was issued.  See P. Exs. 1 and 2.  The record here supports an adequate showing that Petitioner did not receive the notice until April 14, 2021.  Therefore, the IG’s motion to dismiss is denied and this matter will be decided on the merits of the case.  

VI.   Findings of Fact

Petitioner served as the authorized medical assistance provider to her brother, J.H.  P. Ex. 4 at 1.  As the authorized medical assistant, Petitioner provided several services including:  verbal cueing for grooming and personal hygiene, verbal cueing and supervision of basic meal preparation, verbal cueing for medication administration, housekeeping, verbal cueing and/or supervision of laundry, transportation for appointments, and bill paying.  P. Ex. 4 at 1-2.  The services performed by Petitioner did not require a nursing license.1   P. Ex. 4 at 1.  Petitioner was incarcerated in 2017 and as a result, she was unable to personally perform the services provided to her brother.  P. Ex. 4 at 2.  During that time, Petitioner’s daughter provided the services to J.H.  P. Br. at 2.  The services provided by Petitioner’s daughter were billed to the Iowa Medicaid program.  P. Br. at 2, 3. 

On December 11, 2019, a Criminal Complaint and Affidavit was filed against Petitioner in the Iowa District Court for Woodbury County (Iowa Court).  IG Ex. 3.  The complaint accused Petitioner of committing one count of Fraudulent Practice in the Third Degree in violation of Iowa Criminal Code §§ 714.8(10) and 714.11.  IG Ex. 3 at 1.  The complaint alleged that from January 5, 2017 through June 15, 2017, Petitioner “knowingly made or caused to be made false statements or misrepresentations of material facts and/or

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knowingly fails to disclose material facts in an application for payment of services or merchandise rendered or purportedly rendered as a provider for Medicaid assistance.”  IG Ex. 3 at 1.  Specifically, Petitioner submitted electronic documentation used in billing the State of Iowa for $1,188.78 in Medicaid services that she did not personally provide.  IG Ex. 3 at 1.  

On January 17, 2020, a one count trial information was filed, officially charging Petitioner with Fraudulent Practice in the Third Degree in violation of Iowa Criminal Code §§ 714.8(10) and 714.11.  IG Ex. 4.  The State of Iowa alleged that from January 5, 2017 through June 15, 2017, Petitioner “knowingly made or caused to be made false statements or misrepresentations of material facts and/or knowingly failed to disclose material facts in an application for payment of services or merchandise rendered or purportedly rendered as a provider for Medicaid assistance.”  IG Ex. 4 at 1.

On October 23, 2020, Petitioner entered into an agreement to plead guilty to Fraudulent Practice as provided in the information.  IG Ex. 2.  On December 15, 2020, the Iowa Court accepted Petitioner’s guilty plea and entered a conviction.  IG Ex. 5 at 1.  Petitioner’s sentence of incarceration was suspended, and she was placed on probation.  IG Ex. 5 at 1.  Petitioner was ordered to pay restitution of $3,099.78 as substantiated by the State of Iowa to the Iowa Department of Inspections and Appeals, Investigations Division.  IG Ex. 5 at 1. 

VII.   Analysis and Conclusions of Law

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 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 when the exclusion is mandated under section 1320a-7(a).  42 U.S.C. § 1320a-7(c)(3)(B). 

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 or a state healthcare program. 

An excluded individual may request a hearing before an ALJ to determine whether the IG had a legal basis for imposing 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). 

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Here, Petitioner challenges the basis of her conviction and her exclusion.  

A. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicaid 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 related to the delivery of a health care item or service.  Under the Act, an individual is considered convicted of a criminal offense “when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court.”  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 December 15, 2020, the Iowa Court accepted Petitioner’s guilty plea and found her convicted and guilty of Fraudulent Practice in the Third Degree.  IG. Ex. 5 at 1.  Accordingly, Petitioner has been “convicted” as defined by the regulations.  

To prove that Petitioner’s conviction was related to the delivery of a health care item or service, 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 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 was convicted of knowingly making or causing to be made false statements or misrepresentations of material facts for the payment of services or merchandise rendered as a provider for Medicaid assistance.  IG. Ex. 4. at 1.  Specifically, Petitioner billed Iowa Medicaid for services rendered by her daughter while Petitioner was incarcerated.  P. Br. at 2; P. Ex. 4 at 2.

Petitioner argues that “the underlying charge of committing fraud to receive payment from a state or federally funded medical program does not fit what occurred in this case, and what the I.G. bases their charges on.”  P. Br. at 2.  Petitioner denies “de-frauding Medicaid to charge a service.”  P. Br. at 2.  In addition, Petitioner argues that she could not have submitted false bills to the Iowa Medicaid program because during her “sudden incarceration,” her daughter “submitted her timesheet” after providing “authorized services” to Petitioner’s brother, J.H., and the services billed were “approved and necessary.”  P. Br. at 2.  

Petitioner’s argument is without merit and seemingly ignores the fact that she billed the Iowa Medicaid program for services that she was incapable of providing due to her incarceration. At the time of the underlying offense, Petitioner, admittedly using her daughter by proxy, submitted electronic documents used to bill the Iowa Medicaid program for services provided to her brother, J.H., that she did not personally provide,

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because she was incarcerated.  See IG Br. at 5.  This conduct provides more than a “minimal showing of a connection” between the offense and the delivery of a health care item or service.  Robert C. Hartnett, DAB No. 2740 at 7 n.6 (2016) (citing Scott D. Augustine, DAB No. 2043 at 5-6 (2006)).  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)).  Therefore, the IG has proven, through documentary evidence, that Petitioner’s conviction is related to the delivery of a health care item or service under a state healthcare program. 

B. Petitioner’s arguments amount to a collateral attack that is impermissible under the regulations.

Petitioner argues that she never defrauded a healthcare program because her brother’s services were pre-approved.  P. Br. at 2.  However, that argument amounts to a collateral attack, which is prohibited by the regulations: 

When the exclusion is based on the existence of a criminal conviction . . . or any other prior determination where the facts were adjudicated and a final decision was made, the basis for 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. 

42 C.F.R. § 1001.2007(d).  Despite Petitioner’s arguments, she pleaded guilty to Count 1 of the trial information.  IG Ex. 2.  In the plea, Petitioner admitted to making “false statements or misrepresentations of material facts and/or knowingly fail[ing] to disclose material facts in an application for payment of services or merchandise rendered or purportedly rendered as a provider for Medicaid assistance.”  IG Ex. 2 at 2.  Petitioner’s conviction based on her guilty plea is a “prior determination where the facts were adjudicated, and a final decision was made” within the meaning of 42 C.F.R. § 1001.2007(d).  Therefore, Petitioner may not collaterally attack the underlying facts of the conviction.

C. As a matter of law, Petitioner must be excluded for the mandatory minimum period of five years.

In appeals of mandatory exclusions, ALJs are restricted to considering whether there is a basis for exclusion, as described above, and whether the period of exclusion is reasonable.  42 C.F.R. § 1001.2007(a)(1).  However, where the IG imposes the mandatory minimum exclusion of five years, “the exclusion’s length is reasonable as a

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matter of law, and the excluded individual may request a hearing only on the issue” of whether there is a basis for exclusion.  Diane Marie Krupka, DAB No. 3020 at 2 (2020); 42 C.F.R. § 1001.2007(a)(2).  Here, the IG imposed an exclusion for the mandatory minimum period of five years. Therefore, I am not permitted to change the length of the exclusion.  I find that there is a basis for Petitioner’s exclusion; therefore, the five-year exclusion must be upheld.

VIII.   Conclusion

The IG has proven by a preponderance of the evidence that Petitioner was 1) convicted of a criminal offense; and 2) the offense was in connection with the delivery of a health care item or service.  Therefore, Petitioner shall be excluded from participating in Medicare, Medicaid, and other federal health care programs for the mandatory five-year period.  The five-year exclusion imposed by the IG is AFFIRMED.

1. In the RFH, Petitioner stated that she recently “reinstated” her nursing license with the Iowa Board of Nursing.  However, it does not appear that it is a necessary element of the crime for which Petitioner was convicted that she herself be a Medicaid provider or that she herself submit the claim to Medicaid.  Rather, the elements of the offense appear to be (1) that she knowingly made a false statement; and (2) that the false statement was used in an application for payment by a participating provider.
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