Flora Gabriel Siwa, DAB CR6106 (2022)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Flora Gabriel Siwa (Petitioner) from participating in Medicare, Medicaid, and all other federal health care programs for a minimum period of five years under § 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  Petitioner requested a hearing before an administrative law judge to dispute the exclusion.  For the reasons stated below, I affirm the IG's exclusion of Petitioner from program participation for five years.

I.  Background and Procedural History

By letter dated October 29, 2021, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs under section 1128(a)(1) of the Act for a period of five years due to her conviction for a criminal offense related to the delivery of an item or service under 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.  Petitioner

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timely requested a hearing before an administrative law judge (ALJ), and Judge Tannisha D. Bell was designated to hear and decide this case.1

In an Order dated December 2, 2021, Judge Bell scheduled a prehearing conference.  Petitioner did not appear but Judge Bell rescheduled the prehearing conference because of concerns about notice and the scheduled time of the conference.  Notice to Reschedule Prehearing Conference (Dec. 23, 2021).  Petitioner did not appear at the rescheduled prehearing conference on January 28, 2022, as well.  Judge Bell then issued an Order to Show Cause for the failure to appear.  In a declaration dated February 8, 2022, Petitioner's attorney responded that she could not locate any copy of the notice rescheduling the prehearing conference and the failure to appear was inadvertent.  Judge Bell issued an Order Discharging the Order to Show Cause and held a prehearing conference on March 1, 2022, the substance of which is summarized in the March 4, 2022 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions (Summary Order).2   Among other actions, the parties were directed to file prehearing briefs articulating their respective arguments, as well as identifying witnesses and exhibits in support thereof.  Summary Order at 4-5.

The IG filed a brief (IG Br.) and six proposed exhibits (IG Exs. 1-6) on March 31, 2022.  Petitioner filed an initial prehearing exchange but it was not accepted by Judge Bell because it did not comply with the submission instructions in the Summary Order.  Petitioner refiled her prehearing exchange on May 18, 2022, which included an Informal Brief (P. Br.), one proposed exhibit (P. Ex. 1), and one proposed witness.3   The IG then submitted a reply brief (IG Reply) on May 20, 2022.

II.  Admission of Exhibits and Decision on the Record

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In the absence of any objection, IG Exs. 1-6 and P. Ex. 1 are admitted into evidence.  Petitioner indicated she believed an in-person hearing was necessary and offered her own testimony.  P. Br. at 2.  However, the IG did not request to cross examine the proposed witness.  As a result, an in-person hearing would serve no purpose and the matter may be decided on the written record.  See Civ. Remedies Div. P. § 19(d).

III.  Issues

Whether the IG has a basis to exclude Petitioner from participation in federal health care programs under section 1128(a)(1) of the Act, and if so, whether the length of the exclusion, five years, is unreasonable.  42 C.F.R. § 1001.2007.

IV.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to a hearing before an ALJ and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3.

Section 1128(a)(1) of the Act requires the Secretary to exclude an individual from participation in all federal health care programs if that individual has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1); see also 42 C.F.R. § 1001.101(a).

For purposes of exclusion, an individual is considered "convicted" of a criminal offense based on any of the following circumstances:

(1)  when a judgment of conviction has been entered against the individual . . . 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 criminal conduct has been expunged;

(2)  when there has been a finding of guilt against the individual . . . by a Federal, State, or local court;

(3)  when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court; or

(4)  when the individual . . . has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

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Act § 1128(i) (emphasis added); see also 42 C.F.R. § 1001.2 (defining "Convicted").  Five years is the minimum period of exclusion for any mandatory exclusion under section 1128(a).  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors; the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Summary Order at 3-4.

V.  Jurisdiction

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

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

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

1. There is a basis for Petitioner's exclusion pursuant to section 1128(a)(1) of the Act.

As noted above, section 1128(a)(1) of the Act requires the Secretary to exclude an individual from participation in all federal health care programs if that individual has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1); see also 42 C.F.R. § 1001.101(a).  As discussed below, the IG has established, by preponderance of the evidence, the elements necessary to exclude Petitioner.

1. Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.

In a criminal complaint filed by the Nevada Attorney General in Justice Court, Las Vegas Township, Clark County, State of Nevada on February 13, 2020, Petitioner and Senior Life Advocacy Group, LLC d/b/a F.L.O.R.A.S. Personal Care Attendant (FLORAS) were charged with "Submitting False Claims:  Medicaid Fraud," a category D felony violation of Nevada Revised Statutes (NRS) § 422.540(1)(a), (2)(a), and "Intentional Failure to Maintain Adequate Records," a gross misdemeanor violation of NRS § 422.570.4   IG Ex.

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2 at 1.  The complaint alleged that FLORAS had submitted numerous claims to Medicaid for reimbursement under the Medicaid numbers of several Medicaid recipients and "FLORAS represented that FLORAS' personnel had provided certain Personal Care Services ("PCS") to these recipients and had provided these services for certain amounts or time, when in fact the recipients were hospitalized during the stated time and under the care of hospital staff and not FLORAS' PCS Providers."  IG Ex. 2 at 2.

In a Disposition Notice and Judgment dated April 26, 2021, Petitioner pleaded nolo contendere to the lesser offense of acting without lawful authority, with restitution of $24,905.85 to be paid to the Nevada Attorney General's Office.  IG Ex. 3.  The charge of failure to maintain adequate Medicaid records for a specified time frame was dismissed.5

The IG argues that the charging document and judgment establish a conviction related to the delivery of an item or service under Medicare or a State health care program, specifically the Nevada Medicaid program.  In her brief, Petitioner initially denied that she was "convicted of a criminal offense."6   P. Br. at 1.  She argues that, under Nevada law, her plea of "nolo contendere" is not admissible in a civil proceeding, apparently for the proposition that the IG is not authorized to bring this action against her.  P. Br. at 1-2.  To support this argument, Petitioner submitted a copy of an Emergency Motion for Nunc Pro Tunc Dismissal of Case, in which she argued that she "was under the belief that pleading ‘nolo contendere' and having the corporate entity pay the required monies would protect her from personal consequences and she could go on with her life."  P. Ex. 1 at 5.  She further stated that the nolo contendere plea was "not intended as a personal admission of guilt, but was entered to allow Senior Life Advocacy Group, LLC to pay the ordered restitution and investigator fees, and end [Petitioner's] personal liability."  P. Ex. 1 at 1.7   She also stated that she is seeking to have the Las Vegas Justice Court dismiss

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her case and remove any conviction entered against her.  P. Br. at 2.  These arguments fail for several reasons.

While Petitioner argues that, under Nevada law, the nolo contendere plea cannot be used against her in this proceeding, it is necessary to note the instant exclusion proceedings are governed by federal law.  For purposes of exclusion, an individual is considered "convicted" of a criminal offense based on any of the regulatory specified circumstances, including "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) (emphasis added); see also 42 C.F.R. § 1001.2 (defining "Convicted").  Regardless of what Nevada law on this question might be, a plea of nolo contendere satisfies the federal regulatory definition of "convicted," one of the elements necessary for exclusion.

Petitioner then suggests that she somehow did not understand the consequences of the nolo contendere plea and only entered into that plea so that her limited liability company would pay the restitution and she could get on with her life.  P. Ex. 1 at 5.  However, her reasons for entering the nolo contendere plea and the fact that she is seeking to have the criminal case against her dismissed are not relevant.  She has been "convicted" under the statutory definition.

Finally, all of Petitioner's arguments relating to the nolo contendere plea are an attempt to challenge the underlying conviction.  However, 42 C.F.R. § 1001.2007(d) provides that Petitioner may not attack, and I may not review, the underlying conviction, civil judgment imposing liability, determination by another government agency, or any prior determination where the facts were determined and a final decision was made.  The underlying conviction is not reviewable and Petitioner may not collaterally attack it either on substantive or procedural grounds in this appeal.  42 C.F.R. § 1001.2007(d).

Petitioner has not argued that the conviction was not related to the delivery of an item or service under Medicare or a State health care program.  Given the charges in the criminal complaint and Disposition Notice and Judgment, it is difficult to imagine a plausible argument that it was not.  The original charge in the criminal complaint was that of "Submitting False Claims:  Medicaid Fraud."  IG Ex. 2 at 1.  Filing false Medicaid claims clearly "relates" to the delivery of an item or service under a state health care program.  Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (conviction for filing claims with the Medicaid program is "a program related offense" and "such financial misconduct is exactly what Congress sought to discourage" through imposing exclusions.).  She was convicted of the offense of acting without lawful authority, a lesser offense under the filed charge of "False claim, statement or representation with intent to defraud State plan for Medicaid."  IG Ex. 3.  As such, I find that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).

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

Because I have concluded that a basis exists to exclude Petitioner under § 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)), Petitioner must be excluded for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. § 1001.102(a).  The IG has no discretion to impose a lesser period of exclusion, and I may not reduce the period of exclusion below five years.

VII.  Conclusion

For the reasons discussed above, 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, pursuant to the provisions of § 1128(a)(1) of the Act.

1. The case was re-assigned to me on June 3, 2022.
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2. Although the prehearing conference was scheduled for March 1, 2022, at 1:00 p.m. EST, Petitioner's attorney did not appear until 1:20 p.m. ET, after being contacted by a CRD attorney.  No explanation was provided for the late appearance.  Summary Order at 1 n.1.
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3. Petitioner's May 18, 2022 submission still does not comply with the provisions of the Summary Order, including the requirement to submit written testimony from proposed witnesses in the form of an affidavit or declaration that complies with 28 U.S.C. § 1746.  Summary Order ¶ 7(c).  While P. Ex. 1 contains a declaration, it appears to be intended as a submission to the Las Vegas Justice Court as support for a motion for dismissal of the criminal case.  P. Ex. 1 at 9.  In addition, P. Ex. 1 has incorrect pagination, with two page 10s.  However, the IG has not raised any objections and there is no indication that the IG would be prejudiced by their admission.  As a result, P. Ex. 1 is accepted as submitted.
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4. FLORAS was a Nevada limited liability company owned by Petitioner.  However, since Petitioner was excluded under § 1128(a)(1) as an individual, the charges and subsequent conviction of FLORAS are not relevant to this adjudication.
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5. Subsequently, an amended information alleged that FLORAS committed the offense of "Intentional Failure to Maintain Adequate Records."  IG Ex. 4.  FLORAS, through Petitioner, pleaded guilty to that offense, but the IG explains that Petitioner's exclusion here is not based on that conviction.  IG Br. at 7; IG Ex. 5.
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6. In a confusing response, Petitioner stated in the Informal Brief that she did not disagree with the IG's statement that her conviction was related to the delivery of an item or service under the Medicare of a State health care program but then referred to "the legal implications of a plea of ‘nolo contendere.'"  P. Br. at 2.  Because she has not offered any specific argument that her conviction was not related to the delivery of an item or service under Medicare or a State health care program, I am proceeding on the basis that she is not contesting this conclusion.
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7. All citations to P. Ex. 1 will use the pagination provided by Petitioner.
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