Maria Judith Torres, DAB CR6145 (2022)

DECISION

The Inspector General (IG) of the U.S. Department of Health and Human Services excluded Petitioner Maria Judith Torres 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 28, 2022, 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.  IG Exhibit (Ex.) 1.  The IG explained that Petitioner was excluded based on:

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[Petitioner’s] conviction (as defined in section 1128(i) of the Act), in the Commonwealth of Puerto Rico, General Court of Justice Court of First Instance, Caguas Superior Room, of 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.  See 42 U.S.C. 1320a-7(a)(1), 42 C.F.R. 1001.101(a).

IG Ex. 1 at 1.

On March 17, 2022, Petitioner, through counsel, requested a hearing pursuant to 42 C.F.R. § 1005.2(c).  A prehearing conference was held on April 26, 2022.  An Order Summarizing Pre-Hearing Conference and Setting Briefing Schedule (Summary Order) was also issued on April 26, 2022.

The IG filed her prehearing exchange on May 27, 2022, which included a short-form brief (IG Br.) and six proposed exhibits (IG Exs. 1-6).

Petitioner filed her prehearing exchange on June 23, 2022, which included a letter brief (P. Br.) and two proposed exhibits (P. Exs. 1-2).  On July 6, 2022, the IG filed a reply brief (IG Reply).

II. Admission of Exhibits and Decision on the Record

Petitioner did not object to the IG’s proposed exhibits.  Therefore, IG Exs. 1-6 are admitted into the record.  The IG did not object to Petitioner’s proposed exhibits.  Therefore, P. Exs. 1-2 are admitted into the record.

The IG states that an in-person hearing is not necessary to resolve this matter.  IG Br. at 7.  While Petitioner does not address the question of an in-person hearing in her brief, during the prehearing conference both parties stated that a hearing was not required and that the case could be decided on the written record.  Summary Order at 5 (¶ 10).  Therefore, an in-person hearing is unnecessary, and this matter will be decided on the written record. 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.

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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. Findings of Fact

Petitioner is a dental assistant and during the relevant time period was the owner of Dental Health Care Corporation in Puerto Rico (Dental Health).  IG Ex. 2 at 3.  Dental Health reached an oral agreement with general dentist Dr. G.C.E. to serve as a network provider for the managed care organization Delta Dental of Puerto Rico, Inc. (Delta Dental).  IG Ex. 2 at 3; IG Ex. 4 at 1-2.  However, Dr. G.C.E. moved outside of Puerto Rico and never began working for Dental Health.

On March 29, 2018, Dr. G.C.E. notified Delta Dental that Dental Health had billed Puerto Rico’s Medicaid program for services rendered under Dr. G.C.E.’s name from August through November 2017, even though she never worked for Dental Health.  IG Ex. 4 at 2.  Delta Dental conducted an audit in January 2019 and found records of services allegedly provided by Dr. G.C.E.  IG Ex. 4.  Those records did not contain Dr. G.C.E.’s signature.  IG Ex. 4.  The audit found that Dental Health falsified documentation and misrepresented services billed to the Puerto Rico Medicaid program, with a resulting $4,515.00 overpayment.  IG Ex. 4 at 1-3.¹

Accusations were filed against Petitioner in the Commonwealth of Puerto Rico, General Court of Justice Superior Court of Caguas (Commonwealth Court) for the following felony charges:  aggravated illegal appropriation, appropriated public funds, fraud by computer input manipulation, identity theft, ideological falsehood, and illegal practice of dental surgery committed on August 7 and December 20, 2017.  IG Ex. 5, passim.  At a November 17, 2020 hearing, Petitioner waived her right to trial by jury, and the Commonwealth Court accepted Petitioner’s guilty plea to multiple charges and ordered  $4,198.80 in restitution to the Medicaid program.  IG Ex. 3.  At a sentencing hearing on January 26, 2021, the Court pronounced Petitioner “judged and declared convict[ed] of the felonies,” ordered probation with specified conditions, and stated that “$4,198 restitution was given in court . . . .”  IG Ex. 6 at 1.

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VI. Statutory and Regulatory Framework

 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 administrative law judge (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).  An individual may not challenge the length of a mandatory five-year exclusion.  42 C.F.R. § 1001.2007(a)(2).

VII. Analysis and Conclusions of Law

1. 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  January 26, 2021, the Commonwealth Court accepted Petitioner’s guilty plea and found her convicted and guilty of multiple felony charges.  IG Ex. 6 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

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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 multiple felony charges related to payment for dental services billed to the Puerto Rico Medicaid program.  IG Ex. 5; IG Ex. 6.  Moreover, Petitioner admits that she billed Medicaid for dental services that she provided when there was no dentist in the office.  P. Br. at 2.

Petitioner argues that the length of her exclusion should be reduced below the mandatory five-year period, based on the presence of a regulatory mitigating factor concerning the amount of financial loss to the health care program.  P. Br. at 3 (citing 42 C.F.R. § 1001.102(c)(1)).  Petitioner further argues that she was under significant duress during the period at issue, she admitted her guilt and made restitution, and she is the “main financial support of her family.”  P. Br. at 3.

It is clear that Petitioner billed for dental services that she provided to patients, although there was no dentist in the office.  IG Ex. 2 at 4.  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 “[f]iling 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.

2. 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 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).  The IG has proven that there is a basis for an exclusion against the Petitioner.  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.  The  five-year exclusion must be upheld.

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3. Petitioner’s arguments amount to a request for equitable relief that is prohibited by the regulations

Petitioner first argues for a reduction in her five-year exclusion, in part because she was under duress and serves as the main financial support for her family.  P. Br. at 1, 3.  To the extent that Petitioner argues that interests of justice, fairness, and equity dictate a different result in her case, even if I were to agree with her position, I am unable to grant equitable relief in these proceedings.  U.S. Ultrasound, DAB No. 2302 at 8 (2010).  As noted above, I am bound to follow the Act and regulations.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).  As the Board has made clear: 

The regulations governing this matter expressly preclude the ALJ (and hence the Board in its review of the ALJ Decision) from finding “invalid or refusing to follow Federal statutes or regulations,” including the five-year minimum period for a mandatory exclusion pursuant to [section 1128(a)(1)] of the Act.  42 C.F.R. § 1005.4(c)(1).

W. Scott Harkonen, M.D., DAB No. 2485 at 22 (2012), aff’d, Harkonen v. Sebelius, 2013 WL 5734918 (N.D. Cal. 2013).

Petitioner next argues for a reduction in the five-year mandatory exclusion period, based on the presence of a mitigating factor concerning the amount of financial loss to the health care program.  P. Br. at 3 (citing 42 C.F.R. § 1001.102(c)(1)).  However, the regulations make clear that “mitigating factors [may] be considered as a basis for reducing the period of exclusion to no less than 5 years” only when “any of the aggravating factors . . . justifies an exclusion longer than 5 years . . . .”  42 C.F.R. § 1001.102(c) (emphasis added).  In this case, the IG did not consider any aggravating factors to lengthen Petitioner’s exclusion beyond the mandatory minimum five-year period.  I am thus unable to consider any mitigating factors to reduce the exclusion period below the mandated five-year period, which is the exclusion before me.  IG Reply, passim.  In sum, I am without authority to grant the relief that Petitioner requests.

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VII. 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.

Endnotes

¹  In contrast to the amount cited in the investigation report, the IG Brief and a court memorandum (hearing date November 17, 2020) identify the amount at issue as $4,198.00.  IG Br. at 2; IG Ex. 3 at 2.  The discrepancy in amounts identified in the investigation report and in the IG Brief and court memorandum is not material to this decision.