Mariamma Viju, DAB CR5137 (2018)

DECISION

Petitioner, Mariamma Viju, was a registered nurse, licensed in Texas.  She worked in a major hospital and was also a part-owner and director of nursing for a home health agency.  She pled guilty to one felony count of wrongfully disclosing individually identifiable health information.  Based on this conviction, the Inspector General (IG) has excluded her for ten years from participating in Medicare, Medicaid, and all federal health care programs, as provided for in section 1128(a)(1) of the Social Security Act (Act).  Petitioner appeals the exclusion.

For the reasons discussed below, I find that the IG properly excluded Petitioner and that the ten-year exclusion falls within a reasonable range.

Background

By letter dated December 29, 2017, the IG notified Petitioner Viju that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of ten years because she had been convicted of a criminal offense related to the

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delivery of an item or service under Medicare or a state health care program.  The letter explained that section 1128(a)(1) of the Act authorizes the exclusion.  IG Exhibit (Ex.) 1.

Petitioner timely requested review.

Each party submitted a written brief (IG Br.; P. Br.).  The IG also submitted nine exhibits (IG Exs. 1-9) and a reply brief (IG Reply).  Petitioner submitted seven exhibits (P. Exs. 1-7).

In the absence of any objections, I admit into evidence IG Exs. 1-9 and P. Exs. 1-7.

I instructed the parties to indicate in their briefs whether an in-person hearing would be necessary and, if so, to explain why; identify any proposed witness; and “submit witness testimony in the form of an affidavit or a written sworn declaration.”  Order and Schedule for Filing Briefs and Documentary Evidence at 4 (¶ 7).  The IG indicates that an in-person hearing is not necessary.  IG Br. at 7.  Petitioner, however, asks to present the testimony of her husband and co-conspirator, Viju Mathew.  P. Br. at 7.  She does not directly explain why his testimony would be necessary but submits a letter from him.  P.  Ex. 4.  The letter shows that Mr. Viju Mathew’s testimony would not be relevant.  He asserts his wife’s innocence, admits his own guilt, and asks that his exclusion be extended to life and his wife’s exclusion be revoked.

The IG objects to my convening an in-person hearing for the purpose of obtaining this witness’s testimony because it constitutes a collateral attack on Petitioner’s conviction.  IG Reply at 4.  I agree.  As discussed below, the criminal court has determined that Petitioner herself conspired to steal individually identifiable health information, intending to use that information for personal gain, a felonious act.  Because I may not look behind those findings, the testimony Petitioner proposes would be irrelevant.  I must exclude irrelevant or immaterial evidence.  42 C.F.R. §§ 1005.17(c), 1001.2007(d); Janet R. Constantino, DAB No. 2666 at 7-8 (2015); Roy Cosby Stark, DAB No. 1746 (2000); George Iturralde, M.D., DAB No. 1374 (1992).

Issues

The issues before me are:  whether the IG is authorized to exclude Petitioner from program participation, and whether the length of the exclusion (ten years) is reasonable.  42 C.F.R. § 1001.2007.

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Discussion

1.  Petitioner must be excluded from program participation for a minimum of five years because she 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).1

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must exclude an individual or entity that has been convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  See also 42 C.F.R. § 1001.101(a).

Petitioner Viju was a registered nurse and the director of nursing for Dallas Home Health Care, Inc., a home health agency that she and her husband owned.  IG Ex. 2 at 9 (¶ 1); IG Ex. 4 at 4-5 (¶¶ 15, 16).  At the same time, she worked as a nurse at Baylor University Medical Center.  While there, she purposefully took patient information, intending to use it to benefit her home health agency, violating federal law.  IG Ex. 2 at 9-10 (¶¶ 2, 4, 5).  On June 3, 2015, she was indicted on a seven-count indictment:  one count of conspiracy to commit health care fraud, five counts of health care fraud, and one count of wrongful disclosure of individually identifiable health information.  IG Ex. 4.  She pled guilty to wrongful disclosure of individually identifiable health information.  IG Exs. 2, 3.  On July 31, 2017, the district court accepted her plea and entered judgment against her.  IG Ex. 3.  The court sentenced her to 30 months imprisonment followed by two years of supervised release.  IG Ex. 3 at 2, 3.  Jointly and severally with her husband, Viju Mathew, she was ordered to pay $277,957.89 in restitution.  IG Ex. 3 at 5, 6.

As part of her plea agreement, Petitioner effectively conceded that her crime was program-related.  She explicitly acknowledged that she would be excluded from participation in federal health care programs and agreed “to complete and execute all necessary documents . . . to effectuate this exclusion . . . .”  IG Ex. 2 at 4 (¶ 8).2

But even without that admission, Petitioner’s crime was unquestionably related to the delivery of an item or service under Medicare or a state healthcare program.  The Departmental Appeals Board has long rejected efforts to limit section 1128 review to the

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bare elements of the offense on which the individual was convicted.  See Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003) (“We thus see nothing in section 1128(a)(2) that requires that the necessary element of the criminal offense must mirror the elements of the exclusion authority, nor that all statutory elements required for an exclusion must be contained in the findings or record of the state criminal court.”); Timothy Wayne Hensley, DAB No. 2044 (2006); Scott D. Augustine, DAB No. 2043 (2006); Lyle Kai, R.Ph., DAB No. 1979 at 5 (2005), aff’d, Kai v. Leavitt, No. 05-00514 BMK (D. Haw. July 17, 2006) (holding that an offense is “related to” the delivery of a healthcare item or service, if there is “a nexus or common-sense connection” between the conduct giving rise to the offense and the delivery of a healthcare item or service); Berton Siegel, D.O., DAB No 1467 at 5 (1994); Carolyn Westin, DAB No. 1381 (1993), aff’d, Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994).

And this record is replete with evidence establishing that Petitioner’s “wrongful disclosure of individually identifiable health information” was part of a larger scheme to defraud Medicare, Medicaid, and other healthcare programs.  She admitted, as part of her plea, that her theft of the health information was part of a larger scheme “to sell, transfer, or use” the information for “commercial advantage, personal gain, or malicious harm” and that she intended to give the information to her husband for commercial use by their jointly-owned home health agency.  IG Ex. 2 at 8, 9; see IG Ex. 4 at 10 (¶ 30).

The sentencing judge observed repeatedly that Petitioner’s theft of information was related to program fraud and that she was an active participant in that fraud:

• Petitioner and her husband took the identities “for the purpose of . . . furthering this [fraudulent] scheme . . . .  The two of them together . . . ran this operation [which] was violating Medicare/Medicaid regulations left and right.  I don’t think there could be any question about that.”  IG Ex. 7 at 43.

• “[W]hat went on was healthcare fraud or conspiracy to commit healthcare fraud.”  IG Ex. 7 at 44. 

• “[T]his business [was] fraught with irregularities, founded on stolen identities, at least in part, and . . . skilled nursing care apparently wasn’t occurring as it should.”  IG Ex. 7 at 52.

• “[N]one of this would be at this point if [Petitioner] hadn’t participated in the . . . underlying crime . . . .”  IG Ex. 7 at 107. 

• Although the court apparently did not rely on the names Petitioner stole as a basis for finding fraud, it noted that investigators found 29 printouts of protected patient

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information that Petitioner “surreptitiously collected . . . with the intent to use it in connection with” the home health agency business.  IG Ex. 7 at 108.

• “[T]he business was supported by this illicit theft by the two of you that you are both involved in, and it was an ongoing operation.”  IG Ex. 7 at 108.

• “You may be quiet, but I think you are very smart, obviously well organized and obviously had a leadership role in this . . . .”  IG Ex. 7 at 108-109.

I reject Petitioner’s protestations of innocence and her efforts to place all the blame on her husband.  The court found her equally liable for the program losses (see below), and federal regulations preclude a collateral attack on the court’s findings:

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); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).

Thus, Petitioner Viju’s crime falls within the parameters of section 1128(a)(1), and she must be excluded.

2.  Based on the aggravating factors and no mitigating factor, a ten-year exclusion falls within a reasonable range.

An exclusion brought under section 1128(a)(1) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  I now consider whether the length of the exclusion, beyond five years, falls within a reasonable range.

Among the factors that may serve as a basis for lengthening the period of exclusion are the three that the IG relies on in this case:  1) the acts resulting in the conviction, or similar acts, caused a government program or another entity financial losses of $50,000 or more; 2) the sentence imposed by the court included incarceration; and 3) the convicted individual has been the subject of any other adverse action by any federal, state, or local government or board, if the adverse action is based on the same set of circumstances that serves as a basis for the exclusion.  42 C.F.R. § 1001.102(b).  The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion.

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Program financial loss (42 C.F.R. § 1001.102(b)(1)).  Restitution has long been considered a reasonable measure of program losses.  Jason Hollady, M.D., DAB No. 1855 (2002).

Here, as part of her plea agreement, Petitioner agreed to pay restitution “for losses resulting from all of her criminal conduct, and understands that restitution will not be limited to losses stemming from the offense of conviction alone.”  IG Ex. 2 at 4. (¶ 9).

Citing the Fifth Circuit’s ruling in U.S. v. Echols, 574 Fed. Appx. 350 at 353 (2014), the sentencing judge explained that he was required to limit restitution to “the actual loss directly and proximately caused by the defendant’s offense.”  The court set that loss at $277,957.89.  IG Ex. 3 at 6; IG Ex. 7 at 55.  Thus, Petitioner’s actions resulted in program financial losses more than five times greater than the threshold amount for aggravation, which, by itself, justifies increasing the period of exclusion well beyond the five-year minimum.3

Incarceration (42 C.F.R. § 1001.102(b)(5)).  The court sentenced Petitioner to a substantial period of incarceration – 30 months.  IG Ex. 3 at 2.  While any period of incarceration justifies increasing the period of exclusion, the Board has repeatedly held that longer periods of incarceration are relevant in determining whether a period of exclusion is reasonable.  Eugene Goldman, M.D., a/k/a Yevgeniy Goldman, M.D., DAB No. 2635 at 6 (2015).  Generally, the longer the jail time, the longer the exclusion, because a lengthy sentence evidences a more serious offense.  See Jeremy Robinson, DAB No. 1905 at 12 (2004) (characterizing a nine-month incarceration as “relatively substantial”); Jason Hollady, M.D., DAB No. 1855 at 12 (2002); Stacy Ann Battle, D.D.S., DAB No. 1843 (2002) (finding that four months in a halfway house, followed by four months home confinement justifies lengthening the period of exclusion); Brenda Mills, M.D., DAB CR1461 (2006), aff’d, DAB No. 2061 (2007) (finding that six months home confinement justifies increase in length of exclusion).

Other adverse actions (42 C.F.R. § 1001.102(b)(9)).  Based on the circumstances underlying this exclusion (Petitioner’s criminal conviction for wrongfully disclosing individually identifiable health information), the Texas Board of Nursing determined that it had the authority to revoke Petitioner’s license to practice nursing; it accepted her voluntary surrender of the license.  IG Ex. 5.

Mitigating factor (42 C.F.R. § 1001.102(c)).  The regulations consider mitigating just three factors:  1) a petitioner was convicted of three or fewer misdemeanor offenses and

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the resulting financial loss to the program was less than $5,000; 2) the record in the criminal proceedings demonstrates that a petitioner had a mental, physical, or emotional condition that reduced her culpability; and 3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed.

Petitioner does not cite any of these factors.

Exploiting her position as a hospital nurse, Petitioner wrongfully stole patients’ individually identifiable health information as part of a scheme to enrich her home health agency and herself.  Her illegal conduct cost healthcare programs substantial amounts of money.  Because her crimes were so serious, the court sentenced her to a lengthy prison term, and she lost her license to practice nursing.  No mitigating factors offset these significant aggravating ones.  The IG thus reasonably determined that Petitioner poses a significant threat to program integrity, which justifies a lengthy period of exclusion.

Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs.  So long as the period of exclusion is within a reasonable range, based on demonstrated criteria, I have no authority to change it.  Joann Fletcher Cash, DAB No. 1725 at 7, (citing 57 Fed. Reg. 3298, 3321 (1992)).  I find that the ten-year exclusion falls within a reasonable range.

• 1. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
• 2. Although the plea agreement leaves room for Petitioner to challenge the length of her exclusion beyond the statutory minimum of five years, her challenging the IG’s determination to exclude her seems to violate its explicit provisions.  See IG Ex. 2 at 5 (¶ 11).
• 3. Until February 13, 2017, a $5,000 program loss was considered an aggravating factor, but this amount has been increased.  82 Fed. Reg. 4100, 4103, 4112 (January 12, 2017).  I apply the amount in effect at the time the IG imposed Petitioner’s exclusion (December 29, 2017).