George Sarfo Dwomoh, DAB CR5431 (2019)

DECISION

Petitioner, George Sarfo Dwomoh, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act  (Act) (42 U.S.C. § 1320a-7(a)), effective March 20, 2019.  Petitioner’s exclusion for five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).

I. Background

The Inspector General (IG) of the U.S. Department of Health and Human Services notified Petitioner by letter dated February 28, 2019, that he was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  The IG cited section 1128(a)(1) of the Act as the basis for Petitioner’s exclusion.  The IG stated that the exclusion was based on Petitioner’s conviction in the Court of Common Pleas, Franklin County, Ohio, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  IG Exhibit (Ex.) 1.

Petitioner timely requested a hearing on April 28, 2019 (RFH).  On May 2, 2019, the case was assigned to me to hear and decide.  I convened a telephone prehearing conference on May 21, 2019, the substance of which is memorialized in my Prehearing Conference

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Order and Schedule for Filing Briefs and Documentary Evidence issued on that day (Prehearing Order).

On June 17, 2019, the IG filed a motion for summary judgment, supporting brief, and IG Exs. 1 through 5.  On July 21, 2019, Petitioner filed a brief in opposition (P. Br.) with two exhibits, and he filed a third exhibit on July 23, 2019.  Petitioner’s exhibits are not marked correctly but they are treated as marked as follows:  Petitioner’s Exhibit (P. Ex.) 1 is a letter dated May 12, 2017, signed by Richson Adu; P. Ex. 2 is a document titled, in part, “Entry Sealing Record of Conviction”; and P. Ex. 3 is a document titled “Report Information,” which Petitioner represents shows that he was excluded from Ohio Medicaid.  The IG filed a reply brief on August 5, 2019.  Petitioner filed a sur-reply on September 12, 2019 (P. Sur-reply).  The parties have not objected to my consideration of the offered exhibits and IG Exs. 1 through 5 and P. Exs. 2 and 3 are admitted and considered as evidence.  P. Ex. 1 is not admitted.  P. Ex. 1 is a statement from Petitioner’s former employer’s representative.  P. Ex. 1 is not relevant to any issue before me as Petitioner may not collaterally attack his underlying conviction before me (42 C.F.R. § 1001.2007(d)) and there is no issue of the reasonableness of the duration of the period of exclusion (42 C.F.R. § 1001.2007(a)(2)).

II. Discussion

A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).

Pursuant to section 1128(a) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted under federal or state law of, among other things:  a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).1

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of not less than five years.  42 C.F.R. § 1001.102(a).  The Secretary has published regulations that establish aggravating factors that the IG may consider to extend the period of exclusion beyond the minimum five-year

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period, as well as mitigating factors that may be considered only if the minimum five-year period is extended.  42 C.F.R. § 1001.102(b), (c).

The standard of proof is a preponderance of the evidence, and there may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(c), (d).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 4.

B. Issues

The Secretary has by regulation limited my scope of review to two issues:

Whether the IG has a basis for excluding an individual or entity from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

When, as in this case, the IG imposes the minimum authorized five-year exclusion under section 1128(a) of the Act, there is no issue as to whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(2).

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

My conclusions of law are set forth in bold text followed by my findings of fact and analysis.

1. Petitioner timely filed his request for hearing and I have jurisdiction.

There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

2. Summary judgment is appropriate.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have a right to participate in the hearing.  42 C.F.R. § 1005.2-.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration. 

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42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  Surabhan Ratanasen, M.D., DAB No. 1138 (1990); Foderick, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmovant must allege facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense.  The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment.  To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder.  On summary judgment, the judge does not weigh the evidence or attempt to determine the truth.  Rather, the judge accepts the nonmovant’s evidence as true and draws all permissible inferences in the nonmovant’s favor.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-57 (1986).

There are no genuine issues of material fact in dispute in this case.  Petitioner argues that Ohio Medicaid excluded him on December 20, 2016, and he reasons that the IG’s exclusion of him amounts to double jeopardy.  He also argues that if the IG has a basis to exclude him the exclusion should have been effective the date of his conviction.  P. Br.; P. Sur-reply.  The issues Petitioner raises are issues of law that must be resolved against him.  The material facts that trigger mandatory exclusion pursuant to section 1128(a) are not in dispute.  There is no issue of whether the period of exclusion is unreasonable because the IG imposed the minimum mandatory period of five years.  Accordingly, I conclude that summary judgment is appropriate.

3. Section 1128(a)(1) of the Act requires Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs.

a. Facts

The material facts are undisputed.

On December 20, 2016, Petitioner was indicted by a grand jury in the Court of Common Pleas, Franklin County, Ohio, of one count of Medicaid fraud, a fourth degree felony, and

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two counts of theft, fifth degree felonies.  The Medicaid fraud count alleged that between about January 1, 2015 and May 12, 2016, Petitioner knowingly made or caused to be made false or misleading statements or representations to obtain reimbursement from Ohio Medicaid for $7,500 or more and less than $150,000.  The two theft counts alleged that between January 1, 2015 and May 12, 2016, Petitioner stole by deception $1,000 to $7,500 from Confidential Health Service (Confidential) and Trinity Home Healthcare (Trinity).  IG Ex. 2 at 1-2.  The Ohio Attorney General’s memorandum requesting the indictment alleged Petitioner was a home health aide employed by Confidential and Trinity and that he caused them to bill Ohio Medicaid for services he did not actually provide to a Medicaid beneficiary.  IG Ex. 3.

On September 28, 2017, Petitioner pleaded guilty to one count of misdemeanor theft, a lesser-included offense of one of the theft charges.  Petitioner agreed to pay restitution of $5,250 to Ohio Medicaid as part of his plea deal.  The state court judge accepted Petitioner’s guilty plea and found him guilty.  The count of Medicaid fraud and the second felony theft charge were abandoned.  IG Exs. 4, 5.

On February 7, 2019, the record of Petitioner’s conviction was sealed by order of the Court of Common Pleas, Franklin County, Ohio.  The order states that it does not prevent the use of records and information related to the conviction in any civil proceeding arising from or related to the facts of the criminal case.  P. Ex. 2.

Petitioner represents that P. Ex. 3 supports his assertion that he was excluded from participation in the Ohio Medicaid program on December 20, 2016.  I accept that Petitioner was excluded from Ohio Medicaid on about December 20, 2016, for purposes of summary judgment.

b. Analysis

The IG cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute provides in relevant part:

(a) MANDATORY EXCLUSION. – The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1) CONVICTION OF PROGRAM-RELATED CRIMES. – Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

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Act § 1128(a)(1).  Congress has, by the plain language of section 1128(a)(1) of the Act, required the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity:  (1) convicted of a criminal offense, whether a misdemeanor or felony; (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service was under Medicare or a state health care program.  An individual or entity is considered to have been “convicted” of an offense if, among other things, “a plea of guilty or nolo contendre by the individual or entity has been accepted by a Federal, State, or local court.”  Act § 1128(i)(3) (42 U.S.C. § 1320a-7(i)(3)).  Here, the trial court accepted Petitioner’s guilty plea to the lesser-included misdemeanor of the felony theft charge.  IG Exs. 4, 5.  The court’s acceptance of Petitioner’s guilty plea constitutes a conviction for purposes of Petitioner’s exclusion under section 1128(a)(1) of the Act.  Act § 1128(i)(3).

Petitioner has not disputed that the offense of which he was convicted was related to the delivery of an item or service under Medicaid.  The Departmental Appeals Board (Board) has repeatedly opined that for an offense to trigger exclusion pursuant to section 1128(a)(1) of the Act, the offense need only be in connection with the delivery of a health care item or service, and all that needs to be shown to satisfy that element is a common sense connection or nexus between the conviction and the delivery of a health care item or service under Medicare or Medicaid.  The Board has stated that the facts upon which a conviction was predicated may be considered in deciding whether the required nexus exists.  Kimbrell Colburn, DAB No. 2683 at 5 (2016).  In this case, there is an obvious nexus between Petitioner’s offense and the delivery of a health care item or service under a state health care program, specifically Ohio Medicaid.  It is not disputed that Petitioner was charged and convicted of causing his employers to bill Ohio Medicaid for care and services to a Medicaid beneficiary – care and services that Petitioner did not actually deliver.  Petitioner pleaded guilty to and was convicted of a misdemeanor rather than a felony pursuant to his plea agreement.  However, Petitioner has not presented evidence or alleged that the factual basis for the misdemeanor of which he was convicted varied from the facts originally alleged under the felony charge.  Based on the undisputed facts and drawing all favorable inferences for Petitioner, I conclude as a matter of law that there is a nexus between Petitioner’s criminal conduct and the delivery of an item or service under Ohio Medicaid.

Accordingly, I conclude that all elements that trigger a mandatory exclusion pursuant to section 1128(a)(1) of the Act are satisfied and the IG has a basis to exclude Petitioner.

Petitioner argues that he was excluded from Ohio Medicaid based upon his conviction and that his exclusion from Medicare for the same reason constitutes double jeopardy.  RFH; P. Br.; P. Sur-reply.  Generally, I am bound to follow the federal statutes and regulations and have no authority to declare them unconstitutional.  Susan Malady, R.N., DAB No. 1816 (2002); 42 C.F.R. § 1005.4(c)(1).  In interpreting and applying the Act and regulations, I must do so consistent with Constitutional principles.  However, in this

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case there is no issue of interpretation for me, only an attack upon the Act and the regulations on Constitutional grounds.  Petitioner has preserved his double jeopardy argument for appeal, though both the Board and the federal courts have rejected similar arguments before.  Exclusions imposed by the IG are civil sanctions, remedial in nature and not punitive and criminal.  Because exclusions are remedial sanctions, they do not violate the double jeopardy clause or the prohibition against cruel and unusual punishment.  Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); Joann Fletcher Cash, DAB No. 1725 (2000); Douglas Schram, R.Ph., DAB No. 1372 (1992); and Janet Wallace, L.P.N., DAB No. 1326 (1992).2 Arguments that the exclusion provisions are anything but remedial have been found to be without merit.  Manocchio, 961 F.2d at 1541-42; Greene, 731 F. Supp. at 839-40.  The federal courts have also rejected claims that the Secretary’s exclusion procedures amount to a deprivation of due process, finding no constitutionally protected property or liberty interests.  Rodabaugh v. Sullivan, 943 F.2d 855 (8th Cir. 1991); Lavapies v. Bowen, 883 F.2d 465 (6th Cir. 1989); Hillman Rehab. Ctr. v. U.S. Dep’t. of Health & Human Servs., No. 98-3789 (GEB), slip op. at 16, 1999 WL 34813783, at 16 (D.N.J. May 13, 1999); Travers v. Sullivan, 801 F. Supp. 394, 404-05 (E.D. Wash. 1992), aff’d, Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994).

Petitioner argues that the effective date of his exclusion should be made retroactive to the date of his conviction.  However, the applicable regulation is clear that the effective date of exclusion is 20 days after the date of the IG’s notice of exclusion, and the IG, the Board, and I have no discretion to change the effective date.  42 C.F.R. § 1001.2002(b).

4. Section 1128(c)(3)(B) of the Act requires a minimum exclusion period of five years for any exclusion action pursuant to section 1128(a) of the Act.

5. Petitioner’s exclusion for five years is not unreasonable as a matter of law.

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Congress established five years as the minimum period of exclusion for exclusions pursuant to section 1128(a) of the Act.  Act § 1128(c)(3)(B).  Pursuant to 42 C.F.R. § 1001.2007(a)(2), when the IG imposes an exclusion pursuant to section 1128(a) of the Act for the statutory minimum period of five years, there is no issue of whether or not the period is unreasonable.  Accordingly, I conclude that Petitioner’s exclusion for a period of five years is not unreasonable as a matter of law.

III. Conclusion

For all of the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum of five years, effective March 20, 2019.

• 1. Citations are to the 2018 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.
• 2. The exclusion remedy serves twin congressional purposes: the protection of federal funds and program beneficiaries from untrustworthy individuals and the deterrence of health care fraud. S. Rep. No. 100-109, at 1-2 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 686 (“clear and strong deterrent”); Joann Fletcher Cash, DAB No. 1725 at 18 (2000) (discussing trustworthiness and deterrence). When Congress added section 1128(a)(3) in 1996, it again focused upon the desired deterrent effect: “greater deterrence was needed to protect the Medicare program from providers who have been convicted of health care fraud felonies . . . .” H.R. Rep. 104-496(I), at 86 (1996), reprinted in 1996 U.S.C.C.A.N. 1865, 1886.