Farah Divanbeigi, D.D.S., DAB CR5978 (2021)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services (HHS) excluded Petitioner, Farah Divanbeigi, D.D.S., from participation in Medicare, Medicaid, and all other federal health care programs for her failure to repay a health education loan or enter into a repayment agreement.  Petitioner sought review of the exclusion.  For the reasons stated below, I overturn the IG’s exclusion determination.

I.  Procedural History

By letter dated November 30, 2020, the IG notified Petitioner she was being excluded from participation in Medicare, Medicaid, and all federal health care programs under section 1128(b)(14) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(b)(14), because she had defaulted on a health education loan and made no arrangement to repay the debt.  IG Ex. 1 at 1.  The IG advised Petitioner that her exclusion would remain in effect until she either repaid the debt in full or entered into a repayment agreement.  Id.

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Importantly, by letter dated November 30, 2018, the IG previously had excluded the same Petitioner pursuant to the same statutory basis, 1128(b)(14) of the Act, and on the same facts:  she had defaulted on the same health education loan and made no arrangement to repay.  See Farah Divanbeigi, D.D.S., DAB CR5474 (2019).  Petitioner had timely appealed that exclusion and the IG’s exclusion was overturned, because Judge Bill Thomas had found that the IG had not met its burden to demonstrate that it had “take[n] into account, in determining whether to exclude [Petitioner] pursuant to this paragraph, access of beneficiaries to physician services for which payment may be made under subchapter XVIII or XIX.”  See id. at 8-9; see also 42 U.S.C. § 1320a-7(b)(14)(B).  During the pendency of the proceedings before the Civil Remedies Division, Petitioner was de facto excluded from December 20, 2018 to November 25, 2019 before being retroactively reinstated upon conclusion of the proceedings. 

With respect to the current November 30, 2020 exclusion, Petitioner timely requested a hearing before an administrative law judge (ALJ).  This case was initially assigned to Judge Leslie C. Rogall, who held a pre-hearing telephone conference attended by the parties on February 24, 2021, the substance of which is summarized in her February 24, 2021 Order Following Pre-hearing Conference and Setting Schedule for Pre-Hearing Submissions (Summary Order).  Among other things, she directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order at 3-5.  If a party proposed to present witnesses at a hearing, the party’s “pre-hearing exchange will include a list of all proposed witnesses and the written direct testimony of each witness (other than expert witnesses).”  Standing Pre-Hearing Order of Administrative Law Judge Leslie C. Rogall for Inspector General Exclusion Cases (Pre-Hearing Order) at § 5.

The IG filed a brief (IG Br.) and fourteen proposed exhibits (IG Exs. 1 to 14), while Petitioner filed a short-form brief (P. Br.) with thirteen proposed exhibits (P. Exs. 1 to 13).  Petitioner also filed two narrative documents entitled “Petitioner Objections to IG’s Proposed Exhibits and Witnesses” (P. Objs,) and “List of Exhibits Provided” (List of Exs.).1  The IG then filed a reply brief (IG Reply). 

During the initial pre-hearing exchanges between the parties, this case was transferred to me.  Upon review of the record, Petitioner, believing that the Health Insurance Portability and Accountability Act (HIPAA) prevented her from submitting dental claims without separate specific judicial authorization, had included a request in her objections to the IG’s proposed exhibits that she be able to submit dental claims as evidence that she had treated Medicare and Medicaid beneficiaries.  P. Objs. at 3.  Petitioner requested to submit this evidence to refute the conclusion in the IG’s data analysis that Petitioner had

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not submitted any final action Medicare and Medicaid dental claims for the period of time from January 1, 2018 to October 13, 2020.  See IG Ex. 12.  

I held a supplemental Pre-hearing Conference on July 15, 2021, and I granted Petitioner’s request to submit additional evidence of her submission of Medicare, Medicaid, and other federal health care program beneficiaries (Program Beneficiaries) claims since January 1, 2017.  See Order for Petitioner to Supplement the Record with Additional Evidence.  I gave the IG 30 days to file a supplemental response to any additional evidence submitted by Petitioner.  Id.  During the conference, I also clarified that I did not have the authority to overturn the Nevada state court default judgment entered in favor of Pennsylvania Higher Education Assistance Agency (PHEAA) against Petitioner for the amount she had failed to pay on her health care loan.  I further explained that Petitioner should contact the HHS Debt Management Branch, Division of Financial Operations, Program Support Center (HHS PSC), as previously directed in the IG’s November 30, 2020 notice of exclusion (see IG Ex. 1), if she had any questions about the loan amount for which she was found in default and to address any concerns regarding loan repayment.  See also P Objs. at 1-2.

Petitioner timely supplemented the record with the following five additional proposed exhibits:

• “Medicaid 01” (DAB E-file Dkt. C-21-438, Doc. No. 27)
• “Medicaid 02” (DAB E-file Dkt. C-21-438, Doc. No. 28)
• “Medicare” (DAB E-file Dkt. C-21-438, Doc. No. 29)
• “Federal 01” (DAB E-file Dkt. C-21-438, Doc. No. 30)
• “Federal 02” (DAB E-file Dkt. C-21-438, Doc. No. 31)

In response, the IG filed a supplemental brief (IG Supp.) with two additional proposed exhibits (IG Exs. 15-16).

II.  Exhibits and Decision on the Record

The IG objects to Petitioner’s Exhibit 10, which is an April 29, 2021 letter stating that Petitioner provided services for Community Partners for Better Health from 1997 through 2000, because it is not written direct testimony in the form of a sworn affidavit or declaration and Petitioner failed to identify the author as a proposed witness.  IG Reply at 3.  The IG also objects to Petitioner’s Exhibits 4, 5, and 12, because the IG asserts that Petitioner’s fiscal complaints are not reviewable.  IG Reply at 5.  The IG also objects to Petitioner’s Supplemental Exhibits, P. Exs. 14 through 18 (DAB E-file Dkt. C-21-438, Doc. Nos. 27-31) containing dental claims submitted by Petitioner, because they allegedly do not contain reliable evidence or constitute evidence that the IG failed to take into account access of Medicare and Medicaid beneficiaries to dental services in determining whether to exclude Petitioner.  IG Supp. at 5-6.  I find Petitioner’s Exhibits

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are relevant and do not unfairly prejudice the IG.  See 42 C.F.R. § 1005.17.  Therefore, with the exception of any portions of Petitioner’s Exhibits 14 through 18 that have dental claims with dates of service after the date Petitioner’s exclusion took effect (December 20, 2020), I overrule the IG’s objections and admit Petitioner’s Exhibits 1 through 18 into the record.

Petitioner’s brief includes a number of “objections” to the IG’s Exhibits, but nearly all are not as to admissibility and are rather argument as to the weight the exhibit should be given or whether it supports the IG’s case.  See P. Objs.  Any such objections by Petitioner are overruled.  Petitioner also objects to IG Exhibit 2, an application for a Health Education Assistance Loan (HEAL) in Petitioner’s name and signed, and IG Exhibit 3, which is a HEAL consolidation loan promissory note in Petitioner’s name and signed.  Petitioner asserts that despite the documents bearing her signature, she did not actually sign them, nor did she write any of the text in IG Exhibit 2.  Petitioner does not otherwise offer any evidence in support of her contention.  Furthermore, on June 15, 2004, a Nevada state court entered a default judgment in favor of PHEAA against Petitioner for the amount she had failed to pay with respect to the HEAL loan referenced in both IG Exhibits 2 and 3.  See IG Ex. 4.  I do not have the authority to review a civil judgment imposing liability by a State court “where the facts were adjudicated and a final decision was made.”  42 C.F.R. § 1001.2007(d).  I overrule these objections as well.  Therefore, I admit IG Exhibits 1 through 16 into the record.

The IG did not request an in-person hearing.  IG Br. at 11.  Petitioner did request an in-person hearing.  P. Br. at 7.  Petitioner asserts a hearing is necessary, because she wishes to “face those made [sic] decision for the office of Inspector General for either disregarding all of e-mails [sic] and [sic] Calls to their prospective offices.”  Id.  However, Petitioner has failed to provide her written direct testimony or even a description thereof, and her responses do not otherwise indicate she would present any additional facts through her testimony that I would need to decide this case.  Id.  Petitioner indicates that she would like to cross-examine four government employees, but none of these individuals are witnesses identified by the IG.  Id.; see also IG Br. at 11.  Petitioner has also failed to provide the written direct testimony for any of those four individuals as required, nor has she requested a subpoena to the extent the written direct testimony would not have otherwise been obtainable.  See Pre-Hearing Order at § 5. Therefore, a hearing is unnecessary, and I will decide this case on the written record.  See Pre-Hearing Order at §11; see Lena Lasher, DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, “no purpose would be served by holding an in-person hearing”), aff’d sub nom. Lasher v. Dep’t of Health & Human Servs., 369 F. Supp. 3d 243 (D.D.C. 2019); 42 C.F.R. § 1005.16(b); see Civ. Remedies Div. P. § 19(d).

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III.  Issue

Whether the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs under 42 U.S.C. § 1320a-7(b)(14).2 See 42 C.F.R. § 1001.2007(a)(1).

IV.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an administrative hearing 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, and the rights of both the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3.

The Act permits the Secretary to exclude3 individuals who default on their health education loans or scholarship obligations and have not made arrangements to repay the debt:

(b) PERMISSIVE EXCLUSION. –The Secretary may exclude the following individuals and entities from participation in any federal health care program (as defined in section [1128B(f)]): . . .

(14) DEFAULT ON HEALTH EDUCATION LOAN OR SCHOLARSHIP OBLIGATIONS.  Any individual who the Secretary determines is in default on repayments of scholarship obligations or loans in connection with health professions education made or secured, in whole or in part, by the Secretary and with respect to whom the Secretary has taken all reasonable steps available to the Secretary to secure repayment of such obligations or loans . . . .

Act § 1128(b)(14) (42 U.S.C. § 1320a-7(b)(14)); see also 42 C.F.R. § 1001.1501(a)(1).  The IG must ensure that the administrator of the loan has taken reasonable steps to secure repayment of the loan or obligation.  42 C.F.R. § 1001.1501(a)(2).  The IG must also “take into account access of beneficiaries to physicians’ services for which payment may be made under Medicare, Medicaid or other federal health care programs in determining whether to impose an exclusion.”  42 C.F.R. § 1001.1501(a)(3).  Finally, the IG may not

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exclude a physician if he or she is the “sole community physician” or the only source of “essential specialized services” in a community, if a state requests that individual not be excluded.  42 C.F.R. § 1001.1501(a)(4). 

Exclusion on this basis persists until the administrator of the loan program notifies the IG that the default has been cured or that the debt is no longer outstanding, at which time the IG will notify the excluded individual of the right to apply for reinstatement.  42 C.F.R. § 1001.1501(b).

The standard of proof in this proceeding 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).

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

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

A.  I have jurisdiction to hear this case.

Petitioner timely requested a hearing.  I therefore 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).

B.  The IG did not establish a basis for Petitioner’s exclusion pursuant to section 1128(b)(14) of the Act.

Exclusion from participation in Medicare, Medicaid, and all federal health care programs is permitted by section 1128(b)(14) of the Act and 42 C.F.R. § 1001.1501(a) where the following four bases of exclusion are met:  (1) an individual is in default on repayments of scholarship obligations or loans in connection with health professions education made or secured, in whole or in part, by the Secretary; (2) the Secretary has taken all reasonable steps to secure repayment of such obligations or loans; (3) the IG has taken into account the effect exclusion would have on beneficiary access to physician services for which payment could be made under Medicare, Medicaid, or other federal health care programs4 ; and (4) the individual in question is not the “sole community physician” or

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the only source of “essential specialized services” in a community on whose behalf a state has requested exclusion be withheld.

As I discuss below, the IG did not establish by a preponderance of the evidence that she took into account the effect Petitioner’s exclusion would have on other federal health care program beneficiaries access to physician services.

1.  Petitioner was in default on repayment of a health education loan that was secured in whole or in part by the Secretary.

From 1978 through 1998, under the auspices of the HEAL program, HHS insured loans made by participating lenders to graduate students in schools of medicine and other health care fields, including dentistry.  See U.S. Dep’t of Ed., Federal Student Aid, Health Education Assistance Loan (HEAL) Information, available at https://fsapartners.ed.gov/knowledge-center/topics/health-education-assistance-loan-heal-information (last visited Nov. 8, 2021).

Petitioner applied for a HEAL in December 1994, seeking to consolidate pre-existing loans, including another HEAL, after completing dental school.  IG Ex. 2.  In May 1995, Petitioner executed a promissory note concerning her HEAL, promising to repay the note holder, Household Bank; the balance at that time was $85,887.51.  IG Ex. 3.  On June 15, 2004, a Nevada state court entered a default judgment in favor of PHEAA against Petitioner for the amount she had failed to pay, which by that time had increased to $123,070.29 in principal, $8,777.90 in interest, and $40 in late fees.  IG Ex. 4 at 1.  Accordingly, I conclude Petitioner’s loan was in default. 

I also conclude that Petitioner’s defaulted loan was a health education loan secured by the Secretary.  A HEAL is by definition made in connection with a health professional’s education.  Petitioner obtained this loan to finance her dental education, and her loan was insured by HHS.  The loan at issue was therefore made in connection with Petitioner’s health education and was secured by the Secretary.

Petitioner does not deny she sought this loan in connection with her dental education, nor does she claim she made payments sufficient to avoid default.  Instead, Petitioner argues that her six years of work at two federally qualified health centers (FQHCs) caused (or should have caused) her loan to be automatically forgiven.  P. Br. at 1-3.  Petitioner believes that the loan “has been satisfied by [her] professional work as “Dentist” and “Dental Director” in both facilities that [Petitioner has] served in exchange for [her] “Student Loan Forgiveness.”  P. Objs. at 1-2. 

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It is possible Petitioner means to argue she participated in a loan forgiveness program or agreement, but if that is the case, she has provided no evidence of such.  Various student loan forgiveness programs exist such as the Health Resources & Services Administration (HRSA) National Health Service Corp (NHSC) Loan Repayment Program.5  The NHSC Loan Repayment Program, for example, presently offers dentists loan forgiveness awards in the amount of $50,000 for a two-year initial full-time term, with additional forgiveness amounts available for longer periods of time, for service commitments at approved sites including FQHCs in designated Health Professional Shortage Areas (HPSA).  See https://nhsc.hrsa.gov/loan-repayment/nhsc-loan-repayment-program#application-requirements (last visited Nov. 8, 2021).  In order to obtain a loan forgiveness award, one must first submit an application, then be selected to receive the award, and enter into a contract that contains various terms and conditions pertaining to receipt of the loan forgiveness award funds.  See id.  Petitioner provides no such evidence, nor does she specifically identify the means by which she believes her dental student loans were to be forgiven.  Accordingly, while Petitioner’s commitment to serving patients in medically underserved areas is clear, her claim that she should not be required to repay a loan solely by virtue of her employment, absent evidence of a loan forgiveness agreement, is without merit.  

2.  The Secretary has taken all reasonable steps to secure repayment of Petitioner’s loan.

The IG has established by a preponderance of the evidence that the Secretary has taken all reasonable steps to secure repayment by Petitioner prior to making the decision to exclude her.  Upon obtaining a default judgment against Petitioner, PHEAA assigned her loan to the U.S. government for purposes of recovery.  IG Ex. 4 at 3; IG Ex. 5.

By letter dated August 31, 2004, HHS’ Debt Management Branch attempted to contact Petitioner to recover the default amount or establish a repayment agreement.  IG Ex. 6. HHS notified Petitioner her defaulted loan had been assigned to the U.S. government and that it had consolidated her loan using the lowest interest rate available.  Id.  HHS also provided Petitioner instructions to enter into a repayment agreement if she could not pay the entire amount due of $132,086 and warned her that failing to pay the debt or enter into a repayment agreement would result in referral to a collection agency or to the Department of Justice for enforcement.  Id.

Receiving no response from Petitioner, HHS issued a letter on November 1, 2004 informing her that her debt had been referred to its own collection agency.  IG Ex. 7. Again receiving no response from Petitioner, HHS issued another letter on December 23, 2004 advising Petitioner that the debt from her “seriously delinquent” account would be referred to other federal agencies for administrative offset.  IG Ex. 8.  HHS reiterated

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Petitioner could pay the debt or enter into a repayment agreement.  Id.  HHS sought to contact Petitioner on two more occasions, in May 2005 and June 2017,6 to persuade her to repay her debt or enter into a repayment agreement.  IG Exs. 9, 10.

Based on these efforts, it is difficult to see what other steps the Secretary could have undertaken to secure repayment from Petitioner.  Other judges in this division have consistently found repeated efforts by the Secretary to communicate with the debtor and obtain full satisfaction have been considered ample evidence of the Secretary’s reasonable efforts to recover the debt.  See, e.g., Michael J. Rosen, M.D., DAB CR1566 (2007); Aloysius C. Maduford, M.D., DAB CR905 (2002); Michael D. Lawton, M.D., DAB CR771 (2001); Georgia Goldfarb, M.D., DAB CR670 (2000); Yolanda Crespo Capo Fernandez, D.O., DAB CR606 (1999); Mohammad H. Azarpira, D.D.S., DAB CR372 (1995).

In response, Petitioner asserts only that the IG has ignored her correspondence with the Reviewing Official at the IG Exclusion Branch.  P. Br. at 3; P. Exs. 7, 8.  However, none of this correspondence was an attempt by Petitioner to repay the loan, which Petitioner contends she has no obligation to repay.

In sum, I find the IG has demonstrated the Secretary took all reasonable measures to collect the debt owed by Petitioner prior to her exclusion.

3.  Petitioner is not a “sole community physician” or the “sole source of essential specialized services in the community” on whose behalf a state has requested exclusion be withheld.

Petitioner does not contend she is a “sole community physician,” but she does contend that she is the source of “essential specialized services” in a community.  P. Br. at 3-4.  Sole source of essential specialized services in the community means that an individual or entity -

(1) Is the only practitioner, supplier or provider furnishing specialized services in an area designated by the Health Resources Services Administration as a health professional shortage area for that medical specialty, as listed in 42 part 5, appendices B-F;

(2) Is a sole community hospital, as defined in § 412.92 of this title; or

(3) Is the only source of specialized services in a reasonably defined service area where services by a non-specialist could not be substituted for the source without jeopardizing the health or safety of beneficiaries.

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42 C.F.R. § 1001.2. 

While Petitioner might be able to satisfy the definition of “sole source of essential specialized services in the community” depending on how the service area is defined, there is no evidence in the record that a State has requested she not be excluded.  The IG is only prohibited from excluding a physician who is the sole source of essential specialized services in a community “if a State requests that the physician not be excluded.”  42 C.F.R. § 1001.1501(a)(4). 

4.  The IG has shown she took into account the effect Petitioner’s exclusion would have on beneficiary access to services for which payment could be made under Medicare and Medicaid, but not for which payment could be made under other federal health care programs.

The regulations do not prescribe any method by which the IG must “take into account access of beneficiaries to physicians’ services for which payment may be made under Medicare, Medicaid or other federal health care programs in determining whether to impose an exclusion.”  42 C.F.R. § 1001.1501(a)(3).  Implicit, however, in the statutory and regulatory requirement to satisfy the basis of exclusion under (b)(14) of the Act is that the method selected by the IG must, in fact, be able to provide a basis by which the IG could determine the impact the exclusion would have on Program Beneficiaries.  Therefore, so long as the method selected by the IG could reasonably take into account the impact to Program Beneficiaries, the IG has the sole discretion to determine whether the value in potentially recouping the defaulted loan amount outweighs the cost to Program Beneficiaries by the physician’s exclusion and inability to provide services to Program Beneficiaries. 

Here, for example, the IG has determined that it is of greater value for it to exclude Petitioner in an attempt to recoup the $132,086 than the value Petitioner would have provided in rendering services to Medicare and Medicaid beneficiaries in a dental shortage and medically underserved area.7   See IG Br. at 9-10; IG Ex. 13.  So long as the IG meets its burden of proof that it took into account Program Beneficiaries access to services, I do not have the authority to review the OIG’s discretion in its assessment that the balance tips in favor of exercising its permissive discretionary authority.  See 42 C.F.R. § 1005.4(c)(5).  Therefore, my review is limited to whether (1) the methodology selected by the IG would, in fact, permit the IG to take into account the impact

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Petitioner’s exclusion would have on Program Beneficiaries, and (2) the IG’s actual analysis accurately accounted for the factors it set to consider as a part of its methodology.

a.  The IG did take into account Medicare and Medicaid beneficiaries access to physician services in determining whether to exclude Petitioner.

Unlike Farah Divanbeigi, D.D.S., DAB CR5474 involving the same Petitioner, the record before me establishes that prior to deciding to exclude Petitioner, the IG took into account the impact of Petitioner’s exclusion on Medicare and Medicaid beneficiaries as required.  The IG chose the following methodology to assess such impact:

• Determine whether Petitioner is currently enrolled as a participating Medicare and Nevada Medicaid provider, which she was;
• For an approximate 33-month period—from January 1, 2018 to October 13, 20208 —assess the number of Medicare and Nevada Medicaid final action dental claims submitted by Petitioner based on dates of service, which was assessed at zero;
• Identify the number of Medicare and Nevada Medicaid participating dentists within a 1-, 3-, and 5-mile radius of Petitioner’s primary practice location, which was 30, 79, and 107, respectively; and
• Identify the number of Medicare and Medicaid beneficiaries receiving dental services within 1-, 3-, and 5-mile radius of Petitioner’s primary practice location, which was plotted in a graphical format in IG Exhibit 13.9

See IG Ex. 12.  The specific criteria for the claims data extraction and methodology for identifying and mapping providers and beneficiaries is also contained in IG Exhibit 12.  Petitioner does not contest the IG’s methodology itself.

Rather, Petitioner contests (1) that the particular 33-month time frame used by the IG was inappropriate as it included the 11-month period of time for which she was prohibited from submitting claims for dental services rendered to Medicare and Medicaid

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beneficiaries as she had been de facto excluded pending her earlier hearing before the Civil Remedies Division in 2019, and (2) the IG failed to account for the actual number of Medicare and Medicaid beneficiaries for whom she provided services during the time frame selected by the IG.  See P. Br. at 5-7; P. Objs. at 3. 

With respect to Petitioner’s first contention, the IG acknowledged that the 33-month time frame it selected included 11 months for which the Petitioner was unable to treat Program Beneficiaries.  The IG states that this factor was taken into account in its analysis and that it determined that the 22-month period within the time frame selected was sufficient for the IG to assess the impact Petitioner’s exclusion would have on Medicare and Medicaid beneficiaries.  IG Br. at 10, fn. 6.  Given the facts and circumstances of this case, including that the time frame includes nearly a 2-year period for which Petitioner was not de facto excluded, with one of those years occurring prior to Petitioner’s first exclusion, I find that the time frame is adequate for the IG to take into account the impact of Petitioner’s exclusion on Medicare and Medicaid beneficiaries, absent a contrary showing.10

With respect to Petitioner’s second contention, Petitioner was permitted to supplement the record with evidence of “dental services she has rendered since January 1, 2017 to patients for which payment for services rendered may have been or may still be made under Medicare, Medicaid, or other federal health care programs.”  Order For Petitioner to Supplement The Record with Additional Evidence (July 20, 2021).  Petitioner subsequently submitted three exhibits comprised of dental claims of Medicare and Medicaid patients she treated since January 2017, one year prior to the time frame analyzed initially by the IG, and until December 20, 2020, which is when the current exclusion went into effect.  P. Exs. 14-16.  Petitioner offered these exhibits to demonstrate that the IG did not accurately account for the amount of Medicare and Medicaid beneficiaries she had treated during the relevant time period, but she did not otherwise provide a separate written document other than the argument contained in her initial briefing.  See P. Br. at 5-7; P. Objs. at 3. 

These supplemental exhibits contain the following:

• Medicaid (P. Exs. 14 and 15) – combined dental claims for 28 unique patients with 40 unique dates of service ranging from February 9, 2017 to December 15, 2020.11   Of the 28 unique patients, 14 of the patients have associated claims with the word “Medicaid” denoted on them, and the claims associated with the remaining 14

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patients do not.  Of the remaining 14 patients’ claims, Liberty Dental Plan is identified as the payor, but it is not discernable on the face of the claim whether it is for Liberty Dental Plan’s Medicaid offering or another line of business.12   Additionally, there is no information provided as to whether the claim was ultimately paid or a “final action claim,” as used in the IG’s data extract criteria for its analysis.

• Medicare (P. Ex. 16) – contains claims for 8 unique patients with 10 unique dates of service for dental services ranging from February 28, 2019 until December 17, 2020.  For 5 out of the 8 patients, there is a photocopy of the patient’s insurance card indicating that the patient is the beneficiary of a Medicare Advantage plan.  None of the dental claims on their face otherwise appear to indicate that the payor is a Medicare Advantage plan or otherwise provide discernable evidence as to whether the claim is for Medicare or otherwise.  Additionally, there is no information provided as to whether the claim was ultimately paid or a “final action claim,” as used in the IG’s data extract criteria for its analysis.

In response, the IG re-ran a separate data analysis for the time frame January 1, 2017 to December 20, 2020 and was only able to verify one of the above claims as a final action Nevada Medicaid claim.  See IG Ex. 15 at 1.  The enlarged time frame analysis also specifically indicates the number of Medicaid beneficiaries who had final action claims, unlike the initial analysis.  See id.  While otherwise it appears the methodology the IG used is the same, the number of dentists identified as treating Medicare and Medicaid patients within a 5-mile radius of Petitioner’s practice address is nearly double in the longer time frame as compared to the more recent, shorter time frame analysis.  Compare IG Ex. 15 with IG Ex. 12.13

It is unclear based on the record why the claims provided by Petitioner are not verifiable final action claims.14   Regardless, assuming arguendo that all evidentiary ambiguity were resolved in Petitioner’s favor, Petitioner has provided evidence, at most, of having provided dental services to 35 more unique Medicare and Medicaid patients from the time period January 1, 2017 through December 20, 2020 than the IG accounted for in its

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second analysis and 29 more unique Medicare and Medicaid patients than what the IG had accounted for in its initial analysis.  See P. Exs. 14-16.  Given the present facts and circumstances and excluding consideration of other federal health care beneficiaries, which is discussed below, this discrepancy is not great enough for me to conclude that the IG failed to demonstrate by a preponderance of the evidence that it took into account Medicare and Medicaid beneficiaries access to services in determining whether to exclude Petitioner.  See 42 C.F.R. § 1001.1501(a)(3).

b.  The IG did not take into account other federal health care program beneficiaries access to physician services in determining whether to exclude Petitioner.

The record before me does not establish the IG has taken into account the impact of Petitioner’s exclusion on other federal health care program beneficiaries access to services.  Here, and as outlined in greater detail above, the entirety of the IG’s efforts were limited to taking into account the impact of Petitioner’s exclusion on Medicare and Medicaid beneficiary access to services.  See IG Br. at 9-10; IG Supp. at 2-3, and IG Exs. 12, 13, 15, and 16.  While the IG in its Reply brief states without support that it “took into account access of beneficiaries to dentists’ services for which payment may be made under Medicare, Medicaid, or other federal health care programs in determining to impose the exclusion,” the IG has produced no evidence that it took into account any federal health care programs other than Medicare and Medicaid. 15   IG Reply at 4; see also IG Supp. Br. at 2-3.

A federal health care program is defined as “any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government (other than the Federal Employees Health Benefits Program), or any State health care program as defined in this section.”  42 C.F.R. § 1001.10.  See also 42 U.S.C. § 1320a-7b(f) (defining federal health care program); IG Supp. Br. at 5.  A state health care program is, in turn, defined as the following:

(1) A State plan approved under Title XIX of the Act (Medicaid),
(2) Any program receiving funds under Title V of the Act or from an allotment to a State under such title (Maternal and Child Health Services Block Grant program),

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(3) Any program receiving funds under subtitle A of Title XX of the Act or from any allotment to a State under such subtitle (Block Grants to States for Social Services), or
(4) A State child health plan approved under Title XXI (Children's Health Insurance Program).

42 C.F.R. § 1001.10; see also 42 U.S.C. § 1320a-7(h) (defining state health care program).  Therefore, in addition to Medicare and Medicaid, other federal health care programs include the State Children's Health Insurance Program (SCHIP), the Department of Defense TRICARE programs, the Veterans Health Administration (VHA) program, the Indian Health Service (IHS) program, and any state programs that receive Social Services or Maternal and Child Health Services Block Grant funding.  See also https://oig.hhs.gov/exclusions/effects_of_exclusion.asp (last visited Nov. 8, 2021) (“[t]he most significant federal health care programs are Medicare, Medicaid, Tricare and the Veterans programs). 

Nowhere in the IG’s exhibits or in its briefing has the IG indicated that its methodology or any of the data it evaluated took into account Petitioner’s exclusion on other federal health care program beneficiaries access to services in determining whether to exercise its permissive authority to exclude Petitioner.  Moreover, even though the burden of production was therefore not shifted to Petitioner, Petitioner provided evidence and argues that a large portion of the population she treats may be other federal health care program beneficiaries such as the following:

• she asserts that she provides dental services to Desert Regional Center, which is a program for persons with intellectual disabilities and related conditions administered by the Aging and Disability Services Division of Nevada Department of Health and Human Services.  See P. Br. at 4.  The Desert Regional Center specifically received Social Service Block Grant funding in past years, and therefore the patients she treats there are likely federal health care program beneficiaries.  See https://dhhs.nv.gov/Programs/Grants/Funding/Title_XX/SSBG_TXX_FY18_Grant_Awards/ (last visited Nov. 8, 2021).
• she provides dental services as the sole licensed dentist since 2000 to a juvenile detention center Summit View Youth Center, which is under the Nevada Division of Child and Family Services.  See P. Br. at 4; P. Exs. 6, 8 at 7-14.  The Nevada Division of Child and Family Services received Social Service Block Grant funding in past years, and therefore the patients she treats there may be federal health care program beneficiaries.  See https://dhhs.nv.gov/Programs/Grants/Funding/Title_XX/SSBG_TXX_FY18_Grant_Awards/ (last visited Nov. 8, 2021).

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• she asserts that she treats TRICARE and VHA program beneficiaries.  See P. Ex. 7 at 8.16
• she provides dental services to other non-profits that address substance abuse and mental health issues, depending on their funding sources or whether any of the youth receive CHIP benefits, they may also qualify as federal health care program beneficiaries.  See P. Br. at 4.
• she provides evidence that she participates in the Nevada Check Up program, which is Nevada’s CHIP program.  See P. Ex. 8 at 4-5.

The IG bears the burden to meet the statutory and regulatory elements for exclusion and therefore to gather any information necessary to make that assessment.  42 C.F.R. § 1005.15(c).17   The IG did not produce any evidence to demonstrate that it took into account – or tried to assess – the impact of Petitioner’s exclusion on other federal health care program beneficiaries in her area, which is both a Medically Underserved Area and Population and a Dental HPSA.  See IG Ex. 13 at 6-9.  The Secretary in interpreting Congress clearly required the IG to take other federal health care program beneficiaries into account when exercising the discretion to exclude a physician for defaulting on a health education loan.  As such, I cannot affirm that the IG proved by a preponderance of the evidence that she met this required basis for exclusion.

VI.  Conclusion

Even though I have ruled in Petitioner’s favor, the IG has demonstrated a rationale to exclude Petitioner, who has refused to communicate with HHS PSC concerning repayment and negotiation of her student loan debt for which she was found both accountable and in default pursuant to a Nevada state court proceeding.  The IG can still remedy the remaining defect by taking into account other federal health care program beneficiaries access to physician services in determining whether to exclude Petitioner again.  See Farah Divanbeigi, D.D.S., DAB CR5474.  After performing that analysis, the IG in its sole discretion may or may not decide that it is of greater value to exclude petitioner than the value associated with Program Beneficiaries access to Petitioner’s dental services.  

As she explained during the Pre-hearing Conference on July 15, 2021, Petitioner has refrained from contacting the HHS PSC despite repeated direction to do so, because she believes that such contact is an admission that she agrees she owes the money.  What

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Petitioner fails to understand is that she has already been found liable for the loan amount by a State court and that judgment cannot be overturned by this tribunal even if Petitioner provided sufficient evidence to support her claims of loan forgiveness, which she has not.  Absent evidence of participation in a loan forgiveness program, working at FQHCs in a HPSA, though laudable, does not automatically result in HEAL loan forgiveness.  I advise Petitioner to promptly contact the HHS PSC to address the debt.

For the foregoing reasons, I reverse the IG’s determination to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(14) of the Act (42 U.S.C. § 1320a-7(b)(14)).  I order the IG to reinstate Petitioner as a participating supplier in Medicare, Medicaid, and all other federal health care programs forthwith.  42 C.F.R. § 1001.3005(a)(3).

• 1.   Note that the first three pages of Petitioner’s List of Exhibits Provided also contain a signed version of the “Petitioner Objections to IG’s Proposed Exhibits and Witnesses,” which is an exact duplicate of the separate Petitioner Objections to IG’s Proposed Exhibits and Witnesses file except that it is unsigned.
• 2.   Because the length of the exclusion is premised on a contingent condition – default on a health education loan – and the IG cannot select a longer period beyond that in which the contingent condition exists, the exclusion period is per se reasonable and therefore not at issue.  See 42 C.F.R. § 1001.1501(b) (providing an individual excluded on the basis of a health education loan default will have the right to apply for reinstatement when the default is cured or when there is no longer an outstanding debt).
• 3.   The Secretary has delegated the authority to exclude individuals pursuant to section 1128 of the Act to the IG.  48 Fed. Reg. 21,662 (May 13, 1983).
• 4.   The provision at issue here requires the Secretary to consider the impact of exclusion on “access of beneficiaries to physician services for which payment may be made under title XVIII or XIX.” Act § 1128(b)(14).  42 U.S.C. § 1395x(r)(2) specifically defines the term “physician” to include “[doctors] of dental surgery or of dental medicine” for the purposes of the subchapter in which it is incorporated, Subchapter XVIII, which pertains to Medicare; see also 42 C.F.R. § 410.20(b)(2) (providing “Physicians’ services” for which Medicare Part B will provide payment to include those provided by “[a] doctor of dental surgery or dental medicine”).  Similarly, provisions of Title XIX that pertain to payments for medical assistance made under the Medicaid program explicitly use the same definition of the term “physician.”  See 42 U.S.C. § 1396d(a)(5)(B) (incorporating by reference 42 U.S.C. § 1395x(r)(2)).
• 5.   The NHSC Loan Repayment Program began in the 1980’s.  See https://nhsc.hrsa.gov/about-us (last visited Nov. 8, 2021).
• 6.   It is unclear from the record why HHS chose to wait 12 years to pursue Petitioner’s debt after making its initial efforts in 2004 and 2005. 
• 7.  This weighing may include additional factors besides simply the amount of debt and the amount of services provided to Program Beneficiaries such as the likelihood a Petitioner will be able to satisfy the debt, the circumstances surrounding the debt and its default, the physician’s practice, the administrative cost to enforce, and general deterrence.  Either way, it is within the IG’s sole discretion to assess whether it ought to exercise its permissive exclusion authority once it has taken into account the impact of the physician’s exclusion on Program Beneficiaries.
• 8.   Note that while the data was pulled as of October 13, 2020, the most recent Nevada Medicaid claims at the time were from September 16, 2020.  See IG Ex. 12.
• 9.   The IG’s initial analysis which was conducted prior to excluding Petitioner did not provide the totals for the number of Medicaid and Medicare beneficiaries who received dental services for this period of time.  While this information would in the vast majority of facts and circumstances be necessary to take into account the impact of a physician’s exclusion on Program Beneficiaries, here it is unnecessary given that the IG’s analysis determined that Petitioner had zero final action dental claims for the 33-month time period initially evaluated.  See IG Ex. 12.  Moreover, the IG, in response to Petitioner’s supplemental submission of dental claims from January 1, 2017 to December 20, 2020, updated its data analysis to account for the expanded period of time and specifically listed the number of Medicare and Medicaid beneficiaries that sought services during the enlarged time frame.  See IG Exs. 15, 16.
• 10.   Because the period from January 1 to December 20, 2018 is of significant duration, was prior to the COVID-19 pandemic, which has significantly reduced the number of patients seeking dental services, and was prior to her first de facto exclusion, it is reasonable for the IG to determine it would provide an adequate baseline for the number of Medicare and Medicaid beneficiaries Petitioner provides dental services, absent a contrary showing.
• 11.   If the time frame excluded 2017, as did the IG’s initial analysis, there are dental claims for 25 unique patients.
• 12.   See https://www.libertydentalplan.com/About-LIBERTY/Company-Facts.aspx (last accessed November 8, 2021) (explaining that Liberty Dental Plan is a privately held dental benefits corporation that administers dental benefits on behalf of numerous government sponsored programs, commercial and individual plans, Marketplace and Exchange plans, and labor unions).
• 13.   This may indicate that nearly half of the dentists who treated Medicare and Medicaid patients in the area where Petitioner practices ceased providing services to Medicare and Medicaid beneficiaries between 2017 and 2018.  Alternatively, it may indicate that there is great inconsistency among a large portion of the dentists in treating Medicare and Medicaid beneficiaries in the area even over relatively short periods of time. Or some combination of both factors may be present. 
• 14.   While the IG is not required to use final action claims as the basis for taking into account Program Beneficiaries access to services in determining whether to exclude a physician for default of a student loan, this was the data extract criteria the IG employed in its analysis.  See IG Exs. 12, 15.
• 15.   In 1999, the IG revised 42 C.F.R. § 1001.1501(a)(3) from requiring the IG to take into account access of beneficiaries to physicians’ services for which payment may be made under “Medicare or State health care programs” in determining whether to impose an exclusion to “Medicare, Medicaid or other Federal health care programs.”  Compare 57 Fed. Reg. 3298, 3339 (Jan. 29, 1992) with 64 Fed. Reg. 39420, 39427 (July 22, 1999).
• 16.   Petitioner additionally provided dental claims forms that she alleges are of other federal health care program beneficiaries, but the claims themselves either do not appear on their face to specifically identify the program to which they pertain or indicate that it is a Federal Employee Health Benefit plan, which is exempted from the definition of federal health care program.  See P. Exs. 17-18. 
• 17.   This regulation affords me the authority to allocate the burden of proof between the parties as I deem appropriate. I allocated the burden of proof for all aspects of this case to the IG, except for affirmative defenses and mitigating factors, which I allocated to Petitioner, supra at 6.