Freida Mae Opitz, DAB CR5080 (2018)

DECISION

Petitioner, Freida Mae Opitz, 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)(1)), effective November 20, 2017. Petitioner’s exclusion, for a minimum period of five years, is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).1

I. Background

The Inspector General (I.G.) of the U.S. Department of Health and Human Services notified Petitioner by letter dated October 31, 2017, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.

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The I.G. cited section 1128(a)(1) of the Act as the basis for Petitioner’s exclusion.  The I.G. advised Petitioner that the exclusion was due to Petitioner’s conviction in the First Judicial District Court, Kootenai County, Idaho, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The I.G. advised Petitioner that the exclusion was effective 20 days from the date of the letter.  I.G. Exhibit (Ex.) 1.

Petitioner timely requested a hearing on November 16, 2017 (RFH).  On November 21, 2017, the case was assigned to me to hear and decide.  I convened a telephone prehearing conference on December 1, 2017, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued December 4, 2017 (Prehearing Order). 

On January 16, 2018, the I.G. filed a motion for summary judgment with a supporting memorandum (I.G. Br.) and I.G. Exs. 1 through 7.  On March 1, 2018, Petitioner filed a brief in opposition to the I.G. motion (P. Br.), with attached exhibits marked A, B, and C (P. Exs. A, B, C) and the affidavit of Petitioner, which was unmarked but which I treat as Petitioner’s exhibit (P. Ex.) D.  The I.G. filed a reply brief on March 16, 2018 (I.G. Reply).  The parties have not objected to my consideration of the offered exhibits and I.G. Exs. 1 through 7 and P. Exs. A through D are admitted and considered as evidence.

II. Discussion

A. Applicable Law

Petitioner has a 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).  Act § 1128(f) (42 U.S.C. § 1320a-7(f)) and 42 C.F.R. §1005.2(a).

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).2

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

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that the I.G. may consider to extend the period of exclusion beyond the minimum five‑year 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 I.G. bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Prehearing Order at 2-3.

B. Issues

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

Whether the I.G. 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 I.G. 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 undisputed fact and analysis.

1. Petitioner timely filed her 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 hearing before an ALJ and both the sanctioned party and the I.G. have a right to participate in the hearing. 42 C.F.R.

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§§ 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. 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 and no hearing is required where either:  there are no genuine disputes of material fact and the only questions that must be decided involve application of law to the undisputed facts; or the moving party prevails as a matter of law even if all factual disputes are resolved in favor of the party against whom the motion is made.  A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party.  See, e.g., Fed. R. Civ. P. 56(c); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997) (holding in-person hearing is required where the non-movant shows there are material facts in dispute that require testimony); Thelma Walley, DAB No. 1367 (1992).

I conclude that summary judgment is appropriate in this case.  There are no genuine disputes of material fact.  The issue raised by Petitioner must be resolved against her as a matter of law and the case can be resolved by applying the law to the undisputed facts.

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 August 30, 2017, Petitioner pleaded guilty to three misdemeanor counts of the unlawful practice of dentistry, specifically Counts IV, V, and VI of the Amended Complaint dated May 24, 2017.  Her guilty plea was accepted, and judgment was entered.  Petitioner was sentenced to pay a fine of $9,000, $6,000 of which was suspended; 40 hours of community service; two years of probation; and to pay restitution of $8,619.28 to the Idaho Department of Health and Welfare.  I.G. Exs. 2, 3, 6, 7; P. Br. at 2; P. Ex. B.   

Petitioner concedes that she was convicted of the unlawful practice of dentistry for performing pre-operation examinations.  Petitioner’s Objection to Motion for Summary Judgment at 2 ¶ 2.  In her affidavit, Petitioner conceded that she was convicted of the unlawful practice of dentistry, including a tooth extraction and pre-operative examinations.  Petitioner states that she did not hold herself out as being qualified or licensed to practice dentistry and she believed that she was able to perform dental examinations under the direction of a dentist.  She states in her affidavit that she was not involved in billing Medicaid for pre-operative services and she only found out about

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Medicaid billing through subsequent investigations.  P.  Ex. D at 2-3 ¶¶ 3-4, 6-7, 13-15.  I accept these assertions of Petitioner as true for purposes of summary judgment.

b. Analysis

The I.G. 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.

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, 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 when a plea of guilty or no contest is accepted; when there is a finding of guilt; when a judgment of conviction is entered; or when one enters into an agreement or program under which a judgment of conviction is withheld. Act § 1128(i) (42 U.S.C. § 1320a-7(i)).

There is no dispute that Petitioner pleaded guilty to three misdemeanor counts of the unlawful practice of dentistry; her guilty plea was accepted; and judgment of conviction was entered by the Idaho court.  Petitioner argues that offenses of which she was convicted were not related to the delivery of an item or service under Medicare or Medicaid.  Petitioner asserts that she was not convicted of fraud or theft and she denies that she knew Medicaid was being billed for her dental examinations.  Petitioner asserts that the I.G. has failed to prove any nexus between the conduct of which she was convicted and the delivery of an item or service under Medicare or Medicaid.  P. Br. at 2‑3.

Appellate panels of the Departmental Appeals Board (the Board) have long held that the statutory terms describing an offense do not control whether that offense is “related to” the delivery of a health care item or service under Medicare or a state health care program for purposes of an exclusion pursuant to section 1128(a) of the Act.  E.g., Dewayne

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Franzen, DAB No. 1165 (1990) (inquiry is whether conviction is related to Medicaid fraud, not whether the petitioner was convicted of Medicaid fraud).  Rather, an ALJ must examine whether there is a “common sense connection or nexus between the offense and the delivery of an item or service under the program.”  Scott D. Augustine, DAB No. 2043 at 5-6 (2006) (citations omitted).  To determine whether there is such a nexus or common-sense connection, “evidence as to the nature of an offense may be considered,” including “facts upon which the conviction was predicated.”  Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994).  An ALJ may also use extrinsic evidence to “fill[] in the circumstances surrounding the events which formed the basis for the offense of which Petitioner was convicted.”  Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000).  The terms “related to” and “relating to” in 42 U.S.C. § 1320a-7 simply mean that there must be a nexus or common sense connection.  Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotes omitted); Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998).

I conclude that the evidence in this case establishes the nexus or common sense connection between the offenses of which Petitioner was convicted and the delivery of a service under the Idaho Medicaid program.  Specifically, Petitioner does not dispute that her services were billed to Medicaid, even though she was unaware of that billing.  Petitioner points to no authority that establishes that her knowledge of the billing to Idaho Medicaid is relevant to whether exclusion is required by section 1128(a)(1) of the Act.  Further, the Idaho court ordered that Petitioner pay restitution to the Idaho Department of Health & Welfare, which administers Idaho’s Medicaid program and is referred to in the restitution order as the victim of Petitioner’s offenses.  I.G. Ex. 7 at 2; Idaho Admin. Code r. 16.03.01.000 (2017).

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

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

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

6. I have no authority to change the effective date of the running of the period of exclusion.

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.

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§ 1001.2007(a)(2), when the I.G. 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.

Exclusion is effective 20 days from the date of the I.G.’s written notice of exclusion to the affected individual or entity.  42 C.F.R. § 1001.2002(b).  The I.G.’s notice to Petitioner is dated October 31, 2017.  Accordingly, the effective date of Petitioner’s exclusion is November 20, 2017.

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for the minimum statutory period of five years, effective November 20, 2017.

• 1. Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires. Reinstatement is not automatic upon completion of the period of exclusion.
• 2. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.