Renee Lekan, DAB CR5130 (2018)

DECISION

Petitioner, Renee Lekan (Ms. Lekan or Petitioner), was compensated by the Illinois state Medicaid Home Services Program as a personal assistant to her disabled ex-husband.  In Illinois state court, Ms. Lekan pled guilty to a charge of theft by deception involving Medicaid claims for services she did not perform.  Based on this, the Inspector General (I.G.) has excluded Ms. Lekan for five years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(1) of the Social Security Act (Act).1 Ms. Lekan appeals the exclusion.  For the reasons discussed below, I find that the I.G. properly excluded Ms. Lekan and that the statute mandates a minimum five-year exclusion. 

I. Background

As a personal assistant to her ex-husband, Petitioner was compensated for her caregiving services by the Illinois Department of Human Services (DHS).  Request for Hearing

Page 2

(RFH) at 1‑2.  Petitioner’s ex-husband was treated in a hospital and a nursing facility during the period from March 28, 2014 to May 14, 2014.  RFH at 1.  Petitioner continued to submit timesheets for her caregiving services while her ex-husband was receiving care in these facilities.  Id.  Petitioner was indicted by a grand jury on two counts of theft, one count of forgery, and one count of vendor fraud.  I.G. Exhibit (Ex.) 2.  She subsequently pled guilty to one count of theft, and was sentenced to participation in a “Second Chance Probation” program by the Circuit Court of the Eighteenth Judicial Circuit in DuPage County, Illinois (Illinois state court).  I.G. Ex. 4 at 1. 

In a letter dated November 30, 2017, the I.G. notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five years because she had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program.  I.G. Ex. 1.  The letter explained that Section 1128(a)(1) of the Act authorizes the exclusion.  Id.  Petitioner timely requested review.  I convened a telephone prehearing conference and issued an Order and Schedule for Filing Briefs and Documentary Evidence (Briefing Order).

Pursuant to my Briefing Order, the I.G. submitted a written argument (I.G. Br.) and four proposed exhibits (I.G. Exs. 1-4).  Petitioner filed a response (P. Br.) and one proposed exhibit (P. Ex. 1).  The I.G. filed a reply to Petitioner’s response (I.G. Reply).  Neither party objected to the proposed exhibits offered by the opposing party.  Therefore, in the absence of objections, I admit into evidence I.G. Exs. 1-4 and P. Ex. 1.

The parties disagree on whether a hearing is necessary to resolve this case.  Petitioner provides a list of four potential witnesses.  P. Br. at 2.  Petitioner did not offer as an exhibit the written direct testimony for any of these witnesses, as was required by the Briefing Order.  See Briefing Order at ¶ 7(c)(ii).  However, even if Petitioner had offered declarations from her proposed witnesses, I would not find that a hearing is necessary to receive their testimony.  I reach this conclusion because the facts which Petitioner seeks to establish by the proffered testimony are not material to any issue before me.  I therefore decline to convene a hearing and I decide this case based on the written record.

Page 3

II. Discussion

A. Petitioner must be excluded pursuant to section 1128(a)(1) of the Act because she was convicted of a criminal offense related to the delivery of an item or service under a state health care (Medicaid) program.2

The Act requires the Secretary of Health and Human Services (Secretary) to exclude from program participation any individual or entity that has been 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).  The Secretary has delegated this authority to the I.G.  42 C.F.R. § 1001.101(a).

1. Petitioner was convicted of a criminal offense.

Petitioner pled guilty to theft, and was sentenced to participation in a “Second Chance Probation” program by the Illinois state court.  I.G. Ex. 4 at 1.  The I.G. argues that Ms. Lekan was “convicted” of a criminal offense as that term is defined in section 1128(i) of the Act.  I.G. Br. at 4-8.  Petitioner concedes that she was convicted of a criminal offense.  P. Br. at 1.  Petitioner’s guilty plea and “Second Chance Probation” agreement withholding judgment each meets one of the definitions of “conviction” under the plain language of the Act.  See Act §§ 1128(i)(3) (guilty pleas); 1128(i)(4) (programs deferring adjudication or withholding judgment of conviction); see also 42 C.F.R. § 1001.2.  Accordingly, Petitioner was convicted of a criminal offense.

2. The criminal offense of which Petitioner was convicted was related to the delivery of an item or service under the Illinois Medicaid program.

The I.G. argues—and Petitioner does not dispute—that her conviction is related to the delivery of items or services under the Illinois Medicaid program.  I.G. Br. at 6-8; P. Br. at 2.  The term “related to” simply means that there must be a nexus or common sense connection between the underlying offense and the delivery of items or services under a protected program.  See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” in another part of section 1128 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 quotation marks omitted)).  In the present case, Petitioner was convicted of theft for submitting false timesheets in support of payments she received from the Illinois Medicaid program.  Appellate panels

Page 4

of the Departmental Appeals Board (DAB) have recognized that submission of false time sheets to a state Medicaid program to support payment for personal care services is a program-related crime.  See, e.g., Robert C. Greenwood, DAB No. 1423 (1993).

I therefore conclude that Ms. Lekan was convicted of a program-related crime for which section 1128(a)(1) mandates exclusion.  An exclusion brought under section 1128(a)(1) must be for a minimum period of five years.3  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).  Since the I.G. imposed the minimum mandatory exclusion period, the five-year period is reasonable as a matter of law.  Id.  Moreover, as I explain below, the regulations foreclose consideration of Petitioner’s arguments to the contrary.

3. Petitioner’s argument that her conviction was a “travesty” amounts to an impermissible collateral attack on her conviction which cannot be a basis to set aside her exclusion.

The regulations provide that, when appealing an exclusion, an excluded party may not collaterally attack the conviction or civil judgment underlying the exclusion:

When the exclusion is based on the existence of a criminal conviction or a civil judgment imposing liability by Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction, civil judgment or determination 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).  Petitioner argues that she should not be excluded because her conviction was “a travesty and abuse of the criminal justice system,” and because Illinois rebuffed her attempts at restitution.  P. Br. at 3.  Whatever the merits of these contentions, they must be raised, if at all, before the Illinois state courts.  Petitioner’s conviction for theft is a “prior determination where the facts were adjudicated and a final decision was made” within the meaning of 42 C.F.R. § 1001.2007(d).  Therefore, Petitioner may not challenge, and I may not review, the basis for her conviction in this proceeding.

Petitioner requests to present testimonial evidence at a hearing.  P. Br. at 2.  Petitioner did not offer the written direct testimony of her proposed witnesses.  See Briefing Order at ¶ 7(c)(ii).  However, she represents that the proposed testimony would be offered to show

Page 5

that Illinois DHS was aware of the conduct that led to Petitioner’s conviction since 2014; that DHS officials told Petitioner “not to worry about it”; and that Petitioner repeatedly offered to repay the money at issue.  P. Br. at 3.  Even if I accepted as true the representations in Petitioner’s Brief, I would not find Petitioner’s exclusion improper.  That is because it appears Petitioner intends to show by the testimony that Petitioner should not have been prosecuted, much less convicted.  As such, the testimony would represent a collateral attack on Petitioner’s conviction.  Accordingly, the proffered testimony relates entirely to an issue that the regulations declare to be irrelevant as a matter of law.  For that reason, I will not convene a hearing to take the testimony of Petitioner’s proposed witnesses.

B. Petitioner’s exclusion is effective December 20, 2017, 20 days from the date of the notice of exclusion.

Petitioner also argues that, if she must be excluded, the exclusion should begin to run when Illinois authorities first learned of her mistake.  P. Br. at 3.  Appellate panels of the DAB have long rejected arguments such as Petitioner’s.  Where, as here, the I.G. imposes an exclusion for the mandatory minimum period of five years pursuant to section 1128(a) of the Act, my review is strictly limited to the issue of whether there is a basis for exclusion.  42 C.F.R. § 1001.2007(a)(1)-(2).  For that reason, in interpreting 42 C.F.R. § 1001.2002(b), appellate panels of the DAB have held that neither they nor administrative law judges of the Civil Remedies Division have authority to change the effective date of an exclusion imposed by the Inspector General.  See, e.g., Shaikh M. Hasan, M.D., DAB No. 2648 at 7-13 (2015) (and cases cited therein).

Accordingly, as required by regulation, “[t]he exclusion will be effective 20 days from the date of the notice.”  42 C.F.R. § 1001.2002(b).  The I.G.’s notice letter to Petitioner was dated November 30, 2017; therefore, her exclusion is effective December 20, 2017.  See I.G. Ex. 1.

III. Conclusion

For the reasons explained above, I conclude that the I.G. properly excluded Ms. Lekan from participation in Medicare, Medicaid, and all federal health care programs, and I sustain the five-year exclusion, effective December 20, 2017.

• 1. The current version of the Social Security Act can be found at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.
• 2. My findings of fact/conclusions of law appear as lettered and numbered headings in bold italic type.
• 3. The period of exclusion may be reduced or waived if a federal health program administrator makes a request that is approved by the Secretary under section 1128(c)(3)(B) of the Act.  As far as the record reveals, there has been no such waiver request in this case.