Dante Charles, DAB CR5156 (2018)

DECISION

Petitioner, Dante Charles, pled guilty to one felony count of Medicaid fraud. Based on his guilty plea, the Inspector General (IG) has excluded him 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). Petitioner appeals the exclusion. For the reasons discussed below, I find that the IG properly excluded Petitioner Charles and that the statute mandates a minimum five-year exclusion.

Background

In a letter dated January 31, 2018, the IG notified Petitioner that he was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five years because he had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. The letter explained that section 1128(a)(1) of the Act authorizes the exclusion. IG Ex. 1.

Petitioner timely requested review.

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The IG submitted a written argument (IG Br.) and four exhibits (IG Exs. 1-4). Petitioner responded to the IG's brief (P. Br.). The IG submitted a reply brief.

In the absence of any objections, I admit into evidence IG Exs. 1-4.

The parties agree that an in-person hearing is not necessary. IG Br. at 6; P. Br. at 3.

Discussion

Petitioner must be excluded from program participation for a minimum of five years because he was convicted of a criminal offense related to the delivery of an item or service under a state health care program. Act § 1128(a)(1).*

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

The facts here are spotty. Petitioner was charged with one felony count of submitting false claims to the Georgia Medicaid program, obtaining more than $250,000 for services he claimed to have provided but did not provide. IG Ex. 2 at 2. He pled guilty, and, on September 27, 2017, the state court accepted his plea under Georgia's First Offenders Act. The court sentenced him to ten years' probation and ordered him to pay $175,000 in restitution. IG Ex. 3.

Petitioner argues that he was not convicted under Georgia law. Under the First Offenders Act, Ga. Code § 42-8-60, a criminal defendant may plead guilty (or nolo contendere); the court then defers adjudicating his guilt. If the defendant successfully completes his sentence, he will not be considered convicted under Georgia law.

But Petitioner was "convicted" within the meaning of section 1128(a)(1). The statute and regulations provide that a person is "convicted" when "a judgment of conviction has been entered" regardless of whether that judgment has been (or could be) expunged or otherwise removed. Act § 1128(i)(1); 42 C.F.R. § 1001.2(a)(2). Individuals who participate in "deferred adjudication or other program or arrangement where judgment of conviction has been withheld" are also "convicted" within the meaning of the statute. Act § 1128(i)(4); 42 C.F.R. § 1001.2(d). Based on these provisions, the Departmental Appeals Board characterizes as "well established" the principle that a "conviction" includes "diverted, deferred and expunged convictions regardless of whether state law

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treats such actions as a conviction." Henry L. Gupton, DAB No. 2058 at 8 (2007), aff'd sub nom. Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).

Petitioner was thus convicted within the meaning of the Act. Because his conviction was directly related to the delivery of services under a state health care program (Medicaid), he is subject to exclusion. An exclusion brought under section 1128(a)(1) must be for a minimum period of five years. Act § 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).

Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs, and I sustain the five-year exclusion.

• *. I make this one finding of fact/conclusion of law.