Rosa Velia Serrano, DAB CR5170 (2018)

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Rosa Velia Serrano, from participating in Medicare, Medicaid, or other federally funded health care programs for a period of at least 25 years.

I.  Background

I held a pre-hearing conference in this case and issued an initial order that established a schedule for the parties to file briefs and exhibits.  I directed the I.G. to file his brief and proposed exhibits first and I directed Petitioner to file her brief and proposed exhibits subsequently.  However, on April 28, 2018, Petitioner filed a brief before the I.G. filed his brief and proposed exhibits.  She filed no proposed exhibits.  I gave Petitioner a second bite at the apple, extending to her the opportunity to file a reply to the I.G.’s eventual submission in order to assure that Petitioner had the opportunity to respond to whatever arguments the I.G. might make.

Petitioner then moved to extend her deadline by 90 days, asserting that her conviction was under appeal and requesting the extension in order that her appeal might be resolved. 

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I denied her motion.  The I.G. filed his pre-hearing exchange, which included a brief plus four proposed exhibits that the I.G. identified as I.G. Ex. 1-I.G. Ex. 4.  Petitioner then moved again for an extension of time but also filed a reply to the I.G.’s submission.

I deny Petitioner’s second motion for an extension.  Petitioner has offered no good cause for an extension of time within which to file a brief or exhibits.  Her principal argument is that her criminal conviction presently is being appealed and that she is awaiting a decision that she hopes will be favorable to her.  However, she has offered nothing to show why I should delay adjudicating this case pending the outcome of her appeal.

I receive I.G. Ex. 1-I.G. Ex. 4 into the record.

II.  Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether the law mandates that the I.G. exclude Petitioner and whether the length of the exclusion imposed by the I.G.  – 25 years – is reasonable.

B. Findings of Fact and Conclusions of Law

On January 26, 2017, Petitioner was indicted in a state proceeding under Texas law with one count of Medicaid fraud and one count of theft, both in the aggregate amount of between $20,000 and $100,000.  She was charged with engaging in criminal conduct over a period of more than four years, from January 10, 2012 until February 19, 2016.  I.G. Ex. 2; I.G. Ex. 4 at 9.  Petitioner was subsequently convicted by a jury and sentenced to 11 years’ incarceration.  I.G. Ex. 3; I.G. Ex. 4 at 9-10.

The evidence plainly establishes a basis for the I.G. to exclude Petitioner pursuant to the requirements of section 1128(a)(1) of the Social Security Act (Act).  This section mandates the exclusion of anyone who is convicted of a criminal offense related to the delivery of an item or service pursuant to Medicare or a state Medicaid program.  Here, Petitioner was charged with, and convicted of, fraud against Texas’ Medicaid program.  That crime is not only related to Medicaid items or services but it directly implicates those items or services.

Petitioner does not deny that she was convicted but she contends that her conviction is invalid.  She has appealed her conviction to a Texas appellate court.  I.G. Ex. 4.  Evidently, Petitioner also has filed a complaint in a federal court alleging that Texas has no jurisdiction over possible crimes committed against that state’s Medicaid program.  However, neither the state appeal nor Petitioner’s apparent federal appeal has been decided in Petitioner’s favor and until and unless she receives a favorable outcome she remains convicted under Texas law of Medicaid fraud.

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The pendency of an appeal does not stay the I.G.’s authority to impose an exclusion based on a conviction.  That authority exists whether or not an appeal is pending from the conviction.  Act § 1128(i)(1).  The I.G.’s authority to exclude potentially could be affected by the final outcome of an appeal but that authority exists now, despite Petitioner’s apparent multiple appeals of her conviction.

Exclusions imposed pursuant to section 1128(a)(1) of the Act must be for a minimum period of five years.  The I.G. may exclude for more than five years, as he did in this case, but only if there exists evidence relating to defined aggravating factors that is not offset by evidence relating to defined mitigating factors.  42 C.F.R. § 1001.102.  Here, the I.G. offered evidence establishing the presence of two aggravating factors.  There is no evidence that establishes a mitigating factor.

The aggravating factors are these.  First, Petitioner committed Medicaid fraud over a period of more than a year (four years in this case).  42 C.F.R. § 1001.102(b)(2).  Second, Petitioner was sentenced to incarceration (11 years).  42 C.F.R. § 1001.102(b)(5).

The remedial purpose of any exclusion that is imposed pursuant to section 1128 of the Act is to protect Medicare and other federally funded health care programs and their beneficiaries and recipients from untrustworthy individuals.  There is no formula for deciding how long an exclusion should be based on the presence of aggravating evidence.  Rather, the regulatory factors function as rules of evidence, establishing what is relevant to determine untrustworthiness.

In this case, the evidence establishes that Petitioner is highly untrustworthy.  An exclusion of at least 25 years is merited both by the protracted period of Petitioner’s criminal conduct – a little over four years – and by the very lengthy prison sentence that she received.  For these reasons I sustain the I.G.’s exclusion determination.