Devon Rambert-Hairston, DAB CR6063 (2022)

DECISION

The Inspector General of the U.S. Department of Health and Human Services (IG) excluded Petitioner Devon Rambert-Hairston (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for 13 years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(i)).  Petitioner challenges the exclusion.  For the reasons stated below, it is concluded that the IG had a basis for excluding Petitioner from program participation and that the 13-year exclusion period is reasonable.  The IG’s exclusion determination is affirmed.

I.  Background and Procedural History

By letter dated September 30, 2021, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal healthcare programs under section 1128(a)(1) of the Act for a minimum of 13 years.  IG Exhibit (IG Ex.) 1 at 1.  The IG imposed the exclusion due to Petitioner’s felony conviction in the United States District Court,

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Western District of North Carolina (District Court) for a criminal offense related to the delivery of items or services under the Medicare or State health care program.  The IG notified Petitioner that a 13-year exclusion was imposed because Petitioner’s conviction resulted in a financial loss to a government agency or program of $50,000 or more.  In addition, the sentence imposed by the District Court included incarceration.  IG Ex. 1 at 1-2.

On October 6, 2021, Petitioner timely sought a hearing before an administrative law judge (ALJ).  On October 13, 2021, at my direction, the Civil Remedies Division (CRD) issued an acknowledgement letter, along with CRD Procedures and a non-discrimination notice.

A prehearing conference was held, by telephone, on November 16, 2021.  On the day of the prehearing conference, Petitioner appeared pro se.  Candace M. Ashford, Senior Counsel, represented the IG.  On the same date, Petitioner filed an informal brief (P. Br.), an exhibit list, and six exhibits (P. Exs. 1-6).

On January 6, 2022, the IG submitted an informal brief (IG Br.) and three proposed exhibits (IG. Exs. 1-3).  On January 17, 2022, Petitioner submitted her supplementary submission including a brief, an amended exhibit list, and 11 additional proposed exhibits (P. Exs. 7-17).  The IG submitted a reply brief on February 24, 2022.

II.  Admission of Exhibits and Decision on the Record

The parties agree that an in-person hearing is not necessary to resolve this matter.  IG Br. at 9; P. Br. at 2.  As such, this matter will be decided on the written record.

The IG did not object to Petitioner’s exhibits; therefore, Petitioner’s exhibits 1-17 are admitted into evidence.  Similarly, Petitioner did not object to the IG’s exhibits; the IG’s exhibits 1-3 are therefore admitted into evidence.

III.  Issues

The issue to be decided is whether the IG has a basis to exclude Petitioner from participation in Medicaid, Medicare, and any federal healthcare programs and, if so, whether the imposed 13-year exclusion imposed by the IG is reasonable.

IV.  Jurisdiction

Jurisdiction is provided under 42 C.F.R. §§ 1001.2007(a), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

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V.  Findings of Fact

Petitioner was licensed as a nurse practitioner through the North Carolina Board of Nursing from September 2010 through at least August 2018.  IG Ex. 2 at 1.  She was enrolled as a rendering provider with the North Carolina Medicaid Program since October 2011.  IG Ex. 2 at 1.

In 2015, Petitioner was employed at Taylor Behavior Health Center (TBHC), a provider of mental and behavioral health services and after school programs in Monroe, North Carolina.  IG Ex. 2 at 1-2.  Petitioner served as the clinical director of TBHC from August 2016 to February 2017.  P. Ex. 16 at 3.  Petitioner was enrolled as a rendering provider and was a billing provider.  IG Ex. 2 at 1-3.  All billing and rendering providers must certify that they will only bill the government for services actually rendered.  IG Ex. 2 at 2.

Beginning in or about July 2015, TBHC’s co-owners, T.G.T. and J.T., engaged in a scheme to defraud Medicaid by submitting false and fraudulent reimbursement claims and misrepresenting the services provided.  IG Ex. 2 at 2.  In furtherance of the scheme to defraud, Petitioner reviewed and signed off on progress notes reflecting behavioral health services provided by TBHC to Medicaid beneficiaries.  IG Ex. 2 at 2-3; P. Ex. 16 at 3.  Petitioner did not personally provide medical services and she rarely interacted with the beneficiaries.  IG Ex. 2 at 2; IG Br. at 2.  Many of the beneficiaries did not receive services from Petitioner or TBHC, and those who did receive services did so from a licensed marriage and family therapist, who was precluded by Medicaid regulations from rendering the evaluation and management services claimed.  IG Ex. 2 at 3.

In or around August 2016, Petitioner agreed to allow T.G.T. and J.T. to submit Medicaid claims using her National Provider Identifier (NPI) number as the billing provider until other entities owned by T.G.T. and J.T. could be enrolled as Medicaid providers.  IG Ex. 2 at 3; P. Ex. 16 at 3.  Between September 2016 and February 2017, approximately $1.3 million in fraudulent claims were submitted to Medicare under Petitioner’s NPI number as both the rendering and billing provider.  IG Ex. 2 at 3.  Medicaid wired at least $813,726 directly into Petitioner’s State Employees Credit Union (SECU) account.  IG Ex. 2 at 2.  Petitioner transferred at least $751,000 of the funds to T.G.T. and J.T. and kept the remainder.  IG Ex. 2 at 3.  On several occasions, Petitioner visited SECU with T.G.T. to transfer funds from her account to his.  IG Ex. 2 at 4.  She also transferred the funds via cash withdrawals and cashier’s checks.  IG Ex. 2 at 4.

On March 28, 2019, the United States Attorney in the Western District of North Carolina charged Petitioner with one count of Money Laundering Conspiracy in violation of 18 U.S.C. § 1956(h).  IG Ex. 2 at 1, 5.  Petitioner entered into a plea agreement and pleaded guilty to one count of Money Laundering Conspiracy.  IG Ex. 3 at 1.  The District Court accepted Petitioner’s plea and she was sentenced to 12 months and one day incarceration,

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followed by one year of supervised release, and she was ordered to pay $813,726, jointly and severally, in restitution.  IG Ex. 3 at 2-5.

Petitioner appealed her conviction to the United States Court of Appeals for the Fourth Circuit, claiming wrongful conviction and ineffective assistance of counsel.  P. Ex. 16 at 7; P. Br. at 3-5.  Petitioner’s appeal was denied on October 6, 2020.  P. Ex. 16 at 7.

VI.  Legal Authorities

The Secretary of the U.S. Department of Health and Human Services shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII of the Act or any State health care program.  42 C.F.R. § 1001.101(a).  The Act requires a minimum exclusion period of five years when the exclusion is mandated under 42 U.S.C. § 1320a-7(a).  42 U.S.C. § 1320a‑7(c)(3)(B); 42 C.F.R. § 1001.102(a)

In exclusion cases, the IG has the burden of proving the basis for the exclusion and the existence of any aggravating factors.  42 C.F.R. §§ 1005.15(b)(2), 1001.102(b).  The standard of proof is a preponderance of the evidence, which means a fact is proven if the evidence shows that it is more likely true than not true.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  In this case, the IG must prove that Petitioner was convicted of an offense related to the delivery of a health care item or service under the Medicare or a state healthcare program.

An excluded individual may request a hearing before an ALJ to determine whether the IG had a legal basis for imposing the exclusion and whether an exclusion, longer than the required minimum period, is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a).

VII.  Analysis and Conclusions of Law

1. Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicaid program, which subjects her to a mandatory exclusion from all federal health care programs for a minimum of five years.

In order to prevail, the IG must prove, by a preponderance of the evidence, that Petitioner was convicted of a criminal offense related to the delivery of a health care item or service.  An individual is considered convicted of a criminal offense “when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court.”  Act § 1128(i)(3) (42 U.S.C. § 1320a-7(i)(3)); see also 42 C.F.R. § 1001.2 (subparagraph (c) under the definition of “Convicted”).  Petitioner pleaded guilty to

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Money Laundering Conspiracy.  The District Court accepted Petitioner’s guilty plea and sentenced her to 12 months and one day in prison.  She was also ordered to pay $813,726 in restitution.  IG Ex. 3.  Accordingly, Petitioner has been “convicted” as defined by the regulations.  Petitioner does not dispute that she was convicted of a criminal offense.  P. Br. at 1; P. Supp. Br. at 1.

To prove that Petitioner’s conviction was related to the delivery of a health care item or service, the IG must show that there is a nexus between the offense and the delivery of a health care item or service.  The Departmental Appeals Board (Board) “has repeatedly held that the phrase ‘related to’ within the context of section 1128(a)(1) requires only that a common‑sense nexus exists between the offense and the delivery of a health care item or service under the state healthcare program.”  Summit S. Shah, M.D., DAB No. 2836 at 6 (2017) (citing cases).

The IG argues that the underlying conduct which caused Petitioner’s conviction involved the submission of false claims to Medicaid.  IG Br. at 4.  The money laundered by Petitioner and her co-conspirators was obtained as a direct result of those fraudulent claims.  IG Br. at 4.  Additionally, Petitioner and her co-conspirators used Petitioner’s NPI number as both the rendering and billing provider for services that she did not provide.  IG Ex. 2 at 3.  The fraudulent billing practices of Petitioner and her co-conspirators resulted in Medicaid wiring at least $813,726 into Petitioner’s SECU account.  IG Ex. 2 at 3.  The IG has proven, through documentary evidence, that Petitioner’s conviction is related to the delivery of a health care item or service under a state healthcare program.

2. Petitioner’s arguments amount to a collateral attack on the underlying conviction that is impermissible under the regulations.

Petitioner does not dispute that she was convicted of Money Laundering Conspiracy, but she disputes the validity of her plea.  However, when an exclusion is based on a criminal conviction, an ALJ has no authority to review the basis for the conviction and Petitioner has no right to collaterally attack the conviction.

When the exclusion is based on the existence of a criminal conviction . . . the basis for the underlying conviction . . . 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 seemingly absolves herself of guilt by stating that she was “coerced and intimidated” into signing the plea agreement.  P. Supp. Br. at 2.  Petitioner argues that she was provided with ineffective counsel, was coerced into entering a plea, and that she committed the crime unknowingly and unintentionally.

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P. Br. and P. Supp. Br, passim. Notwithstanding Petitioner’s representations to the contrary, she signed the plea agreement, including the factual basis, and stipulated that she understood its contents.  IG Ex. 3 at 1; P. Ex. 16 at 5.  The core of Petitioner’s appeal of the exclusion is based on the argument that her guilty plea should be withdrawn.  However, the District Court’s acceptance of Petitioner’s guilty plea falls within the meaning of 42 C.F.R. § 1001.2007(d).  Therefore, Petitioner may not collaterally attack the underlying facts of the conviction in this forum.

3. The IG has identified two aggravating factors that support an exclusion beyond the five-year minimum.

Five years is the mandatory minimum for exclusions for any individual or entity convicted of a criminal offense for which exclusion is required by section 1128(a) of the Act.  42 C.F.R. § 1001.102(a).  The regulations permit the IG to impose a longer period of exclusion based on the presence of specified aggravating factors.  42 C.F.R. § 1001.102(b).

In this case, the IG relies on two aggravating factors to impose a 13-year exclusion:  1) Petitioner’s acts resulting in the conviction caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more; and 2) the sentence imposed by the court included incarceration.  IG Ex. 1 at 2; 42 C.F.R. § 1001.102(b)(1), (5).

Petitioner was court ordered to pay $813,726 in restitution to Medicaid.  IG Ex. 3 at 4-5.  It is important to note that Petitioner was found to be jointly and severally liable for the restitution.  IG Ex. 3 at 5.  As previously stated, Petitioner transferred $751,000 to owners T.G.T. and J.T. and kept the remaining funds.  Even giving consideration to only the money actually retained by Petitioner, the funds still amount to a loss of more than $50,000.  42 C.F.R. § 1001.102(b)(1) (financial loss of $50,000 or more and “entire amount of financial loss” considered).  Additionally, the District Court sentenced Petitioner to twelve months and one day of incarceration with one year of supervised release.  IG Ex. 3 at 2.  Thus, the IG has proven the existence of two aggravating factors.

The IG has broad discretion in determining the length of an exclusion, based on the IG's "vast experience" in implementing exclusions.  Craig Richard Wilder, DAB No. 2416 at 8 (2011) (citing 57 Fed. Reg. 3298, 3321 (1992)).  The regulations provide that the IG’s proposed exclusion must be upheld as long as the length of exclusion is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  An ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances.  An ALJ may not substitute his or her judgment for that of the IG or determine what period might be “better.”  Friedman v. Sebelius, 755 F. Supp.2d 98 (D.D.C. 2010).  If the IG considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist,

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then the ALJ may decide as to the appropriate extension of the period of exclusion beyond the minimum.  John (Juan) Urquijo, DAB No. 1735 (2000).  Alternatively, the Board suggested that when an aggravating factor considered by the IG is not proved before the ALJ, then some downward adjustment of exclusionary period should be expected absent some circumstances that indicate no such adjustment is appropriate.  Gary Alan Katz, R.Ph., DAB No. 1842 (2002).

The Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for the court to consider.  42 C.F.R. § 1005.15(b)(1).  In this case, Petitioner’s arguments rely on the contention that the plea in her underlying case was unconstitutional.  She does not directly contest any aggravating factors, nor does she offer any mitigating factors.  P. Br. and P. Supp. Br., passim.  Petitioner briefly characterizes her cooperation with the FBI stating that she “provided a significant amount of documents and emails to the agents . . . .”  P. Ex. 16 at 3.  However, to establish this mitigating factor, a petitioner must show their cooperation with federal or state officials resulted in others being convicted or excluded, additional cases being investigated, or civil money penalties being imposed against others.  42 C.F.R. § 1001.201(b)(3)(iii)(A)-(C).  Petitioner did not provide evidence that her cooperation resulted in others being convicted or excluded, other cases being investigated, or civil monetary penalties imposed.  The record supports the IG’s imposition of two aggravating factors and provides no evidence of mitigating factors.

I do not have the authority to substitute my own judgment for that of the IG, nor to impose a period of exclusion that seems more reasonable to me.  Juan de Leon, Jr., DAB No. 2533 at 4 (2013) (citing Wilder, DAB No. 2416 at 8).  Therefore, based on the evidence before me, I find that the IG’s determination of a 13-year exclusion is reasonable.

VIII.  Conclusion

The IG has proven by a preponderance of the evidence that Petitioner was 1) convicted of a criminal offense; and 2) the offense was in connection with the delivery of a health care item or service.  In addition, the IG proved that there are two aggravating factors which support an exclusion beyond the five-year mandatory minimum.  Therefore, the 13-year exclusion imposed by the IG is AFFIRMED.