Robbie Lee Robinson, DAB CR6101 (2022)

DECISION

Petitioner, Robbie Lee Robinson, was a certified nurse practitioner and hospitalist, licensed to practice in Iowa.  He was convicted of obtaining a prescription drug by fraud, tampering with records, and fraudulent practice in the third degree, all misdemeanors.  Based on his conviction, the Inspector General (IG) has excluded him, for a minimum of 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 Robinson and that the statute mandates a minimum five-year exclusion.

Background

In a letter dated December 30, 2021, 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.

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Petitioner timely requested review.

The IG has submitted a written brief (IG Br.) with seven exhibits (IG Exs. 1-7).  Petitioner has submitted his own brief (P. Br.), with three exhibits (P. Exs. 1-3).  The IG submitted a reply (IG Reply).

The IG objects to my admitting P. Exs. 1 and 3, arguing that they are irrelevant because they relate to Count 3 of the information, and the IG bases this exclusion on Count 12.  IG Reply at 4-5.  I am puzzled by the IG's argument.  I did not see any suggestion in the notice letter or the IG's initial brief that the exclusion was based on a single count.  As discussed below, any one of the counts on which Petitioner was convicted would sustain an exclusion under section 1128(a)(1).  In any event, it is well-settled that I may consider extrinsic evidence that might explain the circumstances underlying a conviction.  Evidence of crimes, wrongs, or acts other than those at issue is admissible to show motive, opportunity, intent, knowledge, preparation, identity, lack of mistake, or existence of a scheme.  42 C.F.R. § 1005.17(g); see Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000), aff'd, Patel v. Thompson, 319 F.3d. 1317 (11th Cir. 2003).  I therefore find that this evidence of prescription drug fraud is relevant.

The IG also complains that the documents are incomplete and not properly authenticated.  I may consider those objections in determining what, if any, weight to give the documents but find them admissible.

In the absence of any objections, I admit into evidence IG Exs. 1-7.  I also admit P. Exs. 1-3.

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

Discussion

1. 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 Medicaid, a state healthcare program.  Act § 1128(a)(1).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 healthcare program.  42 C.F.R. § 1001.101(a).

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Petitioner, Robbie Lee Robinson, was a certified nurse practitioner, licensed in Iowa.  IG Ex. 4 at 2.  His former girlfriend was a Medicaid beneficiary.  She was not Petitioner's patient and had no medical connection to him.  When her primary care physician questioned her about multiple new medications purportedly prescribed for her, she learned that her former boyfriend (Petitioner) had written drug prescriptions, using her name, for drugs she had never received (Bactrim, Symbicort, Clindamycin, Levaquin, Prednisone, Flexeril, and Buspar).  She complained to the Office of the Inspector General for the Department of Health and Human Services, and that office forwarded the complaint to the County Attorney's office in Woodbury, Iowa.  IG Ex. 2 at 3-4.

In a complaint and affidavit, dated November 3, 2020, Petitioner Robinson was charged with ten counts of obtaining a prescription drug by fraud (Iowa Code sections 155A.23(1) and 155A.24(1)(b)), one count of tampering with records (Iowa Code section 715A.5), and one count of fraudulent practice in the third degree (Iowa Code sections 249A.50, 714.8(10), and 714.11(c)).  IG Ex. 2 at 1-2.  The County Attorney's office subsequently filed a Trial Information listing the same charges, which a district associate judge approved, concluding that the supporting evidence, if unexplained, was sufficient to warrant conviction by a trial jury.  IG Ex. 3.

On March 23, 2021, Petitioner Robinson pleaded guilty to:

• One count of tampering with records (Count 11), conceding that he wrote a prescription for Bactrim for his girlfriend.  In order to conceal that he had done so, he did not create a medical record.  IG Ex. 4 at 4.
• One count of fraudulent practice in the third degree (Count 12), conceding that he wrote a prescription for Prednisone for his girlfriend, which he used.  It was billed to her medical insurance.  IG Ex. 5 at 4.
• One count of obtaining a prescription drug by fraud (Count 3), conceding that, without the authority to do so, he wrote a prescription for Clindamycin for his girlfriend.  IG Ex. 6 at 4.

Petitioner was sentenced to two years probation on each count (to run concurrently) and ordered to pay $2,140 in civil penalties.  IG Ex. 7.

There is no doubt that Petitioner's conviction subjects him to mandatory exclusion.  His guilty plea establishes that:

• He fraudulently wrote at least one prescription (for Prednisone) for his girlfriend, who was insured by the Medicaid program, and her insurance was billed for it.  The prescription was for him, and he used it.  IG Ex. 5 at 4.

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• In order to conceal his crime, he did not create a medical record for the prescription.  IG Ex. 4 at 4.
• He "obtained assistance or payments for medical assistance" by knowingly making false statements.  IG Ex. 3 at 3; IG Ex. 5 at 2.

Petitioner's crimes were thus related to a state healthcare program, and he must be excluded from program participation for a minimum of five years.

Petitioner, however, argues that his convictions were not related to the delivery of an item or service under Medicare or a state healthcare program.  P. Br. at 4.  Petitioner concedes that he called in prescriptions for Clindamycin (on May 17, 2020) and Prednisone (on February 27, 2020) and produces pharmacy records that purport to show that the drugs were not dispensed.  P. Exs. 1-3.  The telephone prescription forms are not particularly compelling.  On both, the "time out" space is left blank.  P. Exs. 1, 2.  But, without additional foundation, this does not establish that the drug was not dispensed.  On the Clindamycin form, the spaces "phoned by" and "time in" are also left blank.  P. Ex. 1.  An additional record indicates that, although the prescription for Clindamycin was filled, it was "not sold."  P. Ex. 3.  Petitioner produces no comparable record for the Prednisone.

That the documents are not particularly persuasive is ultimately irrelevant, however, because Petitioner was, in fact, convicted of Medicaid fraud.  Iowa Code section 249A.50 prohibits Medicaid fraud.  When he pleaded guilty to violating that section, he admitted that, between February 4, 2019, and July 4, 2020, he:  "obtained assistance or payments for medical assistance by knowingly making or causing to be made, a false statement or a misrepresentation of a material fact or by knowingly failing to disclose a material fact required of an applicant for aid under the provisions of this chapter."  IG Ex. 5 at 2 (emphasis added).

Having pleaded guilty to Medicaid fraud, Petitioner may not use this forum to argue that he did not, in fact, commit Medicaid fraud.  The regulations preclude such a collateral attack on an underlying conviction:

When the exclusion is based on the existence of 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 . . . 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); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).

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Moreover, as the Departmental Appeals Board has repeatedly explained, section 1128(a)(1) covers offenses "related to" the delivery of an item or service under Medicare or a state health care program; it does not require that the offense result in the actual delivery of an item or service.  Gregory J. Salko, M.D., DAB No. 2437 at 3 (2012) (citing Timothy Wayne Hensley, DAB No. 2044 at 6 (2006)); see Kimbrell Colburn, DAB No. 2683 (2016) (finding that falsely representing that a medical provider has delivered a covered item increases the risk of false, fraudulent, or otherwise improper billing and is thus "intimately related to the delivery of a health care item or service" under Medicare).

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. § 1001.2007(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.

1. I make this one finding of fact/conclusion of law.
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