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                              Melissa Marie Rish, DAB CR5785 (2020)
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Melissa Marie Rish, DAB CR5785 (2020)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Melissa Marie Rish
(OI File No. H-20-40115-9),
Petitioner,

v.

The Inspector General.
Docket No. C-20-740Decision No. CR5785December 23, 2020

        
              
    

      DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, Melissa Marie Rish, from participating in Medicare, state Medicaid programs, and other federally funded health care programs for a minimum of five years.  Section 1128(a)(1) of the Social Security Act (Act) mandates Petitioner’s exclusion.

I. Background

The IG filed a brief and seven exhibits, identified as IG Ex. 1-IG Ex. 7.  Petitioner filed a brief and one exhibit, identified as P. Ex. 1.  I receive the parties’ exhibits into evidence.1
  Neither party requested to present evidence in person.  I decide this case based on the parties’ written exchanges.

II. Issue, Findings of Fact and Conclusions of Law

**A.  Issue**

The issue is whether section 1128(a)(1) of the Act mandates Petitioner’s exclusion.

Page 2

**B. Findings of Fact and Conclusions of Law**

Petitioner is a speech pathologist.  On January 13, 2020, she pled guilty in a Colorado state court to one count of theft.  IG Ex. 2.

Petitioner entered her plea to resolve a criminal complaint charging her with theft from Colorado’s Medicaid program.  She was charged with submitting false claims to that program for speech therapy home visits that she did not provide.  IG Ex. 3 at 5.

Section 1128(a)(1) of the Act mandates the exclusion of any individual who is convicted of a criminal offense relating to the delivery of an item or service under Medicare or a state Medicaid program.  The facts of this case establish that Petitioner was convicted of such an offense.  Consequently, Petitioner must be excluded.

The crime of which Petitioner was convicted plainly related to the delivery of Colorado Medicaid items or services.  Theft of program funds through the filing of fraudulent Medicaid claims – as occurred here – is the essence of a section 1128(a)(1) offense.  It relates directly to Medicaid items or services for two reasons:  first, because the crime springs from purported Medicaid services that were not provided as claimed; and second, because the crime robs the Medicaid program of funds that could have been used to reimburse legitimately provided items or services.

Petitioner concedes that she was convicted of a crime.  However, she denies that her conviction was for a crime subsumed by section 1128(a)(1).  She contends that the evidence submitted by the IG proves only that she was convicted of theft under Colorado law, but not of the crime of theft of Medicaid program funds.  Consequently, according to Petitioner, the facts fail to establish the elements of a section 1128(a)(1) crime.  Petitioner’s brief at 2-3.

This argument relies on the fact that she pled guilty pursuant to a statute that makes theft generally a crime but that does not contain language addressing theft of Medicaid program funds.  Additionally, Petitioner asserts that the specific charge of theft to which she pled guilty alleges only that Petitioner obtained money from the State of Colorado Department of Health Care Policy and Financing (HCPF) without authorization.  IG Ex. 6 at 1.  This charge, according to Petitioner, is insufficiently specific to implicate Medicaid items or services in Petitioner’s crime.

These arguments dodge the reality of Petitioner’s conviction.  The criminal charges against Petitioner spring directly from charging documents that include an admission by Petitioner that she filed false Medicaid claims.  She signed a stipulation in which she admitted that from or around March 2015 through July 2016 she fraudulently billed

Page 3

Colorado’s Medicaid program for 58 home visits, in her capacity as a speech pathologist, that did not occur.  IG Ex. 3 at 5, 11.

Form does not trump substance in this case.  Petitioner’s express admission of guilt makes it obvious that she pled guilty to defrauding the Colorado Medicaid program even if the statute defining her crime or the criminal charges filed against her do not contain the phrase “Medicaid fraud.”

Furthermore, there is no dispute that HCPF is the Colorado government agency that administers that state’s Medicaid program.  The charge that Petitioner unlawfully obtained money from that agency without authorization easily leads to the inference that she stole Medicaid program funds.  Any ambiguity in the charge is resolved completely by the documents which are the basis for that charge.  IG Ex. 3.

The minimum period of exclusion for an exclusion imposed pursuant to section 1128(a)(1) of the Act is five years.  Act § 1128(c)(3)(B).  That is what the IG imposed in this case.  Consequently, there is no issue as to the reasonableness of the length of the exclusion period.


          /s/
        Steven T. Kessel

                      Administrative Law Judge
      1. I grant the IG’s motion to redact certain patient-specific information from IG Ex. 3. back to note 1 Back to top
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