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                              Jennifer Mae Gilpatrick, CR6327 (2023)
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Jennifer Mae Gilpatrick, CR6327 (2023)








  
  
    

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





Jennifer Mae Gilpatrick
(OIG File No. B-22-41410-9)
Petitioner,

v.

The Inspector General.
Docket No. C-23-379Decision No. CR6327August 3, 2023

        
              
    

      DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, Jennifer Mae Gilpatrick, from participating in Medicare, State Medicaid, and other federally funded healthcare programs for a minimum period of five years.  Section 1128(a)(1) of the Social Security Act (Act) mandates Petitioner’s exclusion.

I. Background

Petitioner requested a hearing to challenge her exclusion.  Pursuant to my pre-hearing order the IG filed a brief (IG Brief) and six proposed exhibits, identified as IG Ex. 1-IG Ex. 6.  Petitioner filed a brief (Petitioner’s Brief) and two proposed exhibits, identified as P. Ex. 1-P. Ex. 2.  The IG then filed a reply brief (IG Reply).

Neither party requested that I hold an in-person hearing.  I decide this case based on the parties’ written submissions.  Neither party objected to my receiving exhibits.  I receive IG Ex. 1-IG Ex. 6 and P. Ex. 1-P. Ex. 2.

Page 2

II.  Issue**, Findings of Fact and Conclusions of Law**

A.  Issue

The issue is whether Petitioner was convicted of a crime as is defined by section 1128(a)(1) of the Act.  There is no issue concerning the length of Petitioner’s exclusion for reasons that I explain below.

B.  Findings of Fact and Conclusions of Law

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 health care program (Medicaid).  The section’s mandatory language leaves the IG without discretion if a basis exists for an exclusion.  There is a minimum mandatory exclusion period of at least five years for any exclusion imposed pursuant to section 1128(a)(1).  Act, § 1128(c)(3)(B).

Petitioner was convicted of a section 1128(a)(1) offense.

On August 16, 2022, in an Arizona court, Petitioner pled guilty to, and was found guilty of, having committed the misdemeanor offense of Deceptive Business Practices.  IG Ex. 3; IG Ex. 4.  Her sentence included a period of probation and restitution to be paid to the Arizona Health Care Cost Containment System, Arizona’s State Medicaid program.  IG Ex. 4 at 2.  Petitioner’s conviction was predicated on the allegation that she falsely claimed hours worked for an entity that provided home and community-based services for individuals with special needs.  IG Ex. 5 at 2.

Petitioner unquestionably was convicted of a crime that related to the delivery of Arizona Medicaid items or services, because it was a form of fraud intended to mulct payments from that program for services allegedly provided to Medicaid that were never delivered by Petitioner.  Petitioner’s crime directly targeted Medicaid.  One need not strain to look for a “nexus” to a health care item or service in deciding whether a crime falls within the purview of section 1128(a) where that crime directly targets Medicare or a Medicaid program’s funds.

The reasonableness of the length of Petitioner’s exclusion is not at issue because the IG excluded Petitioner for the minimum period mandated for exclusions imposed pursuant to section 1128(a)(1).  Act, § 1128(c)(3)(B).

I have considered Petitioner’s arguments in opposition to the IG’s exclusion determination and find them to be without merit.

Page 3

Much of Petitioner’s argument consists of her assertion that she is not in fact guilty of the crime of which she was convicted.  Petitioner’s Brief at 2-3.  She contends that she lacked criminal culpability and that the fraud activity of which she was charged was committed by another individual.  She contends that, in fact, she received no benefit from Arizona’s Medicaid program.  *Id.*

These contentions are an attempt by Petitioner to litigate the elements of her conviction in this forum.  I have no authority to consider them.

When the exclusion is based on the existence of a criminal conviction . . . imposing liability by Federal, State or local court . . . the basis for the underlying conviction . . . is not reviewable and the [excluded] individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d).

Noting that she was convicted of a misdemeanor and not a felony, Petitioner argues that if she was convicted of an excludable crime, any determination to exclude her must be governed by the permissive exclusion authority stated at section 1128(b)(1) of the Act and not by the mandatory exclusion requirement of section 1128(a)(1).  Petitioner’s Brief at 3.  As support, Petitioner relies on language in section 1128(b)(1) that permits the IG to exclude an individual who is convicted of a misdemeanor crime in connection with the delivery of a health care item or service.

Section 1128(b)(1) of the Act provides no support for Petitioner’s argument.  When read with section 1128(a)(1) it is evident that section 1128(b)(1) applies to misdemeanor offenses committed in connection with health care items or services other than those reimbursed for by Medicare or by a State Medicaid program.  The specific language of section 1128(a)(1) supersedes the more general language of section 1128(b)(1).  *Nenice Marie Andrews*, DAB No. 2656 at 5 (2015); *Scott D. Augustine*, DAB No. 2043 at 13 (2006); *Boris Lipovsky, M.D.,*DAB No. 1363 at 8-9 (1992).

Page 4

Finally, Petitioner contends that there are mitigating circumstances in her case that justify reduction of the length of her exclusion.  Petitioner’s Brief at 3-4.  However, and as I have explained, I may not reduce the length of Petitioner’s exclusion below the five-year minimum mandatory exclusion period.  Consequently, the presence of mitigating circumstances is irrelevant.
  
          /s/
        Steven T. Kessel

                      Administrative Law Judge Back to top
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