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                              2022
                              Tomika Kimyata Lynette Jackson, DAB CR6174 (2022)
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Tomika Kimyata Lynette Jackson, DAB CR6174 (2022)








  
  
    

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





Tomika Kimyata Lynette Jackson,
(OI File No. B-21-40754-9),
Petitioner,

v.

The Inspector General.
Docket No. C-22-644Decision No. 6174October 6, 2022

        
              
    

      DECISION

Although the record in this case provides few underlying details, it seems that Petitioner, Tomika Kimyata Lynette Jackson, billed the Medicaid program for hours that she did not work.  She was indicted on one felony count of theft from the Medicaid program and one felony count of Medicaid fraud.  She ultimately pleaded guilty to one misdemeanor count of theft.  Based on this, the Inspector General (IG) has excluded her for seven 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.

For the reasons discussed below, I find that the IG properly excluded Petitioner Jackson.  However, in setting the period of exclusion, the IG did not apply a mitigating factor.  Because I find that a mitigating factor offsets the one aggravating factor here, I reduce the seven-year period of exclusion to five.

Background

In a letter dated June 30, 2022, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of

Page 2

seven years because she 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.

Petitioner timely requested review.

The IG submitted a written argument (IG Br.) and four exhibits (IG Exs. 1-4).  Petitioner submitted no brief and did not mark any exhibits as my pre-hearing order directed.  *See* Order and Schedule for Filing Briefs and Documentary Evidence at 2 (¶ 2) (Aug. 12, 2022).  Nevertheless, her hearing request includes a written argument, which I have considered.  She also submits documents showing that she paid restitution, as ordered by the sentencing court (E-file # 11) (which I consider P. Ex. 1), and seven letters attesting to her character (E-file # 12-# 18) (P. Exs. 2-8).  The IG filed a reply brief.

In the absence of any objections, I admit into evidence IG Exs. 1-4 and P. Exs. 1-8.

**Decision on the written record**.  I instructed the parties to indicate, in their briefs, whether an in-person (video) hearing would be necessary and, if so, to explain why, identify any proposed witness, and submit, “in the form of an affidavit or a written sworn declaration,” the witness’s direct testimony.  Order at 3-4 (¶ 7).  The IG submits no witness testimony and indicates that an in-person hearing is not necessary.  IG Br. at 10.

Petitioner does not indicate that an in-person hearing is necessary.  She submits no witness testimony.

Because there are no witnesses, an in-person hearing would serve no purpose, and this case may be decided based on the written record.

Discussion

***1. Petitioner must be excluded from program participation for a minimum of five years because she was convicted of a criminal offense related to the delivery of an item or service under a state health care 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

Page 3

offense related to the delivery of an item or service under Medicare or a state health care program.  42 C.F.R. § 1001.101(a).

**The charges**.  An Indictment, dated August 18, 2020, charged Petitioner with:

felony theft, in violation of Ohio Revised Code § 2913.02(A)(3), 2913.02(B)(2).  According to the indictment, from on or about July 13, 2016, until on or about December 7, 2018, “as a continuing course of criminal conduct,” Petitioner took more than $1,000 from the Ohio Medicaid Program; and
	felony Medicaid fraud, in violation of Ohio Revised Code § 2913.40(B), 2913.40(E).  The indictment charged that Petitioner made false or misleading statements in order to obtain reimbursement from the Medicaid program; in doing so, she acquired between $1,000 and $7,500.IG Ex. 2 at 1.

**The conviction**.  On July 27, 2021, Petitioner pleaded guilty to misdemeanor theft (“a stipulated lesser offense” to the felony theft charged in the indictment), in violation of Ohio Revised Code § 2913.02(A)(3).  She agreed to pay $1,500 in restitution to the Ohio Department of Medicaid.  IG Ex. 3.

On July 29, 2021, the Ohio Court of Common Pleas accepted Petitioner’s guilty plea and sentenced her to six months in jail, which the court suspended.  Petitioner was sentenced to 12 months of unsupervised probation and ordered to pay $1,500 in restitution to the Ohio Department of Medicaid.  IG Ex. 4 at 1-2.

As shown by her guilty plea and the court’s judgment, Petitioner stole from the Ohio Medicaid program.  Her conviction falls squarely within the statutory and regulatory definition of “conviction,” and her crime was directly related to the delivery of services under a state health care program.  She is therefore subject to exclusion.

Petitioner concedes that she made a mistake but claims “this was not a mistake where I just completely did wrong.”  Hearing Request at 1 (E-file # 1).  According to Petitioner, her employer knew that she was billing the Medicaid program for hours that she did not work but agreed that she could make up those hours when she had time.  “I know on paper it looks as if I was stealing time, but in reality I wasn’t.”  *Id*.

Having pleaded guilty to theft from the Medicaid program, Petitioner may not use this forum to argue that she did not, in fact, commit the crime.  The regulations preclude such a collateral attack on an underlying conviction:

Page 4

When the exclusion is based on the existence of a criminal conviction . . . or any other prior determination where the facts were adjudicated and a final decision was made, 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); *Marvin L. Gibbs, Jr., M.D.*, DAB No. 2279 at 8-10 (2009); *Roy Cosby Stark*, DAB No. 1746 (2000).

***2. Based on one aggravating factor and one mitigating factor, which the IG did not consider, I find that the seven-year exclusion is not reasonable and reduce the period of exclusion to five years.***

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. § 1001.102(a).  I now consider whether the length of the exclusion, beyond five years, falls within a reasonable range.  *See Edwin L. Fuentes*, DAB No. 2988 at 8-9 (2020); *Hussein Awada*, DAB No. 2788 at 5-6 (2017).

**One aggravating factor**.  Among the factors that may serve as a basis for lengthening the period of exclusion is the one that the IG relies on in this case:  the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.  42 C.F.R. § 1001.102(b)(2).  The presence of an aggravating factor, not offset by any mitigating factors, justifies lengthening the mandatory period of exclusion.

Petitioner pleaded guilty to criminal conduct that lasted from July 2016 until December 2018, which is over the one-year threshold for aggravation and, if not offset by a mitigating factor, justifies increasing the period of exclusion.  IG Ex. 1.

**One mitigating factor**.  The regulations consider mitigating just three factors:  1) a petitioner was *convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $5,000*; 2) the record in the criminal proceedings demonstrates that a petitioner had a mental, physical, or emotional condition that reduced her culpability; and 3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed.  42 C.F.R. § 1001.102(c).

Petitioner submits letters from friends and colleagues attesting to her good character.  P. Exs. 2-8.  She argues that she is a good person who made a mistake.  She also asserts that she is completing nursing school and won’t be able to get a job if she is excluded.  Hearing Request (E-file # 1).  These are not mitigating factors that justify my decreasing the length of her exclusion.  My authority is limited by the regulations, and I may not

Page 5

review the IG’s decision to exclude an individual “on the ground that she is a good person or well-thought of in the profession or suffering from the loss of his/her profession.”  *Donna Rogers*, DAB No. 2381 at 6 (2011).

Nevertheless, I find that one mitigating factor must be considered in determining whether the period of exclusion is reasonable:  Petitioner was convicted of one misdemeanor offense, which resulted in a program loss of $1,500, well below the $5,000 level set by the regulation.

The IG does not discuss this factor but argues that Petitioner did not meet her burden of establishing that a mitigating factor exists.  IG Br. at 8.  I acknowledge that the Departmental Appeals Board has characterized any mitigating factor as “in the nature of an affirmative defense,” and ruled that Petitioner has the burden of proving it by a preponderance of the evidence.  *Barry D. Garfinkel*, *M.D.*, DAB No. 1572 at 8 (1996).
I also acknowledge that Petitioner, who is not represented by counsel, did not explicitly argue that her conviction of a low-level crime, costing relatively minimal program losses, offsets the aggravating factor.  However, there can be no dispute that this mitigating factor exists, and I am unwilling to ignore it.  This is not a game of “gotcha.”

I therefore find that one mitigating factor offsets one aggravating factor in this case.  The seven-year exclusion is not reasonable, and I reduce the period of exclusion to five years.

Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participating in Medicare, Medicaid, and all federal health care programs.  However, the IG did not properly apply a mitigating factor:  that Petitioner was convicted of one misdemeanor offense that resulted in program financial losses under $5,000.  I find that this mitigating factor offsets the aggravating factor, that her criminal acts were committed over a period of one year or more.  The seven-year exclusion is therefore not reasonable, and I reduce the period of exclusion to five years.

Endnotes

1 My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
  
          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge Back to top
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