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                              Sylvie Wamba, DAB No. 3068 (2022)
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Sylvie Wamba, DAB No. 3068 (2022)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





Sylvie Wamba
Docket No. A-22-53Decision No. 3068August 17, 2022

        
              
    

      FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Sylvie Wamba appeals the decision of an Administrative Law Judge (ALJ), *Sylvie Wamba*, DAB CR6070 (2022) (ALJ Decision).  The ALJ affirmed, on summary judgment, the determination of the Inspector General (I.G.) to exclude Petitioner from participation in all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) based on her conviction of a criminal offense related to the delivery of an item or service under a federal or state health care program.

As set forth below, we conclude that summary judgment for the I.G. was appropriate and that the undisputed material facts support a mandatory minimum five-year exclusion.  Accordingly, we affirm the ALJ Decision.

Legal Background

Section 1128(a)(1) of the Act requires the Secretary of Health and Human Services to exclude from participation in federal health care programs (as defined in section 1128B(f) of the Act) an individual who "has been convicted of a criminal offense related to the delivery of an item or service under title XVIII [Medicare] or under any State health care program."  Act § 1128(a)(1); *see also* 42 C.F.R. § 1001.101(a).1  "State health care program" includes "a State plan approved under title XIX" (Medicaid).  Act § 1128(h)(1).  As relevant here, an individual is "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."  *Id*. § 1128(i)(3); *see also* 42 C.F.R. § 1001.2 (similarly defining "convicted").

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In an appeal of an exclusion, the individual excluded from program participation based on a criminal conviction is barred from collaterally attacking the basis for that underlying conviction on substantive or procedural grounds.  *See* 42 C.F.R. § 1001.2007(d).

The mandatory minimum period of an exclusion imposed under section 1128(a) is five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  The I.G. may extend the five-year exclusion period based on the application of the aggravating factors in 42 C.F.R. § 1001.102(b).  The I.G. may consider the mitigating factors in section 1001.102(c) (and only those factors) to reduce the exclusion period to no less than five years, but only if the I.G. extends a mandatory minimum exclusion period based on the application of one or more aggravating factors in section 1001.102(b).  42 C.F.R. § 1001.102(c).

An excluded individual may request a hearing before an ALJ, but only on the issues of whether the I.G. had a basis for the exclusion and whether any period of exclusion longer than the mandatory minimum is unreasonable.  42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a).  However, when, as in this case, the I.G. imposes a mandatory exclusion for the statutory minimum five-year period, an excluded individual may not challenge the length of the exclusion as unreasonable.  *Id*. § 1001.2007(a)(2).

A party dissatisfied with the ALJ's decision may appeal it to the Board.  42 C.F.R.  § 1005.21(a).  The Board will not consider any issue not raised in the parties' briefs or any issue in the briefs that could have been raised before the ALJ but was not.  *Id*. § 1005.21(e).

Case Background2

Petitioner is a registered nurse and the owner and operator of Target Health Care LLC (Target), a Medicaid provider home health agency in the Cincinnati, Ohio area.  I.G. Ex. 2, at 1; I.G. Ex. 3; P. ALJ Br. at 3.3

The record includes a June 24, 2020 Complaint Authority Memorandum from the office of the Ohio Attorney General, Health Care Fraud Section, and a Medicaid Fraud Control Unit Conviction Report dated July 2020.  I.G. Ex. 2, at 1; I.G. Ex. 3; I.G. Ex. List.  They indicate that Petitioner personally handled the hiring and vetting of M.M. for Target,

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which employed M.M. for approximately 90 days.  I.G. Ex. 2, at 1; I.G. Ex. 3.  M.M. obtained employment with Target under a stolen identity and without a nursing license.  I.G. Ex. 2, at 1; I.G. Ex. 3.  Petitioner admitted she knew she had to perform a criminal background check of M.M., but she did not perform the check (required by law within 60 days).  I.G. Ex. 2, at 1; I.G. Ex. 3.  Petitioner also admitted she knew she had not performed the required criminal background check when she electronically submitted claims to the Medicaid program.  I.G. Ex. 2, at 1; I.G. Ex. 3.  After the deadline to obtain a criminal background check had passed, Petitioner continued to bill the Medicaid program for M.M.'s services for approximately 30 days.  I.G. Ex. 3.  Upon further investigation, the Ohio Attorney General found that Target had employed eight additional individuals for longer than 60 days without performing a criminal background check.  I.G. Ex. 2, at 1; I.G. Ex. 3.  Also, for a period of approximately two weeks, Target employed an individual who had been excluded from the Medicaid program due to a conviction for patient abuse.  I.G. Ex. 2, at 1; I.G. Ex. 3.

On June 29, 2020, the Ohio Attorney General filed the complaint against Petitioner in the Franklin County Municipal Court, as the Attorney General had indicated he would do in the Complaint Authority Memorandum, charging Petitioner with one count of criminal mischief, a first-degree misdemeanor, in violation of Ohio Revised Code (O.R.C.) § 2909.07(A)(6).  I.G. Ex. 2; I.G. Ex. 4.  The complaint stated that, on or about December 1, 2018, to on or about December 31, 2019, Petitioner "did, without privilege to do so, and with intent to impair the functioning of any computer, computer system, computer network, computer software or computer program, knowingly altered or modified data contained in a computer, computer software or computer program."  I.G. Ex. 4.4

On June 29, 2020, Petitioner pleaded guilty to the stated charge of criminal mischief in violation of O.R.C. § 2909.07(A)(6).  I.G. Ex. 5.  The Court accepted Petitioner's guilty plea and found Petitioner guilty.  *Id*.  The Court ordered Petitioner to pay a $200 fine plus court costs.  *Id*.

By letter dated November 30, 2021, the I.G. notified Petitioner that she was excluded from participation in all federal health care programs (as defined in section 1128(B)(f) of the Act), pursuant to section 1128(a)(1) of the Act, based on her conviction (as defined in section 1128(i) of the Act) in the Franklin County Municipal Court, Columbus, Ohio, of a

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criminal offense related to the delivery of an item or service under Medicare or a state health care program,5 including the performance of management or administrative services relating to the delivery of items or services under any such program.  I.G. Ex. 1, at 1; *see* 42 C.F.R. § 1001.101(a).  The I.G. informed Petitioner that she would be excluded for the minimum statutory period of five years.  I.G. Ex. 1, at 1.  The I.G. also informed Petitioner that the exclusion would take effect 20 days from the date of the exclusion letter.  *Id*.; *see* 42 C.F.R. § 1001.2002(b).

ALJ Proceedings and Decision

Petitioner timely filed a request for hearing, contesting the I.G.'s five-year exclusion.  ALJ Decision at 1; Request for Hearing.6  Following a telephone prehearing conference, the I.G. filed a motion for summary judgment, supporting brief (I.G. ALJ Br.), and I.G. exhibits 1 through 5.  ALJ Decision at 1-2; I.G. Ex. List.  Petitioner filed a brief in opposition (P. ALJ Br.) and two documents, identified in her exhibit list as "[M.M.] License Verification" and "[M.M.'s] Online Verification Checks," offered as Petitioner's exhibits 1 and 2, respectively.  ALJ Decision at 2; P. Ex. List.7  The I.G. filed a reply brief and Petitioner filed a sur-reply brief.  ALJ Decision at 2.

The ALJ admitted every I.G. exhibit into the record without objection by Petitioner.  ALJ Decision at 2.  The I.G. objected to Petitioner's exhibits on the bases that the exhibits

Page 5

were irrelevant and offered to collaterally attack the underlying conviction.  I.G. ALJ Reply Br. at 5-6; *see also* ALJ Decision at 2.  The record reveals no response from Petitioner concerning the I.G.'s objections.  The ALJ excluded both of Petitioner's exhibits because they were "simply not relevant to" the issue that was before the ALJ – "whether there is a basis to exclude Petitioner and the elements that trigger exclusion . . . [i.e.,] whether Petitioner was convicted of a criminal offense; whether the offense was related to the delivery of an item or service; and whether the delivery of the item or service was under Medicare or a state health care program" – and because Petitioner was prohibited from collaterally attacking her conviction.  ALJ Decision at 2 (citing Act § 1128(a)(1); 42 C.F.R. §§ 1005.17(c), 1001.101(a), 1001.2007(d)).

The ALJ concluded it was appropriate to decide this matter on summary judgment because there was no genuine dispute of material fact on the issue that was before the ALJ – whether the I.G. had established a legal basis to exclude Petitioner under section 1128(a)(1) of the Act and 42 C.F.R. § 1001.101(a) – and the issues Petitioner raised were "issues of law that must be resolved against her."  ALJ Decision at 2, 4-5.

The ALJ's findings and conclusions included the following:

Section 1128(a)(1) of the Act requires Petitioner's exclusion from participation in Medicare, Medicaid, and all other federal health care programs.

Section 1128(c)(3)(B) of the Act requires a minimum exclusion of five years for an exclusion pursuant to section 1128(a) of the Act.

Petitioner's exclusion for five years is not unreasonable as a matter of law.

ALJ Decision at 6, 10-11 (ALJ's numbering and bolding removed).  We will discuss the ALJ's rationale for the above findings and conclusions in more detail below.

The ALJ concluded, "Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum of five years, effective December 20, 2021."  ALJ Decision at 12; *see* 42 C.F.R. § 1001.2002(b) ("The exclusion will be effective 20 days from the date of the notice" of the exclusion.).

Standard of Review

The standard of review by the Board "on a disputed issue of law is whether the initial decision is erroneous."  42 C.F.R. § 1005.21(h).

An ALJ may, "[u]pon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact."  42 C.F.R. § 1005.4(b)(12).

Page 6

"Whether summary judgment is appropriate is a legal issue the Board addresses de novo."  *Delores L. Knight*, DAB No. 2945, at 5 (2019) (quoting *Kimbrell Colburn,* DAB No. 2683, at 4 (2016) (page number corrected)).  "Summary judgment is appropriate when the record shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law."  *Id*. (quoting *Colburn* at 4 (page number corrected)).  In deciding whether there is a genuine dispute of material fact, we view proffered evidence in the light most favorable to the non-moving party.  *Colburn* at 4-5 (citation omitted).  The "substantive law will identify which facts are material," and "[o]nly disputes over facts that might affect the outcome of the [case] under the governing law will properly preclude the entry of summary judgment."  *Anderson v. Liberty Lobby, Inc*., 477 U.S. 242, 248 (1986); *see also Livingston Care Ctr.*, DAB No. 1871, at 5 (2003) (stating that "[t]o defeat an adequately supported summary judgment motion, the non-moving party . . . must furnish evidence of a dispute concerning . . . a fact that, if proven, would affect the outcome of the case under governing law") (citations omitted), *aff'd*, 388 F.3d 168 (6th Cir. 2004).  In evaluating a motion for summary judgment, the party that did not move for summary judgment (here, Petitioner) is entitled to the benefit of all reasonable inferences.  *Pearsall Nursing & Rehab. Ctr. – N.*, DAB No. 2692, at 5 (2016) (citations omitted).  Drawing factual inferences in the light most favorable to the non-moving party does not, however, require that a reviewer draw unreasonable inferences or accept the non-moving party's legal conclusions.  *Wax David Flowers, Ph.D.*, DAB No. 3039, at 8 (2021) (citations omitted).  Inferences based on speculation are not reasonable.  *Id*. (citation omitted).

Analysis

Petitioner, who appears pro se before the Board as she did before the ALJ, acknowledges that the ALJ has authority to proceed to decision, without convening an evidentiary hearing, when the undisputed material facts support summary judgment.  P. Br. ¶¶ 1, 2.  Despite this, Petitioner contends the ALJ erred in concluding that there was no genuine dispute of material fact and that summary judgment was appropriate.  *Id*. ¶¶ 3, 5.

On the legal basis for exclusion, Petitioner acknowledges the I.G.'s authority to exclude her under section 1128(a)(1) of the Act.  P. Br. ¶ 11.  Petitioner does not specifically dispute that she pleaded guilty to criminal mischief, the conviction of which was the basis for her exclusion.  Petitioner acknowledged the fact of her guilty plea and conviction before the ALJ.  Request for Hearing; P. ALJ Br. at 2-3, 5.  Before the Board, Petitioner nevertheless challenges the ALJ's conclusion that there was a basis to exclude her pursuant to section 1128(a)(1) of the Act, raising various arguments about the conviction for criminal mischief on which the exclusion was based and alleging ALJ error in failing to consider evidence concerning the conviction.  *See* P. Br. ¶¶ 12, 14-17.  Petitioner also acknowledges that 42 C.F.R. § 1001.2007(d) prohibits a collateral attack on a conviction on which an exclusion is based, *id*. ¶ 7, but makes arguments that amount to a collateral attack on her conviction.  *See id*. ¶¶ 12, 14, 16-18.

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Petitioner also asserts that she was entitled to a hearing before the ALJ, under section 1128(f) of the Act, to present evidence concerning her innocence, and on the disputed issues concerning the reasonableness of the five-year exclusion period and the existence of mitigating factors.  *See* P. Br. ¶¶ 4, 6, 8-10, 13, 19.

Petitioner further contends the ALJ failed to consider alleged mitigating factors and the "dire consequences" that the exclusion would have on her business.  P. Br. ¶¶ 19, 20.

We will address Petitioner's arguments in more detail below.8  As we explain, on de novo review, we, like the ALJ, determine that the undisputed facts establish a basis for exclusion under section 1128(a)(1) of the Act, and, by law, the exclusion must be imposed for a minimum of five years.  We affirm the ALJ Decision.

***1. The ALJ did not err in deciding this matter on summary judgment, without convening a hearing.***

As the ALJ explained, an individual subject to an I.G. exclusion is entitled to reasonable notice of the exclusion and an opportunity for a hearing in which the individual and the I.G. have a right to participate.  ALJ Decision at 4 (citing Act § 1128(f); 42 C.F.R. §§ 1005.2, 1005.3).  As the ALJ also explained, either or both parties (sanctioned individual and the I.G.) may choose to waive appearance at an oral hearing and submit only documentary evidence and written argument on which the ALJ would decide the appeal.  *Id*. (citing 42 C.F.R. § 1005.6(b)(5)).9  The record reveals no waiver of appearance at an oral hearing.  Indeed, as acknowledged above, Petitioner maintains that she was entitled to a hearing before an ALJ on various issues, thus communicating that she did not waive and does not wish to waive her right to a hearing.

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That Petitioner did not waive her right to a hearing does not then mean that Petitioner has an absolute, unqualified right to a hearing or that the ALJ erred by proceeding to decision without convening a hearing where, as here, the ALJ correctly determined that there is no genuine dispute of material fact on the only issue that was before the ALJ.  Before the Board, Petitioner simply declares that, since she disputes certain issues that she apparently believes were properly before the ALJ, she was entitled to a hearing on those issues and the ALJ must have erred in proceeding to decision without convening a hearing.  Petitioner is mistaken.

As Petitioner herself acknowledges, the ALJ may decide a case by summary judgment, without convening a hearing, in the absence of a genuine dispute of material fact.  *See* P. Br. ¶¶ 1 (citing 42 C.F.R. § 1005.4(b)(12) (stating that the ALJ has authority to, "[u]pon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact"), 2.  The Board has recognized that, where no genuine issues of material facts exist such that there is no need for an evidentiary hearing to take evidence (the purpose of which would be to make factual findings necessary to decide the issues properly before the ALJ), an ALJ may decide the appeal on summary judgment and need not convene a hearing*.  See John W. Foderick, M.D.*, DAB No. 1125, at 10 (1990); *Surabhan Ratanasen, M.D.*, DAB No. 1138, at 3-4 (1990); *Knight*, DAB No. 2945, at 5 ("Summary judgment is appropriate when the record shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.") (citation omitted).

The ALJ wrote:

The Secretary has by regulation limited my scope of review to two issues:

Whether the IG has a basis for excluding an individual or entity from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

When, as in this case, the IG imposes the minimum authorized five-year exclusion under section 1128(a) of the Act, there is no issue as to whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(2).

ALJ Decision at 4.  The ALJ was correct.  Accordingly, the only issue before the ALJ was whether the I.G. had established a legal basis to exclude Petitioner.  *Id*. at 2 ("The only issue before me is whether there is a basis to exclude Petitioner and the elements that trigger exclusion . . . .") (citing Act § 1128(a)(1); 42 C.F.R. § 1001.101(a)).

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The ALJ also explained why he determined summary judgment was appropriate on whether the I.G. had established a legal basis for exclusion, that is, there is no genuine dispute of material fact on the "elements that trigger exclusion" under section 1128(a)(1) of the Act:  whether Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  *See* ALJ Decision at 2, 4-7.  The ALJ also explained his rationale for finding a nexus between the underlying conviction for criminal mischief and the delivery of an item or service under Medicare or a state health care program.  *See id*. at 7-9.  As we explain below, on de novo review, we, like the ALJ, determine that there is no genuine dispute of material fact on the elements supporting an exclusion under section 1128(a)(1) of the Act.  The ALJ did not err in proceeding to decision on summary judgment on the sole, dispositive issue of the legality of imposition of an exclusion, without convening a hearing.  *See Ratanasen*, DAB No. 1138, at 3-4 (determining that, because the undisputed material facts established that the crime of which the petitioner was convicted was related to the "delivery of an item or service" under the Medicaid program, an evidentiary hearing was unnecessary).

***2. The undisputed facts establish that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program, thus establishing a basis for mandatory exclusion under section 1128(a)(1) of the Act.***

The I.G. must exclude under section 1128(a)(1) an individual who "has been convicted of a criminal offense related to the delivery of an item or service under title XVIII [Medicare] or under any State health care program."  Act § 1128(a)(1); *see also* 42 C.F.R. § 1001.101(a).

On June 29, 2020, the Franklin County Municipal Court accepted Petitioner's guilty plea to the charge of criminal mischief in violation of O.R.C. § 2909.07(A)(6) and found Petitioner guilty.  I.G. Ex. 5.  Petitioner acknowledged her guilty plea to a charge of criminal mischief, the conviction of which was the basis for her exclusion, before the ALJ and does not dispute this guilty plea before the Board.  Thus, it is undisputed that Petitioner was "convicted" of a criminal offense for the purpose of her exclusion under section 1128(a)(1) of the Act.  *See* Act § 1128(i)(3) (stating that an individual is considered to have been "convicted" of a criminal offense if "a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court").

A conviction having been established, the question is whether the offense of which Petitioner was convicted is related to the delivery of an item or service under Medicare or a state health care program.  Petitioner asserts the ALJ "wrongly concluded" that the requisite nexus ("related to") was established.  P. Br. ¶ 15; *see id*. ¶ 12.  In a similar vein, Petitioner also asserts the ALJ erred in concluding she "pleaded guilty to the delivery of an item or service under Medicare or a state health care program."  *Id*. ¶ 14.

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"The 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."  *Matthew J. Girardy, DMD*, DAB No. 2987, at 5 (2020) (quoting *Summit S. Shah, M.D.*, DAB No. 2836, at 6 (2017); *see also Knight*, DAB No. 2945, at 10 (citations omitted); *Colburn,* DAB No. 2683, at 5.  As the ALJ determined, the criminal mischief charge of which Petitioner was convicted "does not on its face reflect a nexus to the delivery of an item or service under Ohio Medicaid."  ALJ Decision at 8; *see* I.G. Ex. 4 (providing that Petitioner "did, without privilege to do so, and with intent to impair the functioning of any computer, computer system, computer network, computer software or computer program, knowingly altered or modified data contained in a computer, computer software or computer program"); I.G. Ex. 5.

Nevertheless, the Board has said, in the context of a section 1128(a)(1) exclusion, that "in determining whether the requisite nexus exists, the 'labeling of the offense under the state statute' is not determinative."  *Robert C. Hartnett*, DAB No. 2740, at 7 (2016) (quoting *Berton Siegel, D.O.*, DAB No. 1467, at 7 (1994) (emphasis omitted)).  Thus, "an ALJ is free to look beyond the narrow constructs of a state's criminal statutes."  *Shah* at 7 (citations omitted).  Moreover, the Board considers, as appropriate, "evidence as to the nature of an offense," such as the "facts upon which a conviction was predicated."  *Hartnett* at 7 (quoting *Siegel* at 6-7).  "[T]he test for whether a common-sense nexus exists is 'based on all relevant facts' and 'not merely a narrow examination of the language within the four corners of the final judgment and order of the criminal trial court.'"  *Yolanda Hamilton, M.D.*, DAB No. 3061, at 10 (2022) (quoting *Shah* at 8).

We agree with the ALJ that "the underlying facts of [Petitioner's] conviction establish the required nexus."  *See* ALJ Decision at 8; *see also id*. at 6-7.  Petitioner, as the owner and operator of Target, is in the business of providing home health care services to Medicaid beneficiaries.  *Id*. at 8; I.G. Ex. 2, at 1; I.G. Ex. 3; P. ALJ Br. at 3; Request for Hearing.  Petitioner billed Ohio Medicaid, a state health care program, for services provided by Target.  I.G. Ex. 2, at 1; I.G. Ex. 3.  In operating Target, Petitioner knowingly did not perform a criminal background check, which she knew was required, when hiring M.M.  I.G. Ex. 2, at 1; I.G. Ex. 3.  After the deadline to obtain a criminal background check had passed, Petitioner continued to bill Medicaid for M.M.'s services for approximately 30 days.  I.G. Ex. 3.  Target employed eight additional individuals for longer than 60 days without performing a criminal background check.  I.G. Ex. 2, at 1; I.G. Ex. 3.  For approximately two weeks, Target also employed an individual who was excluded from Medicaid based on a conviction for patient abuse.  I.G. Ex. 3.  Following Petitioner's cooperation with the Ohio Attorney General office's investigation, the Ohio Attorney General's office recommended that Petitioner plead guilty to the charge of criminal mischief (the charge of which Petitioner was convicted).  I.G. Ex. 2, at 1.  None of these facts are disputed.

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Petitioner merely asserts the ALJ erred in finding a nexus but has not shown that there exists a genuine dispute of material fact relevant to the question of nexus.  She has not offered any evidence in support of her bare assertion that the requisite nexus was not shown.10  To the contrary, before the ALJ, Petitioner herself made statements that are consistent with or tend to confirm some of the contents of the June 24, 2020 Complaint Authority Memorandum (I.G. Ex. 2) and the Medicaid Fraud Control Unit Conviction Report dated July 2020 (I.G. Ex. 3), which lay out the circumstances that led to the Ohio Attorney General's office filing a complaint against Petitioner and culminating in her pleading guilty to a charge of criminal mischief.  Petitioner indicated that Target's practice of making employees pay for their own background checks led to delays and "infractions."  P. ALJ Br. at 3.  Petitioner stated that she took "full responsibility" for these infractions and acknowledged she intended to plead guilty to not obtaining a background check for multiple new employees.  *Id*. at 2-3, 5.  Petitioner also acknowledged that the Ohio Attorney General negotiated a resolution of her case in which the Ohio Attorney General dismissed the original Medicaid fraud charges and allowed her to plead guilty to criminal mischief to "lessen her conviction."  *Id*. at 2-5.

Accordingly, the undisputed facts upon which Petitioner's conviction was predicated plainly establish a common-sense nexus between Petitioner's offense and the delivery of a healthcare item or service under Ohio Medicaid.11  *See Colburn* at 6.  The ALJ did not err in concluding that the I.G. lawfully excluded Petitioner from participation in all federal health care programs under section 1128(a)(1) of the Act.  *See* ALJ Decision at 6.

***3. Petitioner may not collaterally attack the conviction on which the exclusion was based.***

Petitioner acknowledges that a collateral attack on a conviction on which an exclusion is based is prohibited by regulation, but also raises arguments about her conviction to challenge the basis for the conviction on which her exclusion was founded.  P. Br. ¶¶ 7, 12, 14, 16-18.  In particular, Petitioner contends that the ALJ failed to consider her argument that "she did not truly understand the nature of the crime to which she pleaded

Page 12

guilty."  *Id*. ¶ 17.  Petitioner claims that this argument was "a permissible questioning of her plea of guilt and underlying conviction," and that "[b]y claiming that she mistakenly pleaded guilty to an offense that does not match her criminal conduct, the same ought to have been reviewed by the relevant body first."  *Id*. ¶ 18.  Petitioner also argues that the ALJ erred in "failing to consider the available evidence or proof of the conviction . . . and its viability in determining the applicability of the imposition of the mandatory exclusion by the [I.G.]."  *Id*. ¶ 16.12  Finally, Petitioner argues that the ALJ denied her an opportunity to "present evidence in support of her innocence."  *Id*. ¶ 13.

Contrary to Petitioner's contention, the ALJ considered her argument that "she did not truly understand the nature of the crime to which she pleaded guilty."  ALJ Decision at 9.  However, the ALJ correctly determined that Petitioner's argument amounted to "an impermissible collateral attack on the providence of her guilty plea and her underlying conviction."  *Id*.; *see* 42 C.F.R. § 1001.2007(d) ("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 individual or entity may not collaterally attack it either on substantive or procedural grounds in th[e] appeal."); *Rosa Velia Serrano*, DAB No. 2923, at 7 (2019) (providing that the Board "is not permitted to review" collateral attacks on the validity of a petitioner's criminal conviction).

As discussed earlier, Petitioner previously acknowledged that the Ohio Attorney General's office negotiated a resolution of her case in which the Ohio Attorney General's office dismissed the original Medicaid fraud charges and allowed her to plead guilty to criminal mischief.  P. ALJ Br. at 3-5.  Nevertheless, Petitioner raises the same contention that she did not truly understand the nature of the crime to which she pleaded guilty and additional similar arguments to the Board to challenge the basis for her exclusion.  As the Board has previously stated, "[t]he [exclusion] statute does not permit [a petitioner] to admit [her or] his guilt to the charge as alleged in [her or] his criminal proceeding and then attempt to relitigate the facts of the charge in the exclusion proceeding."  *Hartnett*, DAB No. 2740, at 11; *see also Serrano* at 7 (quoting *Joann Fletcher Cash*, DAB No. 1725, at 6 (2000)) ("The purpose of the provision [prohibiting collateral attacks] 'is to prevent excluded individuals from relitigating the validity of their convictions.'").

Moreover, it is entirely irrelevant that Petitioner believes she is innocent.  The undisputed evidence shows she was convicted, based on a guilty plea, for purposes of exclusion under section 1128(a)(1) of the Act.  "The regulation's prohibition on collateral attacks recognizes that it is 'the fact of the conviction which causes the exclusion.  The law does not permit the Secretary to look behind the conviction.'"  *Laura Leyva*, DAB No. 2704,

Page 13

at 7 (2016) (emphasis omitted) (quoting *Michael D. Miran, Esta Miran, & Michael D. Miran, Ph.D. Psych. P.C.*, DAB No. 2469, at 4 (2012)), *appeal dismissed*, No. 8:16-cv-1986-T-27AEP, 2017 WL 2880125 (M.D. Fla. Apr. 24, 2017).  The ALJ correctly stated that Petitioner may not challenge the legality of the conviction on which the exclusion is based in I.G. exclusion appeal proceedings.  *See* ALJ Decision at 9 ("This is not a forum for such a challenge.").

As described above, Petitioner's arguments challenging the basis for her exclusion amount to a prohibited collateral attack on her conviction.  They "do not raise any material dispute of fact that would render summary judgment inappropriate, as the ALJ was not required [to] draw in Petitioner's favor any inferences contrary to the facts she admitted in her criminal case."  *Melissa Michelle Phalora*, DAB No. 2772, at 12 (2017), *appeal dismissed*, No. 2:17-cv-00188 (N.D. Ind. June 15, 2018).

***4. Where, as here, the legal basis for an exclusion under section 1128(a)(1) is established, Petitioner must be excluded for a minimum of five years, and mitigation is not at issue.***

Petitioner identifies "the unreasonableness of the mandatory five-year period" of exclusion as a "disputed issue."  P. Br. ¶ 6; *see also id*. ¶¶ 9-10.  Petitioner contends that, because she identified a "disputed issue," she had the right to a hearing before an ALJ pursuant to section 1128(f) of the Act.  *Id*. ¶ 6; *see also id*. ¶¶ 8, 10, 13 (asserting that the ALJ erred in denying Petitioner an opportunity for a hearing where Petitioner could present defenses and mitigating factors).13

Petitioner also asserts the ALJ erred in failing to consider the "mitigating factors" she had presented to the ALJ and expresses her belief that consideration of these factors would have "greatly influenced" the ALJ's decision concerning the exclusion period.  P. Br. ¶ 19.  Petitioner asserts that the following are "mitigating factors":  (1) she made

Page 14

corrections in her business practices; (2) completed web searches pending criminal background checks; and (3) Target continues to serve the community during the pendency of this appeal without charging Ohio Medicaid.  *Id*.

When the I.G. has established a lawful basis for imposing an exclusion under section 1128(a)(1), as in this case, the excluded individual *must* be excluded for a minimum of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).  The I.G. may seek to exclude an individual under section 1128(a) of the Act for a period longer than the required minimum of five years through the application of any one or more of the nine aggravating factors enumerated under 42 C.F.R. § 1001.102(b).  If the I.G. decides to lengthen an exclusion imposed under section 1128(a) for a period longer than five years through the application of any of the aggravating factors in section 1001.102(b), only then does the question of whether any mitigating factors exist become relevant.  In that situation, only the three mitigating factors enumerated under section 1001.102(c) may be considered for possible reduction or offsetting of the exclusion period longer than five years to no shorter than five years.  *See* 42 C.F.R. § 1001.102(c)14; *see also Shaikh M. Hasan, M.D.*, DAB No. 2648, at 6 (2015) ("A discussion about mitigating factors is appropriate only if an exclusion period longer than the mandatory minimum period was imposed."), *aff'd*, No. 1:15-cv-04687-SJ-LB (E.D.N.Y. July 9, 2017).

The I.G. determined to exclude Petitioner only for the required minimum five years and did not seek to lengthen that period through the application of any of the aggravating factors in section 1001.102(b).  Under these circumstances, the only issue on which

Page 15

Petitioner would have been entitled to an ALJ hearing (assuming the ALJ had not determined to decide this matter on summary judgment) was whether the basis for the imposition of an exclusion existed.  *See* 42 C.F.R. § 1001.2007(a)(1), (2); *see also Charice D. Curtis*, DAB No. 2430, at 6 (2011) ("Section 1128(c)(3)(B) requires that exclusions under section 1128(a) be for a minimum period of five years, and the applicable regulations provide that when the I.G. has imposed a mandatory five-year exclusion, the ALJ is restricted to considering only whether there was a basis for imposing the exclusion.") (citations omitted).  Accordingly, the issue of the reasonableness of the five-year exclusion period was not properly before the ALJ, and the ALJ did not err in not holding a hearing on that issue.  *See also* discussion in section 1, *supra*.

Moreover, contrary to Petitioner's assertion that the ALJ did not consider her arguments concerning the existence of mitigating factors, the ALJ expressly acknowledged those arguments.  *See* ALJ Decision at 11 (citing Petitioner's brief to the ALJ and her request for hearing).  The ALJ then stated that "the mitigating factors urged by Petitioner and the impact of her exclusion may not be considered because [he had] no authority to reduce the period of exclusion below five years."  *Id*.  As the ALJ also explained, correctly, the mitigating factors in 42 C.F.R. § 1001.102(c) may be considered for possible reduction of an exclusion period longer than the minimum five years to no less than five years only if the I.G. extends an exclusion period based on the application of one or more aggravating factors in section 1001.102(b).  *See id*.  Since the I.G. did not apply any section 1001.102(b) aggravating factors to lengthen the five-year period, the issue of whether any section 1001.102(c) mitigating factor could be applied to reduce that period was not before the ALJ.

Even assuming for the moment that we and the ALJ had before us an appeal of a section 1128(a) exclusion for a period longer than the minimum five years, the only mitigating factors that we and the ALJ would have authority to consider to possibly reduce that lengthened period are those set out in 42 C.F.R. § 1001.102(c), which states that "[o]nly the following factors may be considered mitigating" and lists three factors in paragraphs (c)(1)-(c)(3).  The "mitigating factors" Petitioner asserted below, and again asserts before the Board, ought to be considered – allegedly improving her business practices, completing web searches on candidates for employment at Target pending criminal background checks, and continuing to serve the community without billing the Medicaid program15 – are not the types of factors recognized by section 1001.102(c).  Nor may the possibility that Petitioner might have to close Target be considered a mitigating factor.  The ALJ determined, correctly, that "[t]he possible closure of Petitioner's business,

Page 16

although detrimental to Petitioner, is not a mitigating factor authorized by 42 C.F.R. § 1001.102(c)."  ALJ Decision at 11 (citing *Jeremy Robinson*, DAB No. 1905, at 8 (2004) (ALJ's citation corrected) (stating that "[t]he practical consequences to the excluded individual or entity are not mitigating factors for consideration").  Accordingly, neither the asserted "mitigating factors," nor the possibility that Petitioner might have to close her business, could be the basis for reducing the exclusion period even if the I.G. had imposed an exclusion longer than five years.

In short, where, as here, an exclusion is lawfully imposed under section 1128(a)(1) of the Act, the exclusion must remain in place for at least five years.  The ALJ correctly concluded that excluding Petitioner for five years "is not unreasonable as a matter of law."  ALJ Decision at 11; *see Moore*, DAB No. 2963, at 2 ("If the I.G. imposed a mandatory minimum five-year exclusion, then the exclusion's length is reasonable as a matter of law . . . .") (citations omitted).

***5. Neither the ALJ nor the Board is empowered to grant equitable relief to reverse a lawful section 1128(a)(1) exclusion or reduce the mandatory minimum exclusion period.***

Petitioner states the ALJ failed to consider the "dire consequences" that the five-year exclusion could have on her business.  P. Br. ¶ 20.  As noted above, the ALJ considered Petitioner's argument that excluding Petitioner could cause Target to close, and correctly determined that possible adverse consequences of the exclusion on Petitioner's business is not a mitigating factor recognized under section 1001.102(c).

To the extent Petitioner's arguments about the "dire consequences" of the exclusion and the "mitigating factors," P. Br. ¶¶ 19-20, could be construed as a plea for a reversal of the exclusion or the reduction of the exclusion period, we have no authority to take either action.  As explained above, the undisputed facts establish a lawful basis for excluding Petitioner under section 1128(a)(1) of the Act, and the exclusion must remain in place for at least five years.  We note, moreover, that the Board previously found it had "no authority to provide . . . equitable relief" based on "the damage to [a petitioner's] career the exclusion ha[d] wrought."  *See Curtis*, DAB No. 2430, at 6; *see also Girardy*, DAB No. 2987, at 7 ("[T]he Board is bound to follow the exclusion authorities and cannot sit in equity."); *Rita Patel*, DAB No. 2884, at 7 (2018) ("[T]he Board has long held that it does not have the power to decline to apply a regulation based on equity alone because the Board is bound by all applicable laws and regulations.") (citation omitted), *appeal dismissed*, No. 2:19-cv-08925-CCC-MF (D.N.J. Mar. 3, 2020).

Page 17

Conclusion

We affirm the ALJ Decision.

Endnotes

1  We apply the regulations that were in effect when the I.G. issued the determination to exclude Petitioner.  *See Ishtiaq A. Malik, M.D.*, DAB No. 2962, at 1 n.2 (2019) (citation omitted), *aff'd*, No. 1:20-cv-00091 (RDA/TCB), 2022 WL 1785240 (E.D. Va. June 1, 2022), *and appeal filed*, No. 22-1706 (4th Cir. July 5, 2022).

2  The facts in this section are undisputed and drawn from the record evidence on which the ALJ made his decision.

3  Before the ALJ, Petitioner stated the name of the home health agency was "Target Health Care LLC," whereas the exhibits submitted by the I.G. referred to the home health agency as "Target Home Health" and "Target Home Healthcare."  *Compare* P. ALJ Br. at 3, *with* I.G. Ex. 2, at 1, *and* I.G. Ex. 3.  It is undisputed that Petitioner owns a home health agency, to which we refer as "Target," and slight variations in the record references to the name of her home health agency have no material bearing on our analysis.

4  The Complaint Authority Memorandum from the Ohio Attorney General's office indicates that Petitioner cooperated with the Attorney General's office, acknowledged her understanding that her home health agency was responsible for "vet[ting] nurses before placing them in homes," provided information concerning M.M., and assisted with the investigation and prosecution of M.M.  Petitioner (who was represented by counsel), "negotiated a resolution" with the Attorney General's office to plead guilty to criminal mischief upon the filing of a complaint against her.  *See* I.G. Ex. 2, at 1.

5  There is no dispute that the Ohio Medicaid program is a "[s]tate health care program" within the meaning of section 1128(h)(1) of the Act.

6  Petitioner submitted three items with her hearing request:  (1) the I.G.'s November 30, 2021 exclusion letter; (2) a December 13, 2021 email from a Civil Remedies Division (CRD) attorney to Petitioner informing Petitioner that the CRD was returning her earlier submission because therein she did not indicate whether by that submission she was requesting a hearing before the ALJ on the I.G.'s exclusion and asking her to resubmit a request for ALJ hearing through DAB E-File (electronic filing system) if she wanted a hearing before an ALJ; and (3) a document titled "Franklin County Municipal Court Clerk Case Information – Printout."  In his January 4, 2022 Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence at 4-5, ¶ 7, the ALJ notified the parties that "[t]he record on which th[e] case [wa]s to be decided w[ould] consist only of documents submitted as exhibits by the parties and admitted to the record by my order, the pleadings filed, and the transcript from any evidentiary hearing conducted," and that Petitioner must properly mark as exhibits and refile any documents she wanted the ALJ to consider as evidence.  Petitioner did not resubmit any of the three items.  Thus, although the three items are part of the administrative record, they are not part of the evidentiary record since they were neither offered nor admitted as evidence.  Petitioner did not argue before the ALJ, nor does she argue before the Board, that these documents should be admitted into evidence.  In any case, the I.G.'s exclusion letter is already of record as I.G.'s exhibit 1.  The December 13, 2021 email is inconsequential under the circumstances presented because, later on December 13, 2021, Petitioner electronically filed a request for hearing that the ALJ accepted as timely.  As for the "Franklin County Municipal Court Clerk Case Information – Printout," the contents of that document essentially confirm what I.G.'s exhibits 4 and 5 together show, that is, Petitioner was convicted by guilty plea to a charge of criminal mischief in violation of O.R.C. § 2909.07(A)(6).  Put differently, even had Petitioner later submitted the document as an exhibit and the ALJ admitted it, the outcome – the imposition of a section 1128(a)(1) exclusion for five years based on a qualifying conviction – would not change.

7  As the ALJ noted, Petitioner did not mark her exhibits with exhibit numbers.  *See* ALJ Decision at 2.

8  We note that the ALJ addressed certain arguments Petitioner had raised before the ALJ but does not now reprise before the Board.  *See* ALJ Decision at 9-10 (discussing argument the ALJ stated could be construed as alleging that the I.G. exclusion violates Petitioner's constitutional rights), 10 (rejecting argument that the I.G. should have considered exercising permissive exclusion authority under section 1128(b) of the Act, rather than excluding her under section 1128(a), which mandates exclusion, and stating that "[t]he IG had no discretion to exclude Petitioner under the permissive exclusion provisions of section 1128(b) of the Act rather than the mandatory exclusion provisions of section 1128(a) of the Act") (ALJ's numbering and bolding omitted).  Because Petitioner raises no argument about these aspects of the ALJ's analysis, we need not further address them.  *See* 42 C.F.R. § 1005.21(e) ("The [Board] will not consider any issue not raised in the parties' briefs . . . .").

9  *See Michael W. Lawrence, DPM*, DAB No. 2983, at 7-8 (2020) (discussing petitioner's written waiver of hearing on whether a legal basis for exclusion existed, the only issue before the ALJ); *Olandis Moore*, DAB No. 2963, at 7 (2019) (citation omitted) (stating that an ALJ is authorized to decide a case without an in-person hearing if the party who requested it elects to waive his appearance and submits only documentary evidence and written argument).

10  As noted earlier, Petitioner submitted two exhibits, both of which the ALJ excluded as irrelevant to the question of whether there is a legal basis to exclude Petitioner and because they were offered to collaterally attack the conviction.  *See* ALJ Decision at 2 (citing authorities, including 42 C.F.R. § 1005.17(c)).  Petitioner does not argue that the ALJ erred or abused his discretion by excluding the two exhibits; nor does she assert that either of the excluded exhibits shows the existence of a genuine dispute of material fact on the legal basis for exclusion.

11  The Board "has found in section 1128(a)(1) exclusion cases the requisite nexus to the delivery of an item or service where the offenses in question were rationally related to, but did not directly involve or result in, the delivery of a health care item or service under Medicare or a state health care program."  *Hamilton* at 11 n.13 (citations omitted).

12  Given Petitioner's offer of only two exhibits and the ALJ's exclusion of both, a ruling Petitioner does not challenge, it is not clear to which "available evidence or proof" Petitioner is referring.

13  Petitioner states that the main issue is whether the ALJ was required to "grant her a chance to present evidence in support of her defense."  P. Br. ¶ 10.  Petitioner does not clearly explain what she means by her references to "defense" or "defenses."  To the extent Petitioner might have intended to refer generally to the circumstances of her case as possible grounds for mitigation, as we have explained in the text, the circumstances she identified as "mitigating factors" are not cognizable mitigating factors and could not be the basis for mitigation even assuming for the moment that mitigation were at issue, which it is not.  Moreover, assuming Petitioner is also alleging error or abuse of discretion by the ALJ in not allowing her to present evidence (concerning mitigation or any other issue), Petitioner was afforded an opportunity to offer evidence for the ALJ's consideration for admission into the record in accordance with 42 C.F.R. Part 1005.  In any event, evidence concerning only the alleged mitigating factors would have been subject to the ALJ's authority to determine to exclude them as irrelevant and immaterial since mitigation was not properly at issue before the ALJ.  *See* 42 C.F.R. §§ 1005.4(b)(10) (stating that the ALJ has authority to "[r]eceive, rule on, exclude or limit evidence"), 1005.17(a) ("The ALJ will determine the admissibility of evidence."), 1005.17(c) ("The ALJ must exclude irrelevant or immaterial evidence.").

14  The three mitigating factors are:

(1) In the case of an exclusion under § 1001.101(a), whether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;

(2) The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual's culpability; or

(3) The individual's or entity's cooperation with Federal or State officials resulted in -

(i) Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii) The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

42 C.F.R. § 1001.102(c).

15  Analogous to the alleged mitigating factor, the Board has stated that providing medical care to a poor and underserved population was not a recognized mitigating factor.  *Hasan* at 7.
  
          /s/
        Michael Cunningham

                      Board Member
          /s/
        Constance B. Tobias

                      Board Member
          /s/
        Susan S. Yim

                      Presiding Board Member Back to top
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