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                              Sylvie Wamba, DAB CR6070 (2022)
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Sylvie Wamba, DAB CR6070 (2022)








  
  
    

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





Sylvie Wamba
(OI File No.: B-20-40507-9),
Petitioner,

v.

The Inspector General,
U.S. Department of Health and Human Services.
Docket No. C-22-166Decision No. CR6070May 4, 2022

        
              
    

      DECISION

Petitioner, Sylvie Wamba, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)), effective December 20, 2021.  Petitioner’s exclusion for five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a‐7(c)(3)(B)).

I.  Background

The Inspector General of the US Department of Health and Human Services (IG) notified Petitioner by letter dated November 30, 2021, that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  The IG cited section 1128(a)(1) of the Act as the basis for Petitioner’s exclusion.  The IG stated that the exclusion was based on Petitioner’s conviction in the Franklin County Municipal Court, Columbus, Ohio, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  IG Exhibit (IG Ex.) 1 at 1.

Petitioner timely filed a request for hearing (RFH) on December 13, 2021.  On December 14, 2021, the case was assigned to me to hear and decide.  I convened a telephone

Page 2

prehearing conference on January 4, 2022, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on January 4, 2022 (Prehearing Order).

On February 1, 2022, the IG filed a motion for summary judgment, supporting brief, and IG Exs. 1 through 5.  On February 28, 2022, Petitioner timely filed a brief in opposition (P. Br.) with two exhibits listed on Petitioner’s exhibit list as Petitioner’s exhibits (P. Exs.) 1 and 2 but the individual exhibits are not marked with exhibit numbers.  The IG filed a reply brief (IG Reply) on March 17, 2022.  Petitioner filed a sur-reply brief (P. Reply) on March 28, 2022.

Petitioner did not object to my consideration of IG Exs. 1 through 5, and they are admitted and considered as evidence.  The IG objects to P. Exs. 1 and 2 on the bases that the exhibits are irrelevant and collaterally attack the underlying conviction.  IG Reply at 5-6.  P. Ex. 1 is listed on Petitioner’s exhibit list as “Martez Morris License Verification” and P. Ex. 2 is listed as “Martez Morris’ Online Verification Checks.”  An administrative law judge (ALJ) determines the admissibility of evidence and is not bound by the Federal Rules of Evidence.  42 C.F.R. § 1005.17(a)–(b).  I must exclude irrelevant or immaterial evidence.  42 C.F.R. § 1005.17(c).  Under the Federal Rules of Evidence, the test for whether evidence is relevant is whether the evidence has “any tendency to make a fact more or less probable than it would be without the evidence;” and “the fact is of consequence in determining the action.”  Fed. R. Evid. 401.  The only issue before me is whether there is a basis to exclude Petitioner and the elements that trigger exclusion are 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.  Act § 1128(a)(1); 42 C.F.R. § 1001.101(a).  Neither of Petitioner’s exhibits make a fact of consequence more or less probable, that is, neither exhibit has any tendency to show that the elements that trigger exclusion are not present in this case.  Further, Petitioner is not permitted to collaterally attack her underlying conviction in this forum, which means that I may not review whether she was properly convicted by the state court.  42 C.F.R. § 1001.2007(d).  I may only consider the facts related to her conviction to determine whether the offense of which she was convicted was related to the delivery of a health care item or service under Medicare or a state health care program.  Act § 1128(a)(1).  Therefore, P. Exs. 1 and 2 are simply not relevant to any issue that I may decide, and Petitioner’s exhibits may not be admitted as evidence.

Page 3

II.  Discussion

**Applicable Law**Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an ALJ and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).

Pursuant to section 1128(a) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted under federal or state law of, among other things, a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).1

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of not less than five years.  42 C.F.R. § 1001.102(a).  The Secretary has published regulations that establish aggravating factors that the IG may consider to extend the period of exclusion beyond the minimum five-year period, as well as mitigating factors that may be considered only if the minimum five‐year period is extended.  42 C.F.R. § 1001.102(b), (c).  The IG imposed the minimum authorized five-year exclusion and aggravating and mitigating factors are not relevant in this case.

In this proceeding, the standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).

Page 4

**Issues**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).

****Findings of Fact, Conclusions of Law, and Analysis****My conclusions of law are set forth in bold text followed by my findings of fact and analysis.

**Petitioner timely filed her request for hearing, and I have jurisdiction.**There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

**Summary judgment is appropriate.**Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have a right to participate in the hearing.  42 C.F.R. §§ 1005.2‐.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  *Tanya A. Chuoke, R.N.*, DAB No. 1721 (2000); *David A. Barrett*, DAB No. 1461 (1994);

Page 5

*Robert C. Greenwood*, DAB No. 1423 (1993); *Thelma Walley*, DAB No. 1367 (1992); *Catherine L. Dodd, R.N.*, DAB No. 1345 (1992); *John W. Foderick, M.D.*, DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  *Surabhan Ratanasen, M.D.*, DAB No. 1138 (1990); *Foderick*, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmovant must allege facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense.  The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment.  To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder.  On summary judgment, the judge does not weigh the evidence or attempt to determine the truth.  Rather, the judge accepts the nonmovant’s evidence as true and draws all permissible inferences in the nonmovant’s favor.  *Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 247-57 (1986).

There is no genuine dispute of material fact in this case.  Petitioner does not dispute that she pleaded guilty or that the state court accepted her guilty plea.  Petitioner also does not specifically dispute that the offense of which she was convicted was related to the delivery of a health care item or service under Medicare or a state health care program.  To the extent Petitioner does dispute the nexus between her criminal conduct and the delivery of a health care item or service under Medicare or Medicaid, the issue is resolved by applying the law to the undisputed facts.  RFH; P. Br. at 2-3; IG Ex. 5.  Petitioner urges in her reply brief that there are genuine issues of material fact in dispute, including whether Petitioner pleaded guilty to the correct offense, whether the IG seeks to exclude her under the correct provision of the Act, and whether the period of exclusion is reasonable.  P. Reply at 3.  The issues Petitioner raises are issues of law that must be resolved against her.  Whether Petitioner’s guilty plea was to the correct offense is not an issue that I may consider as Petitioner is not permitted to collaterally attack her conviction in this forum.  42 C.F.R. § 1001.2007(d).  As discussed in more detail hereafter, the IG has no discretion to choose to exclude Petitioner under the permissive exclusion provision of section 1128(b) of the Act, when mandatory exclusion is required by section 1128(a)(1) of the Act.  Finally, there is no issue of whether the period of exclusion is unreasonable because the IG imposed the minimum mandatory period of five years.  42 C.F.R. § 1001.2007(a)(2).

Accordingly, I conclude that summary judgment is appropriate.

Page 6

**Section 1128(a)(1) of the Act requires Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs.****Undisputed Facts**The material facts are not disputed, and any inferences are drawn in Petitioner’s favor on summary judgment.

On June 29, 2020, a criminal complaint was filed against Petitioner in the Franklin County Municipal Court, Columbus, Ohio.  The complaint alleged one count that Petitioner “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” in violation of Ohio Rev. Code § 2909.07(A)(6), a first-degree misdemeanor.  IG Ex. 4 at 1.

The Ohio Attorney General’s Health Care Fraud Section (Ohio AG), in a memorandum dated June 24, 2020, requested authority of the Ohio AG to prosecute Petitioner and accept a guilty plea to one count of criminal mischief in violation of Ohio Rev. Code § 2909.07(A)(6).  The Ohio AG alleged in the memorandum that Target Home Health (Target), which is owned by Petitioner, was an Ohio Medicaid provider agency.  The Ohio AG alleged that Target hired Martez Morris (Morris) as a nurse, and he was employed for approximately 90 days.  The Ohio AG alleged that Morris had no nursing license and used a false identity to obtain employment with Target.  The Ohio AG alleged that Target failed to conduct a required criminal background check.  According to the Ohio AG, Petitioner personally hired Morris as a nurse.  IG Ex. 2 at 1; IG Ex. 3.  A criminal background check by a Medicaid provider such as Petitioner is required for an employee or prospective employee.  Ohio Rev. Code § 5164.34 (2021).2
  According to the Ohio AG’s memorandum Petitioner had 60 days to conduct a criminal background check on Morris, but she failed to do so.  IG Ex. 2 at 1.  After the deadline to obtain a criminal background check elapsed, Petitioner allegedly continued to bill the Ohio Medicaid program for the services rendered by Morris for about 30 days.  IG Ex. 3.  Further investigation revealed the hiring practices of Target, including that Target had previously employed eight other employees for a period longer than 60 days without conducting background checks on them, which was contrary to what was required by law.  IG Ex. 2 at 1; IG Ex. 3.  For a period of two weeks, Target also employed an

Page 7

individual excluded from the Medicaid program because of a conviction for patient abuse.  IG Ex. 3.

On June 29, 2020, Petitioner pleaded guilty to one count of violating Ohio Rev. Code § 2909.07(A)(6), and the Court accepted Petitioner’s guilty plea.  IG Ex. 5.  The Court ordered Petitioner to pay a $200 fine plus court costs.  IG Ex. 5.

Petitioner does not dispute that she was convicted.  RFH; P. Br. at 5.

**Analysis**The IG cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute provides in relevant part:

(a) MANDATORY EXCLUSION. – The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1) CONVICTION OF PROGRAM-RELATED CRIMES. – Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

Act § 1128(a)(1).  Congress has, by the plain language of section 1128(a)(1) of the Act, required the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity:  (1) convicted of a criminal offense, whether a misdemeanor or felony; (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service was under Medicare or a state health care program.

An individual or entity is considered to have been “convicted” of an offense if, among other things, “a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court.”  Act § 1128(i)(3) (42 U.S.C. § 1320a-7(i)(3)).  Here, the trial court accepted Petitioner’s guilty plea to violating Ohio Rev. Code § 2909.07(A)(6).  IG Ex. 5.  The court’s acceptance of Petitioner’s guilty plea constitutes a conviction of a criminal offense for purposes of Petitioner’s exclusion under section 1128(a)(1) of the Act.  Act § 1128(i)(3).

Congress requires that Petitioner be excluded if she was convicted of an offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).  Petitioner contends that the “common sense” analysis put forth by the IG is

Page 8

predicated on an excessively expansive theory of the relationship between her criminal conduct and the delivery of an item or service under Medicare or a state health care program.  Petitioner’s argument may be construed to dispute that the offense of which she was convicted was related to the delivery of an item or service under Medicaid.  P. Br. at 5.  Petitioner correctly notes that the term “related to” is not defined by the Act or regulations.  P. Br. at 5.  However, appellate panels of the Board have long held that the statutory terms describing an offense do not control whether that offense is “related to” the delivery of a health care item or service under Medicare or a state health care program for purposes of exclusion pursuant to section 1128(a) of the Act.  *E.g., Dewayne Franzen*, DAB No. 1165 (1990) (inquiry is whether conviction is related to Medicaid fraud, not whether the petitioner was convicted of Medicaid fraud).  Rather, an ALJ must examine whether there is a “common sense connection or nexus between the offense and the delivery of an item or service under the program.”  *Scott D. Augustine*, DAB No. 2043 at 5-6 (2006) (citations omitted).  To determine whether there is such a nexus or common-sense connection, “evidence as to the nature of an offense may be considered,” such as the “facts upon which the conviction was predicated.”  *Robert C. Hartnett*, DAB No. 2740 at 7 (2016) (quoting *Berton Siegel, D.O.*, DAB No. 1467 at 6-7 (1994)).  An ALJ may also use extrinsic evidence to “[fill] in the circumstances surrounding the events which formed the basis for the offense of which Petitioner was convicted.”  *Narendra M.* *Patel, M.D*., DAB No. 1736 at 7 (2000).  The terms “related to” and “relating to” in 42 U.S.C. § 1320a-7 simply mean that there must be a nexus or common-sense connection.  *Friedman v. Sebelius*, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotes omitted); *Quayum v. U.S. Dep’t of Health and Human Servs.*, 34 F. Supp.2d 141, 143 (E.D.N.Y. 1998).

In this case, there is a nexus between Petitioner’s offense and the delivery of a health care item or service under a state health care program, specifically Ohio Medicaid.  It is not disputed that Petitioner was charged and convicted of criminal mischief by knowingly altering or modifying data contained in a computer, computer software, or computer program.  Ohio Rev. Code § 2909.07(A)(6); CMS Ex. 5.  Although the 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, the underlying facts of the conviction establish the required nexus.  Petitioner is in the business of providing home health care to Medicaid beneficiaries through services delivered by Petitioner’s employees.  RFH; CMS Exs. 2, 3.  There is no dispute that Petitioner’s business billed Ohio Medicaid for services rendered by Petitioner’s employees.  CMS Exs. 2, 3.  Ohio Rev. Code § 5164.34 required that Petitioner’s business conduct criminal record checks for employees and prospective employees who would render health care services to Ohio Medicaid beneficiaries.  Petitioner failed to conduct the required criminal background checks on several former employees including Morris.  The nexus or common-sense connection between Petitioner’s conduct and the offense of which she was convicted is established by the

Page 9

facts underlying the offense of which she was convicted.  The actual wording of the charge does not control the outcome in this case.3

Petitioner argues that she did not truly understand the nature of the crime to which she pleaded guilty.  P. Br. at 5.  As already discussed, the facts underlying the charged offense establishes the required nexus between the offense and the delivery of a health care item or service under Ohio Medicaid.  Petitioner’s argument is an impermissible collateral attack on the providence of her guilty plea and her underlying conviction.  By claiming that she mistakenly pleaded guilty to an offense that does not match her criminal conduct Petitioner attempts to have me review the providence of her guilty plea and the acceptance of that plea by the state court.  This is not a forum for such a challenge.

Petitioner contends that excluding her from Medicare, Medicaid, and all federal health care programs is more burdensome than her conviction.  RFH.  Petitioner’s intent is unclear.  Petitioner’s argument may be construed to be that her exclusion from all federal health care programs amounts to double jeopardy and cruel and unusual punishment.  Petitioner’s argument may also simply be that her exclusion is unfair.  I am required to follow the federal statutes and regulations and have no authority to declare them unconstitutional.  *Susan Malady, R.N.*, DAB No. 1816 (2002); 42 C.F.R. § 1005.4(c)(1).  In interpreting and applying the Act and regulations, I must do so consistent with Constitutional principles.  However, in this case there is no issue of interpretation for me.  There is no merit to an argument that exclusion for a conviction amounts to double jeopardy or cruel and unusual punishment.  Exclusions imposed by the IG are civil sanctions, remedial in nature and not punitive and criminal.  Because exclusions are remedial sanctions, they do not violate the double jeopardy clause or the prohibition against cruel and unusual punishment.  *Manocchio v. Kusserow*, 961 F.2d 1539 (11th Cir. 1992); *Greene v. Sullivan*, 731 F. Supp. 838 (E.D. Tenn. 1990); *Joann Fletcher Cash*, DAB No. 1725 (2000); *Douglas Schram, R.Ph.*, DAB No. 1372 (1992); and *Janet Wallace, L.P.N.*, DAB No. 1326 (1992).4
  Arguments that the exclusion provisions are

Page 10

anything but remedial have been found to be without merit.  *Manocchio*, 961 F.2d at 1541-42;*Greene*, 731 F. Supp. at 839-40.  Many federal courts have also rejected claims that the Secretary’s exclusion procedures amount to a deprivation of due process, finding no constitutionally protected property or liberty interests.  *Rodabaugh v. Sullivan*, 943 F.2d 855 (8th Cir. 1991); *Lavapies v. Bowen*, 883 F.2d 465 (6th Cir. 1989); *Hillman Rehab. Ctr. v. U.S. Dep’t. of Health & Human Servs.*, No. 98-3789 (GEB), slip op. at 16, 1999 WL 34813783, at 16 (D.N.J. May 13, 1999); *Travers v. Sullivan*, 801 F. Supp. 394, 404‐05 (E.D. Wash. 1992), *aff’d*, *Travers v. Shalala*, 20 F.3d 993 (9th Cir. 1994).  If Petitioner seeks equitable relief on grounds that her exclusion is unfair, I have no authority to grant such relief.  *Matthew J. Girardy, DMD*, DAB No. 2987 at 7 (2020).

Accordingly, I conclude that there is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act.

**The 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.**Petitioner argues that the IG should not have excluded her under the mandatory exclusion provisions of section 1128(a) of the Act.  Petitioner argues that, if there is a basis for exclusion, the IG should have used her permissive exclusion authority under section 1128(b) of the Act.  P. Br. at 2, 5-6.  Petitioner’s argument is contrary to law.  The IG has no discretion to impose a permissive exclusion where an individual’s conviction satisfies the elements of section 1128(a)(1) of the Act.  The “courts have repeatedly held that the I.G. is . . . required to impose a mandatory exclusion even if an individual’s conduct also falls within the scope of a permissive exclusion provision.”  *Gregory J. Salko, M.D*., DAB No. 2437 at 4 (2012), citing *Timothy Wayne Hensley*, DAB No. 2044 at 16 (2006) (and cases cited therein); *Craig Richard Wilder*, DAB No. 2416 at 7 (2011); *Lorna Fay Gardner*, DAB No. 1733 at 6 (2000).  Congress required Petitioner’s exclusion pursuant to section 1128(a)(1) and that requirement is binding upon the Secretary, the IG, the Board, and me.

**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.**Page 11

I have concluded that there is a basis to exclude Petitioner pursuant to section 1128(a)(1) of the Act.  Therefore, the minimum period of exclusion authorized by Congress in section 1128(c)(3)(B) of the Act, is five years.  *Nenice Marie Andrews*, DAB No. 2656 at 5 (2015); *Scott D. Augustine*, DAB No. 2043 at 13-14 (2006).

**Petitioner’s exclusion for five years is not unreasonable as a matter of law.**Congress established five years as the minimum period of exclusion for exclusions pursuant to section 1128(a) of the Act.  Act § 1128(c)(3)(B).  Pursuant to 42 C.F.R. § 1001.2007(a)(2), when the IG imposes an exclusion in accordance with section 1128(a) of the Act for the statutory minimum period of five years, there is no issue of whether the period is unreasonable.

Petitioner argues that there are mitigating factors, including for example that she made corrections in her business practices, web searches were done pending criminal background checks, and Target continues to serve the community without charging Ohio Medicaid pending the decision in this case.  She also argues that the five-year exclusion will have dire consequences for her and her business.  P. Br.; RFH.  However, the mitigating factors urged by Petitioner and the impact of her exclusion may not be considered because I have no authority to reduce the period of exclusion below five years.  “Only if any of the aggravating factors set forth in paragraph (b) of . . . section [1001.102] justifies an exclusion longer than 5 years, may mitigating factors be considered as a basis for reducing the period of exclusion to no less than 5 years.”  42 C.F.R. § 1001.102(c).  Here, the IG did not consider any aggravating factors to extend the period of exclusion beyond the five-year mandatory minimum, which prevents me from considering any mitigating factors to reduce the period of exclusion.  Petitioner argues that the five-year exclusion may cause Target to close.  RFH.  However, the Board has previously found such arguments may not be considered and declined to consider an individual’s age, financial, or employment prospects when considering the reasonableness of a period of exclusion.  *Jeremy Robinson*, DAB No. 1905 at 5 (2004) (“The practical consequences to the excluded individual or entity are not mitigating factors for consideration.”).  The possible closure of Petitioner’s business, although detrimental to Petitioner, is not a mitigating factor authorized by 42 C.F.R. § 1001.102(c).

Accordingly, I conclude that Petitioner’s exclusion for a period of five years is not unreasonable as a matter of law.

Page 12

III.  Conclusion

For the foregoing reasons, 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.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Citations are to the 2020 revision of the Code of Federal Regulations, unless otherwise stated. back to note 1
                      2. Available at www.codes.ohio.gov (last visited Apr. 28, 2022). back to note 2
                      3. Petitioner states that she thought she was pleading guilty to failure to obtain background checks on nine of her employees.  P. Br. at 1.  Although that is not the conduct specifically alleged by the charge to which Petitioner pleaded guilty, the evidence shows that the failure to obtain criminal background checks was the factual basis that led to the charge.  Why the Ohio AG chose the specific charge is not reflected by the evidence.  However, Petitioner states that the Ohio AG elected not to proceed on a Medicaid fraud charge in exchange for Petitioner’s guilty plea to the misdemeanor offense of criminal mischief.  P. Br. at 1-2. back to note 3
                      4. The exclusion remedy serves twin congressional purposes:  the protection of federal funds and program beneficiaries from untrustworthy individuals and the deterrence of health care fraud.  S. Rep. No. 100-109, at 1-2 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 686 (“clear and strong deterrent”); Cash, DAB No. 1725 at 18 (discussing trustworthiness and deterrence). back to note 4 Back to top
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