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                              Yolanda Custard, DAB CR6099 (2022)
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Yolanda Custard, DAB CR6099 (2022)








  
  
    

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





Yolanda Custard,
(O.I. File No.: B-21-40920-9),
Petitioner,

v.

The Inspector General.
Docket No. C-22-277Decision No. CR6099June 13, 2022

        
              
    

      DECISION

Petitioner, Yolanda Custard, provided home services to individuals through the Illinois Department of Human Services (DHS) – Division of Rehabilitation Services (DRS) Home Services Program, an Illinois State Medicaid Waiver Program.  Petitioner pleaded guilty to a misdemeanor count of vendor fraud, related to her submission of fraudulent time sheets to DHS-DRS for home services never rendered.  Pursuant to section 1128(a)(1) of the Social Security Act (Act),1
 the Inspector General (IG) has excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of five years.

For the reasons explained below, I find that Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicaid.  The IG was therefore required to exclude her from program participation.  The duration of the exclusion is the minimum period required by section 1128(c)(3)(B) of the Act; accordingly, it is reasonable as a matter of law.

Page 2

I.  Background

As a Personal Assistant, Petitioner provided home services to Medicaid recipients through the DHS-DRS Home Services Program, which is an Illinois State Medicaid Waiver Program.2
 In 2019, DHS-DRS referred Petitioner for investigation by the Illinois State Police Medicaid Fraud Control Bureau.  IG Exhibit (Ex.) 2.  DHS-DRS alleged that, between June 16, 2017 and September 5, 2018, Petitioner submitted fraudulent time sheets for home services purportedly provided to a Medicaid recipient.  *Id*.  The investigation confirmed that, during the period under investigation, Petitioner had submitted time sheets in which she claimed to have provided in-home services during hours when she was in fact on-site at her job with another employer.  IG Ex. 3 at 1.  Based on the investigation, DHS-DRS determined that Petitioner had unlawfully received payments totaling $7,887.91.  *Id.*

In July 2021, a grand jury for the Circuit Court of Cook County, Illinois returned a four-count indictment charging Petitioner with one class 2 felony count of vendor fraud in violation of 305 Ill. Comp. Stat. § 5/8A-3(a) (Count 1), two class 2 felony counts of theft in violation of 720 Ill. Comp. Stat. §§ 5/16-1(a)(1)(A) and (1)(a)(2)(A) (Counts 2 and 3), and one class 3 felony count of forgery in violation of 720 Ill. Comp. Stat. § 5/17-3(a)(2) (Count 4).  IG Ex. 4.  Under Count 1, the indictment alleged that Petitioner

willfully, by means of false statements and representations to obtain payments under the public aid code to which she was not entitled, submitted false Division of Rehabilitation Services Home Services time sheets to the Division of Rehabilitation Services and based on said false home services time sheets the Division of Rehabilitation Services of the Illinois Department of Human Services authorized payments to [Petitioner], said amount having an aggregate value in excess of five thousand dollars ($5,000.00) but less than ten thousand ($10,000.00).

IG Ex. 4 at 1.

An amended indictment, filed August 24, 2021, reduced the charge of vendor fraud to a class A misdemeanor.  IG Ex. 5.  The amended indictment relied on the same facts but

Page 3

stated that the aggregate value of payments authorized by DRS to Petitioner was "less than one hundred fifty dollars ($150.00)."  *Id.*; *see also* IG Ex. 7.

On August 24, 2021, Petitioner pleaded guilty to Count 1 of the indictment, as amended.  IG Ex. 6 at 1; IG Ex. 7; IG Ex. 8 at 1.  The Circuit Court of Cook County, Illinois accepted her guilty plea and adjudged her guilty.  IG Ex. 6 at 1; IG Ex. 8 at 1.3
  That same day, the court entered a Sentencing Order, which included a condition that Petitioner pay $7887.91 in restitution, "payable to the Illinois Department of Human Services."  IG Ex. 6 at 3.  The record shows that Petitioner has paid the restitution amount.  IG Ex. 7.

In a letter dated December 30, 2021, the IG advised Petitioner that she was excluded from participation in Medicare, Medicaid, and all federal health care programs because she had been convicted, in the Circuit Court of Cook County, Illinois, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  IG Ex. 1.  The letter explained that the exclusion was imposed pursuant to section 1128(a)(1) of the Act.  *Id.*

Petitioner, who is self-represented, timely requested a hearing before an administrative law judge and the case was assigned to me.  I convened a telephone prehearing conference in which both parties participated.  Thereafter, I issued an Order and Schedule for Filing Briefs and Documentary Evidence (Briefing Order).

Pursuant to the Briefing Order, the IG submitted a brief and eight proposed exhibits (IG Br.; IG Exs. 1-8).  Petitioner filed a brief with no exhibits (P. Br., found at Departmental Appeals Board (DAB) Electronic Filing System (E-File) Docket Entries 6-9).  The IG waived filing a reply brief.  Petitioner did not object to the IG's exhibits.  Accordingly, in the absence of objection, I admit into evidence IG Exs. 1-8.

I directed the parties to indicate in their briefs whether an in-person hearing would be necessary, and if so, to submit the testimony of any proposed witness as "written direct testimony in the form of an affidavit or declaration."  Briefing Order ¶ 7.b.ii.  I also explained that I would hold a hearing only if a party offered witness testimony that is relevant and non-cumulative and the opposing party requested cross-examination.  *Id.* ¶ 9.  Neither party submitted the testimony of any proposed witness.  Both parties agree that an in-person hearing is not necessary.  IG Br. at 7; P. Br. (DAB E-File Docket Entry 8).  I therefore decide this case based on the written record.

Page 4

II.  Discussion

***Petitioner must be excluded pursuant to section 1128(a)(1) of the Act because she was convicted of a criminal offense related to the delivery of an item or service under the Medicaid program.4***The Act requires the Secretary of Health and Human Services (Secretary) to exclude from program participation any individual or entity that has been convicted of 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 delegated this authority to the IG.  42 C.F.R. § 1001.101(a).

***Petitioner was convicted of a criminal offense.***Petitioner does not dispute that she was convicted of a criminal offense.  Request for Hearing; P. Br. (DAB E-File Docket Entry 6).  The evidence of record demonstrates that, on August 24, 2021, Petitioner pleaded guilty to a misdemeanor count of vendor fraud, in violation of 305 Ill. Comp. Stat. § 5/8A-3(a), and the court accepted her plea and adjudicated her guilty.  IG Ex. 8 at 2; *see* IG Ex. 6 at 1.  Accordingly, Petitioner was convicted of a criminal offense as that term is defined in subsections 1128(i)(2) and (3) of the Act (an individual is "convicted" where there has been a finding of guilt against the individual, or where a court has accepted an individual's guilty plea).

***The criminal offense for which Petitioner was convicted is related to the delivery of an item or service under Medicaid.***The evidence of record proves that Petitioner's conviction is related to the delivery of items or services under the Illinois Medicaid program.  As described above, based on an investigation, the Illinois State Police Medicaid Fraud Control Bureau confirmed that, between June 2017 and September 2018, Petitioner submitted fraudulent time sheets to DHS-DRS for home services to a Medicaid recipient which, in fact, she had never rendered.  By pleading guilty to the misdemeanor count of vendor fraud, Petitioner admitted the facts as alleged in the amended indictment, namely, that, "to obtain payments under the Public Aid Code to which she was not entitled," she submitted false home services time sheets to DHS-DRS, and that based on those false time sheets, she received payments from DHS-DRS.  IG Ex. 5.

Many decisions of the DAB have held that "an offense is 'related to' the delivery of an item or service under Medicare or a state health care program if there is 'a common sense connection or nexus' between the conduct giving rise to the offense and the delivery of the item or service under a covered program."  *Saadite A. Green*, DAB No. 2940 at 6

Page 5

(2019) (and cases cited therein).  Further, the decision in *Robert C. Greenwood*, DAB No. 1423 (1993), found that submission of false time sheets to a state Medicaid program to support payment for home health care services is a program-related crime.

Here, Petitioner was convicted of a crime involving the submission of false time sheets to DHS-DRS's Home Services Program indicating home services had been provided to a Medicaid recipient when, in fact, the services had never been rendered.  DHS-DRS's Home Services Program, the program defrauded by Petitioner, is an Illinois State Medicaid Waiver Program.  These facts establish that Petitioner's conviction for vendor fraud was directly related to the delivery of items or services under the Illinois Medicaid program.

In addition, I note that the sentencing court ordered Petitioner to pay $7887.91 in restitution to DHS, the agency which administers the Illinois Medicaid program.  As noted above, DHS-DRS determined that Petitioner had unlawfully received $7,887.91 based on her submission of false time sheets to the Home Services Program.  I infer from these facts that the restitution paid to the Illinois DHS was intended to compensate the Home Services Program, a state Medicaid program, for the financial loss caused by Petitioner's actions.  It is well-settled that "a criminal offense resulting in financial loss to a state Medicaid program is 'related to' the delivery of items or services under that Medicaid program because it results 'in less funds being available to pay for covered services' delivered to Medicaid patients."  *Summit S. Shah, M.D.*, DAB No. 2836 at 8-9 (2017) (quoting *Berton Siegel, D.O.*, DAB No. 1467 at 6-7 (1994)).  I thus find that Petitioner's payment of restitution is also evidence of a nexus between her criminal offense and the Illinois Medicaid program.

Accordingly, based on the foregoing, I find that Petitioner's criminal offense was related to the delivery of items or services under a state health care program.  Petitioner is therefore subject to exclusion pursuant to section 1128(a)(1) of the Act.

***Petitioner must be excluded for the statutory minimum period of five years under section 1128(c)(3)(B) of the Act.***The Act requires that the period of exclusion for individuals convicted of offenses described in section 1128(a)(1) "shall not be less than five years."  Act § 1128(c)(3)(B); *see also* 42 C.F.R. § 1001.102.  Thus, I am required to uphold the length of Petitioner's exclusion.  Once I have concluded that Petitioner is subject to exclusion, I may not reduce Petitioner's exclusion to zero, nor may I direct the IG to reinstate Petitioner to program participation.  *See* 42 C.F.R. § 1005.4(c)(6); *see also* 42 C.F.R. § 1001.3002(f).

Petitioner argues that "a minimum of five years is harsh for a first offense" and claims that she "was never told this could affect [her] job and the ability to continue to support [her] family."  Request for Hearing; P. Br. (DAB E-File Docket Entries 1, 6).  Petitioner

Page 6

states that she is "not a deceitful person" and seeks "another chance to work in the healthcare field."  P. Br. (DAB E-File Docket Entries 6, 9).  I construe Petitioner's arguments regarding the professional and financial hardships she is facing due to her exclusion to be essentially equitable in nature.  Equitable considerations are not a basis to overturn or reduce Petitioner's exclusion.  I "may not review the IG's decision to impose an exclusion . . . on the ground that the excluded person is a good person . . . or suffering from the loss of his/her vocation."  *Donna Rogers*, DAB No. 2381 at 6 (2011); *see also Stefan Murza, D.C.*, DAB No. 2848 at 4 (2018).

III.  Conclusion

For the reasons explained above, I conclude that the IG was required to exclude Petitioner pursuant to section 1128(a)(1) of the Act due to her conviction of a criminal offense related to the delivery of an item or service under the Medicaid program.  An exclusion pursuant to section 1128(a)(1) must be for a minimum period of five years; accordingly, the length of Petitioner's exclusion is reasonable as a matter of law.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. The current version of the Social Security Act can be found at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section. back to note 1
                      2. Pursuant to the Illinois Administrative Code, "[t]he Department of Human Services' (DHS) Home Services Program . . . is a Medicaid Waiver Program (42 CFR [§] 440.180) designed to prevent the unnecessary institutionalization of individuals who may instead be satisfactorily maintained at home at a lesser cost to the State."  Ill. Admin. Code tit. 89, § 676.10. back to note 2
                      3. The court dismissed the remaining counts of the indictment nolle prosequi.  IG Ex. 7; IG Ex. 8 at 2 (indicating a disposition of "Nolle Prosequi" as to Counts 2-4). back to note 3
                      4. My findings of fact and conclusions of law appear as headings in bold italic type. back to note 4 Back to top
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