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                              Laurie Provost, DAB CR6110 (2022)
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Laurie Provost, DAB CR6110 (2022)








  
  
    

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





Laurie Provost
(OI File No.:  B-20-41122-9),
Petitioner,

v.

The Inspector General.
Respondent.
Docket No. C-21-812Decision No. CR6110July 5, 2022

        
              
    

      DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Petitioner, Laurie Provost, from participation in Medicare, Medicaid, and all other federal health care programs for eight years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  Petitioner challenges both the imposition of the exclusion and the length of the exclusion.  Petitioner’s exclusion for the minimum period of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).  The IG proved the presence of two of the three aggravating factors and is therefore permitted to extend the minimum exclusion period of five years.  However, an additional exclusion of three years, for a total minimum exclusion of eight years, is unreasonable based on consideration of the specific facts and circumstances of the two applicable aggravating factors.  I affirm the IG’s exclusion determination and reduce the length of exclusion to seven years.

Page 2

I.   Procedural History

The IG issued a notice to Petitioner on March 31, 2021, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for eight years.  IG Ex. 1 at 1.  The IG cited section 1128(a)(1) of the Act, which mandates exclusion when an individual is convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, and specified that Petitioner’s exclusion was due to her conviction, as the term is defined in section 1128(i) of the Act (42 U.S.C. 1320a-7(i)), in the Union County Superior Court for the State of New Jersey (state court).  *Id*.  The IG further specified she had imposed an eight-year exclusion, three years longer than the five-year minimum, based on the presence of the following three factors:

1.  The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more entities of $50,000 or more.

2.  The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.

3.  The sentence imposed by the court included incarceration.

*Id.*at 1-2.

Petitioner timely requested a hearing and I was designated to hear and decide this case.  The Civil Remedies Division issued my Standing Order on June 4, 2021, as well as an acknowledgment letter notifying the parties that I had scheduled a telephonic pre-hearing conference in this matter.

I conducted the pre-hearing telephone conference on July 7, 2021, the substance of which I memorialized in my July 14, 2021 Order (Summary Order), including a schedule for submission of arguments and evidence by the parties.  The IG submitted a brief (IG Br.), a reply brief (IG Reply), and six exhibits (IG Exs. 1-6), while Petitioner submitted a brief (P. Br.), and 14 exhibits, labeled alphabetically rather than numerically (P. Exs. A-N).  The IG subsequently filed a reply (IG reply).  Petitioner did not file a surreply or request leave to do so within five days from the date the IG filed her reply, as provided for in my Summary Order.

Page 3

On February 17, 2022, I directed the parties to file supplemental briefs addressing the application of one of the aggravating factors the IG cited as a basis to extend Petitioner’s exclusion beyond five years (that the sentence imposed by the court in the underlying criminal case included incarceration).  On April 26, 2022, Petitioner filed a supplemental brief (P. Supp. Br.) with two exhibits (A, which is identical to P. Ex. K, and B, which is identical to the subsequently-filed IG Ex. 8) appended thereto.  On May 6, 2022, the IG filed a responsive supplemental brief (IG Supp. Br.), an amended exhibit list, and two additional exhibits (IG Exs. 7 and 8).

II.   Exhibits and Decision on the Record

Neither party objected to the other party’s proposed exhibits.  Therefore, I admit IG Exs. 1-8 and P. Exs. A-N into evidence.  The IG indicated an in-person hearing was not necessary in this matter.  IG Br. at 11-12.

Petitioner, however, stated that an in-person hearing is necessary and that “this particular matter is not ripe for adjudication on the written record” based on her view that the underlying state criminal case “had so many intricacies and twists and turns that deviate from the normal course of simply setting forth a clear cogent plea on the record.”  P. Br. at 27.  Petitioner, who is represented by counsel, further stated that at a hearing Petitioner would “likely” offer “testimony of one or more witnesses,” including “Petitioner herself, the [Deputy Attorney General] Oriana Nadraga,” the prosecutor in the underlying state criminal case, “and if necessary possibly Her Honor Judge Caulfield,” the presiding judge in that case.  *Id.*  Further, Petitioner explained that those “witnesses may be better able to explain whatever disputes [may be] raised in the [IG Reply], if indeed one shall be forthcoming” and that “it is only after receipt of same will we be able to assess where a witness may be necessary.”  *Id*.  However, as noted above, Petitioner did not file a surreply or request leave to do so, and has not otherwise indicated whether, after her receipt of the IG’s reply, she contends witness testimony at an in-person hearing is necessary.

Moreover, my Standing Order provides that:

If a party will be presenting witnesses, the party’s prehearing exchange will include a list of all proposed fact and expert witnesses along with a brief summary of the testimony that the party anticipates each proposed witness will provide.  A party must also submit prior written statements of witnesses for whom direct testimony will be solicited and prior sworn testimony of experts that has been subject to adverse examination.

Standing Order § 6; *see also*42 C.F.R. §§ 1005.8, 1005.16(b).

Page 4

Petitioner did not submit, either with her exchange or following the IG’s reply, a list of proposed witnesses or the prior written statements of any of the potential witnesses she alluded to in her prehearing brief.  Therefore, I conclude that Petitioner no longer contends an in-person hearing is necessary in this case.

Further, Petitioner has not shown why testimony from herself, the prosecutor or the presiding superior court judge, would either not be duplicative of the documentary evidence already in the record or be relevant to any of the issues I must decide in this case.  On the former point, I also note that, both parties submitted court records pertaining to the underlying plea agreement between Petitioner and the State of New Jersey, and neither party objected to the other party’s exhibits and Petitioner does not otherwise assert that the documents contain incorrect or incomplete information.  Thus, Petitioner has not shown there is a genuine factual dispute about Petitioner’s plea arrangement for which witness testimony may be useful to resolve.

Additionally, to the extent Petitioner might have testified about facts pertaining to the underlying charges in the state criminal proceeding, the regulations preclude Petitioner from collaterally attacking (and me from reviewing) the basis for a conviction where, as here, that conviction forms the basis for the IG’s exclusion.  42 C.F.R. § 1001.2007(d).  I also note that Petitioner submitted, as P. Ex. F, sworn affidavits dated August 6, 2013, and August 8, 2013, respectively, from two individuals whom she did not identify in a list of witnesses she would present in this proceeding.  *See* Standing Order § 6.  Further, the substance of the affidavits pertains to the veracity of the charges against Petitioner in that proceeding, which is not at issue in this proceeding.  42 C.F.R. § 1001.2007(d).  I therefore proceed to a decision based on the record before me.  *See*Civ. Remedies Div. P. § 19(d).

III.   Issues

The Secretary of Health and Human Services (the Secretary) has by regulation limited my scope of review to two issues:  whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs and, if so, whether the eight-year exclusion imposed by the IG is unreasonable.  *See* 42 C.F.R. § 1001.2007(a)(1).

IV.   Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary.  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified at 42 C.F.R. § 1005.3.

Page 5

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 a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Act § 1128(a)(1).  A state health care program includes a state Medicaid program.  Act § 1128(h)(1) (42 U.S.C. § 1320a-7(h)(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, among other things, a plea of guilty or no contest is accepted by a court.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).1  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).

Exclusion for a minimum period of five years is mandatory for any individual or entity convicted of a criminal offense for which exclusion is required by section 1128(a) of the Act.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)).  Pursuant to 42 C.F.R. § 1001.102(b), an individual’s period of exclusion may be extended based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years, however, are mitigating factors considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).

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 ¶ 5.

V.   Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

**A.  I have jurisdiction to hear this case.**

Petitioner timely requested a hearing.  I therefore have jurisdiction to hear and decide this case.  *See* 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); *see also* 42 U.S.C. § 1320a-7(f)(1).

**B.  Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under Medicare or a State health care program requiring exclusion under 42 U.S.C. § 1320a-7(a)(1).**

Page 6

The IG must exclude an individual from participation in federal health care programs if the individual was convicted of a criminal offense related to the delivery of a health care item or service under Medicare or a State health care program.  42 U.S.C. § 1320a-7(a)(1).

On May 14, 2014, a New Jersey State grand jury returned a 30-count indictment (under Docket No. 14-05-00054-S) against Petitioner.  IG Ex. 3.  Specifically, the grand jury charged Petitioner with:

One count (Count 1) of Theft by Deception, in the second degree, in violation of New Jersey Statutes Annotated (N.J.S.A.) §§ 2C:20-4 and 2C:2-6;
	One count (Count 29) of Theft by Deception, in the third degree, in violation of N.J.S.A. §§ 2C:20-4 and 2C:2-6;
	23 counts (Counts 2-5, 7-24, and 30) of Health Care Claims Fraud, in the second degree, in violation of N.J.S.A. § 2C:43-21-4.3(c);
	One count (Count 6) of Health Care Claims Fraud, in the third degree, in violation of N.J.S.A. § 2C:43-21-4.3(c);
	One count (Count 25) of Medicaid Fraud, in the third degree, in violation of N.J.S.A. § 30:4D-17;
	One count (Count 26) of Forgery, in the fourth degree, in violation of N.J.S.A. § 2C:21-1(a)(2) and 2C:2-6; and
	Two counts (Counts 27 and 28) of Falsifying or Tampering with Records, in the fourth degree, in violation of N.J.S.A. § 2C:21-4.*Id*.

Particularly at issue in this case, Count 25 of the indictment charged that:

Between on or about March 6, 2010, and on or about July 11, 2013 . . . [Petitioner] did knowingly and willfully make or cause to be made a false statement or representation of a material fact in a document necessary to receive any benefit or payment under the New Jersey Medical Assistance and Health Services Act (“Medicaid”), N.J.S.A. § 30:4D-1 et seq., with an intent to fraudulently secure payments or benefits not

Page 7

authorized under the Act; that is, [Petitioner] did knowingly fail to disclose the fact that her professional license had been suspended and/or revoked to the Medicaid program, and did knowingly submit fraudulent claims to the Medicaid program and Medicaid managed care organizations, contrary to the provisions of N.J.S.A. § 30:4D-17[.]

IG Ex. 3 at 26.

On September 23, 2020, Petitioner entered into a plea agreement with the New Jersey Office of the Attorney General (AG’s office) whereby she pled guilty to an amended Count 25, Medicaid Fraud, in the third degree and, in exchange, the prosecutor agreed to recommend that the judge dismiss the remaining counts in the indictment.  IG Exs. 5, 6.  On that day, the parties presented to the state court a New Jersey Judiciary Plea Form and an attached plea agreement letter, each signed by Petitioner, her counsel (who also represents her in this proceeding), and the Deputy Attorney General prosecuting the matter on behalf of the New Jersey AG’s office.  IG Exs. 5, 6; IG Ex. 2 at 1-3, 6-7.

The Plea Form states that Count 25 of the indictment was amended to specify Petitioner’s offense was a violation of N.J.S.A. § “30:4D-17a,” whereas the indictment had charged a violation of N.J.S.A. § 30:4D-17, without reference to a specific subsection thereunder.  *Compare*IG Ex. 3 at 26 *with*IG Ex. 5 at 1.  The Plea Form specifies, as the sentence the prosecutor agreed to recommend:

Probation conditioned upon 364 days in county jail, to be served in reverse.  Length of probation shall be left to the Court’s discretion.  The State will recommend that should the defendant successfully complete 2 years of probation, she [will] not be required to serve any time in county jail.  In addition, should she successfully complete 2 years of probation, the State will not object to a motion for early termination.  Restitution in the [amount] of $79,000 shall be satisfied in full by the funds forfeited in the civil forfeiture matter.

IG Ex. 5 at 3.

The Plea Form also describes that “any other promise or representations” made by Petitioner, her attorney, or the prosecutor are contained in the “[a]ttached 7.13.20 [July 13, 2020] Plea Agreement Letter.”  *Id*. at 5.  The July 13, 2020 letter from the New Jersey AG’s office was signed by Deputy Attorney General Oriana Nadraga and “sets forth the full and complete plea agreement between [Petitioner] and the Division of Criminal Justice, Office of the Insurance Fraud Prosecutor” within the New Jersey AG’s office.  IG

Page 8

Ex. 6 at 1.  The plea agreement letter states, among other things, that “[t]he State will accept from [Petitioner] a guilty plea to an amended Count Twenty-Five, third degree Medicaid Fraud, in violation of N.J.S.A. § 30:4D-l 7(a)” and that, if Petitioner entered a guilty plea to that charge, the State would agree to the following terms and conditions:

It is understood and agreed that the State will recommend that your client be sentenced to probation, conditioned on 364 days in county jail, to be served in reverse.  It is understood and agreed that the length of probation shall be left to the Court’s discretion.  The State will recommend that should your client successfully complete two years of probation, she not be required to serve any time in county jail.  In addition, should she successfully complete two years of probation, the State will not object to a motion for early termination of probation.  It is further understood and agreed that if, during the course of probation, your client is charged with a new offense, only offenses that are distinct from the offenses charged in the above-referenced Indictment should be considered a potential violation of probation.

It is understood and agreed that the State will recommend that all of the remaining counts of Indictment No. 14-05-00054-S, as well as the offenses charged in Complaint-Summons S-2013-000056-1344, be dismissed.

It is understood and agreed that at the time of the plea, parties shall finalize the terms of the Final Judgment by Consent in the parallel forfeiture matter (Docket No. L-3884-13).  The Final Judgment by Consent shall be presented to the Judge for execution at the time of sentencing.  Pursuant to that Judgment, your client shall forfeit $79,000.00 of the seized funds.  That money shall satisfy full restitution to the N.J. Medicaid program.  The State shall release the remaining balance of any seized funds.  The State shall also return the two seized vehicles, which are in its possession.  Your client shall accept those vehicles in their current condition and shall be responsible for their pick-up.  The State shall agree to the discharge of the lis pendens currently placed on your client’s home.  In addition, the State shall agree to unfreeze any and all bank accounts.

*Id*. at 1-2.

Page 9

The July 13, 2020 plea agreement letter was countersigned by Petitioner and her attorney on the same date as the Plea Form, September 23, 2020.  IG Ex. 6 at 3; IG Ex. 5 at 5.  Also on September 23, 2020, the parties presented the Plea Form and attached plea agreement letter to the state court during a plea hearing, and the court accepted Petitioner’s guilty plea to amended Count 25 during that hearing.  IG Ex. 2 at 1-3, 6-7, 35.

On October 26, 2020, the state court sentenced Petitioner to the “reverse sentence” Petitioner and the New Jersey AG’s office had agreed to in the plea deal – two years of probation followed by 364 days in the Union County Jail.  P. Ex. N (sentencing hearing transcript pp. 25-29); IG Ex. 4 at 1; IG Ex. 5 at 3.  The state court memorialized the sentence in a Judgment of Conviction & Order for Commitment entered November 16, 2020.  The Judgment of Conviction specified that, pursuant to Petitioner’s guilty plea, the state court adjudicated her guilty of the amended count 25, a violation of N.J.S.A. § 30:4D-17(a), in the third degree.  IG Ex. 4 at 1.  The Judgment of Conviction also provided, among other things, that Petitioner could file a “[m]otion to reconsider the custodial portion of this sentence” by October 25, 2021.  IG Ex. 4 at 1.

N.J.S.A. § 30:4D-17(a) provides that:

(a) Any person who willfully obtains benefits under [the New Jersey Medical Assistance and Health Services Act] to which a person is not entitled or in a greater amount than that to which a person is entitled and any provider who willfully receives medical assistance payments to which a provider is not entitled or in a greater amount than that to which a provider is entitled is guilty of a crime of the third degree, provided, however, that the presumption of nonimprisonment set forth in subsection e. of N.J.S.2C:44-1 for persons who have not previously been convicted of an offense shall not apply to a person who is convicted under the provisions of this subsection.

The New Jersey Medical Assistance and Health Services Act establishes the New Jersey Medical Assistance and Health Services Program, the state’s Medicaid program.  N.J.S.A. § 30:4D-1 et seq.

Petitioner concedes she was “convicted” as that term is defined in section 1128(i) of the Act.  *See* P. Br. at 13 (describing that Petitioner “was convicted, by way of plea.”).  Here, the state court’s acceptance of Petitioner’s guilty plea, as well as the court’s entry of a judgment of conviction against her, each constitute a “conviction” under section 1128(i) of the Act.  42 U.S.C. § 1320a-7(i)(1), (3); *see also*42 C.F.R. § 1001.2 (subsections (a) and (c) under the definition of “Convicted.”).

Page 10

However, Petitioner contends that her conviction was not for an offense related to the delivery of an item or service under Medicare or a State health care program.  Instead, Petitioner’s counsel urges that, from “the plea, it is clear that the petitioner is NOT pleading guilty to Medicaid Fraud, instead, she is pleading guilty under the amended section, 30:4D-17a, NOT 30:4D-17(a) - pay special note to the lack of parentheses around the ‘a’ in the section the defendant has plead to . . . .”  P. Br. at 10 (brackets removed, emphasis in original).

Petitioner observes that N.J.S.A. § 30:4D-17a (without the parenthesis), reads as follows:

Additional action by Attorney General.

In addition to any other action authorized or required by law, the Attorney General shall refer any matter regarding a person who is licensed or otherwise authorized to practice a health care profession in this State pursuant to Title 45 or Title 52 of the Revised Statutes and has been convicted of an offense under the provisions of section 17 of P.L. 1968, c.413 (C. 30:4D-17 ), to the appropriate professional and occupational licensing board within the Division of Consumer Affairs in the Department of Law and Public Safety or the Director of the Division of Consumer Affairs, as applicable, for such action as they determine appropriate regarding that person’s license or other authorization to practice as a health care professional.

*Id*.; *see also*P. Ex. L.

Petitioner’s counsel states that her “plea is NOT to a criminal charge” but rather “is to a ‘definition’ section of the criminal code which permits the Attorney General to contact other agencies and report of the resolution of an underlying case.”  Essentially, Petitioner contends she pled guilty to the statutory requirement that the New Jersey Attorney General refer a matter to a state licensing board.  This argument is spurious and without merit.

To start with, Petitioner points to no mechanism under New Jersey law, or otherwise, by which a defendant can plead guilty to a “definition,” or something else, that is not actually an “offense” under state law.  Nor does Petitioner explain how it would be possible under New Jersey law, or otherwise, for a New Jersey Superior Court to sentence her to probation followed by a 364-day jail term for a “definition,” or something else, that is not an offense.

Page 11

Moreover, Petitioner’s argument is comprehensively contradicted by the record.  Here, the Plea Form signed by Petitioner, her counsel, and the prosecutor, identifies by title “Medicaid Fraud” under the section labeled “Nature of Offense.”  IG. Ex. 5 at 1.  There is no indication of Petitioner instead pleading guilty to a charge of “Additional action by Attorney General.”  *Id*.  Further, the Plea Form specifically asks, under section 2.a., “[d]id you commit the *offense(s)* to which you are pleading guilty?”  *Id*. (emphasis added).  Petitioner checked the box labeled “[y]es.”  *Id*.  As one might assume, Petitioner did not in fact indicate that she was (somehow) pleading guilty to a “definition” or a statutory requirement pertaining to the New Jersey Attorney General.  *See id*.  Moreover, the plea agreement letter attached to the Plea Form specifies that Petitioner agreed to plead guilty to N.J.S.A. section 30:4D-17 *subsection (a)*, not N.J.S.A. section 30:4D-17a.  IG Ex. 6 at 1.

I observe that Petitioner’s counsel’s argument on this point is particularly inapt because the transcript of the hearing during which the plea agreement was accepted makes clear that he, as well as the presiding judge and the prosecuting Deputy Attorney General, specifically discussed, understood, and agreed that Petitioner was pleading guilty to an offense under subsection (a) of N.J.S.A. § 30:4D-17, which is titled “Penalty,” and not N.J.S.A. § 30:4D-17a, which is a separate, standalone section of Title 30 of the N.J.S.A. titled “Additional action by Attorney General,” and is not a subsection of any other section.  *See*IG Ex. 2 at 8-10, 14; *see also*P. Ex. L.  In fact, the presiding judge initially noted during the plea hearing that she was confused as to the difference between the original Count 25 in the indictment and the amended Count 25 that Petitioner was pleading guilty to.  The plea hearing transcript identifies that the presiding judge stated:

I’m a little confused.  So, I looked up - it says Medicaid fraud - this is, of course, on the Plea Form.  And it says, “Amended,” and then it says, “NJSA 30:4D-17(a).”2  So, I printed that out since I really didn’t know what it was and maybe it’s a mistake, but it’s entitled - unless I printed out the wrong statute - “Additional Action by Attorney General.”  And that actually is a notification provision and it basically directs the Attorney General to refer a matter regarding persons - persons’ license in the healthcare profession, uh, to be referred to the appropriate professional board . . . And I did see that the plea was to Count 25, I get that, but then there’s an asterisk and it says, “Amended to that statute.”. . . because that, uh -- I’m just reading from Count 25 by the way . . . it says, “Medicaid fraud, third degree.”  It said, “Knowingly mak- made -” I’m sorry - “false statement in a document,” and it goes on.

Page 12

IG Ex. 2 at 8-9 (crosstalk omitted).

Deputy Attorney General Nadraga explained:

Because it’s another - it’s another subsection of Title 30:4D-17 . . . That’s that section B1.  That language - We’re now s- the defendant is, uh, prepared to plead to Subsection A, um, “Specifically regarding a provider willfully receiving medical assistance payments to which the provider is not entitled in a greater amount than that to which a provider is entitled.”

*Id.*(crosstalk omitted).

Petitioner’s counsel agreed and further explained, “[a]nd we did that because we wanted to avoid the *making false statements* part that would stop her from expungement.”  *Id*. at 9 (emphasis added).  Notably, 30:4D-17(b), the subsection that follows subsection 30:4D-17(a), provides, in relevant part, that “[a]ny provider, or any person, firm, partnership, corporation, or entity, who [k]nowingly and willfully *makes or causes to be made any false statement* or representation of a material fact in any cost study, claim form, or any document necessary to apply for or receive any benefit or payment under P.L.1968, c.413” is guilty of a crime in the third degree.  N.J.S.A. § 30:4D-17(a), (b)(1) (emphasis added).

The presiding judge then asked, “and so it’s -- of course, it’s NJSA 30:4D-17 - and what is the *subsection*?”  IG Ex. 2 at 10 (emphasis added).  Deputy Attorney General Nadraga replied “to what she’s pleading . . . is A, Your Honor.”  *Id.*(crosstalk omitted).  Petitioner’s counsel then confirmed “A, the first part.”  *Id*.  Despite Petitioner’s after-the-fact characterization, the plea hearing transcript shows that both the Deputy Attorney General prosecuting the case and Petitioner’s counsel clarified and agreed that Petitioner was pleading guilty to N.J.S.A. § 30:4D-17 subsection (a).

Moreover, Petitioner described, under examination by her attorney later in the plea hearing, the factual basis for her plea deal, including the following:

Between on or about March 6, 2010, and on or about July 11th, 2013, Petitioner was the sole operator of Home Care Solutions, LLC;
	During that period of time Home Care Solutions was approved to provide healthcare or medical services to Medicaid beneficiaries and submitted claims to Medicaid for reimbursement;Page 13

During that period of time Petitioner, as a result of the company’s Medicaid billing, willfully received medical assistance payments on behalf of the company in an amount greater than that to which the company was entitled, which translated into personal financial benefit to her from the company having received those payments.IG Ex. 2 at 34-35.

Furthermore, the judgment of conviction entered by the state court clearly identifies that, while Count 25 of the indictment originally charged a violation of N.J.S.A. § 30:4D-17 (without denoting a specific subsection), the amended Count 25 Petitioner pled guilty to, and which the state court adjudicated her guilty of and sentenced her for, is a violation of N.J.S.A. § 30:4D-17 subsection (a).  *Compare* IG Ex. 6 at 4 *with*IG Ex. 2 at 1.

As set forth above, the record clearly establishes that Petitioner pled guilty to and was convicted of a criminal offense related to the delivery of a health care item or service under the New Jersey Medicaid program requiring exclusion under 42 U.S.C. § 1320a-7(a)(1).  *See* *Travers v. Shalala*, 20 F.3d 993, 998 (9th Cir. 1994) (affirming conviction for filing fraudulent claims with the Medicaid program is “a program‐related offense” and “such financial misconduct is exactly what Congress sought to discourage” through imposing exclusions).  Therefore, the IG was authorized to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(1).

**C.  Petitioner must be excluded for a minimum of five years.**

Because I have concluded that a basis exists to exclude Petitioner pursuant to 42 U.S.C. § 1320a-7(a)(1), she must be excluded for a minimum of five years.  42 U.S.C. § 1320a-7(c)(3)(B).

**D.  The IG has established only two of the three aggravating factors, but which together justify exclusion beyond the five-year statutory minimum.  Petitioner has not established the existence of a mitigating factor.**

The IG bears the burden of establishing the three aggravating factors the IG relied on to extend Petitioner’s exclusion to eight years, three years beyond the five-year statutory minimum.  42 C.F.R. § 1005.15(c).  Petitioner has the burden of proving mitigating factors.  42 C.F.R. § 1005.15(c).

Page 14

**1.  The IG established financial loss to a government program of $50,000 or more, as required by 42 C.F.R. § 1001.102(b)(1).**

Among other factors enumerated at 42 C.F.R. § 1001.102(b), the IG may extend the length of an exclusion if:

The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more.  (The entire amount of financial loss to such government agencies or programs or to other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made).

42 C.F.R. § 1001.102(b)(1).

Here, Petitioner pled guilty to, and was convicted of, willfully obtaining, through the health care company she operated, benefits under the New Jersey Medicaid program to which she was not entitled or in a greater amount than that to which she was entitled.  IG Ex. 2 at 34-35; IG Ex. 3 at 26; IG Exs. 4-6.  As part of her plea agreement, Petitioner and the New Jersey AG’s office agreed to finalize the terms of a Final Judgment by Consent in a parallel forfeiture case against Petitioner, pursuant to which she would “forfeit $79,000.00 of the seized funds” to “satisfy full restitution to the [New Jersey] Medicaid program.”  IG Ex. 6 at 2.  The judgment of conviction the state court entered against Petitioner included, as part of her sentence, the “previously provided Restitution in the amount of $79,000.”  IG Ex. 4 at 1.

Petitioner, however, contends that the restitution amount does not show a loss of $50,000 or more to a government program.  Notably, Petitioner does not offer a competing estimate (or evidence thereof) of what the loss to the New Jersey Medicaid program her acts resulting in conviction caused.  Instead, Petitioner’s counsel points to a letter he sent to the New Jersey AG’s office as part of the plea agreement negotiations, and emphasizes the following portion:

And the remaining $78,622.17 can be kept by the State to use for “restitution.”  However, I would be interested to even see what you would do with that money in that there is no injured party that you can viably provide restitution to.  But I assume you can take it as a penalty against the defendant for whatever you allege it needs to apply to.  I will leave that up to you.  There is zero dollars due to any victims, and there are no victims.

Page 15

P. Br. at 6 (emphasis removed); P. Ex. H.

Petitioner asserts that her payment of restitution per the plea agreement “was a phantom . . . a construct . . . with no injured party that it was attributable to.  It was simply to ‘buy’ the end of this case.”  P. Br. at 6.  Additionally, Petitioner contends that, because the funds satisfying the restitution amount came from money seized in the parallel civil forfeiture proceeding, there was “NO restitution in [the underlying] criminal matter.”  *Id.*

Regardless of the characterization Petitioner’s counsel advances in this proceeding, Petitioner’s plea agreement (which was also signed by her counsel) specifies that the $79,000 seized in the parallel civil forfeiture case would be used to “satisfy full restitution to the [New Jersey] Medicaid program.”  IG Ex. 6 at 2.

Further, Petitioner’s argument rests on the mistaken belief that, for a restitution amount to qualify as evidence of an aggravating factor under 42 C.F.R. § 1001.102(b)(1), the IG must identify a “patient,” “Medicare Beneficiary,” or other individual who is a “victim” or “aggrieved party.”  *See*P. Br. at 5-8.  That is not the case.  The plain language of regulation describes “a financial *loss to a government agency or program* or to one or more other entities of $50,000 or more.”  42 C.F.R. § 1001.102(b)(1) (emphasis added).  Moreover, the Departmental Appeals Board (Board) has long recognized that restitution is an appropriate measure to demonstrate loss to a government program.  *See* *Summit S. Shah, M.D.*, DAB No. 2836 at 8 (2017) (citations omitted).

As set forth above, the IG has established by a preponderance of the evidence that Petitioner was responsible for more than $50,000 in loss to the New Jersey Medicaid program; thus, the IG has established the existence of the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(1).

**2.  The IG established that Petitioner’s conviction arose from acts that lasted for a period of one year or more, as required by 42 C.F.R. § 1001.102(b)(2).**

Under 42 C.F.R. § 1001.102(b)(2), the IG may extend the length of an exclusion if “the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.”

Petitioner asserts this factor is not present because, Petitioner contends, she:

[O]nly learned of the illegal theft and conduct of her employee(s) in April of 2013, when she reported that conduct to the Banking authority, and then was closed down in July 11, 2013 before she could fully realize the illegal conduct of

Page 16

her employee(s) and correct it fully, thus leaving her holding the bag, for which she admitted she had received and that inadvertently, it caused her financial gain before she could correct it.  So the only time period of this conduct was April 2013 to July 11, 2013 and it was secondary and inadvertent at best.

P. Br. at 21.

Petitioner also asserts that the “real period of time complained of that the Petitioner learned of what was going on was April 2013 to July 2013, only approximately 3.5 months, during which she reported this wrong doing to banking authorities.”  P. Br. at 18 (emphasis removed).

Petitioner’s arguments on this point are not supported by the record.  Count 25 of the indictment specified that the charged conduct occurred “[b]etween March 6, 2010, and on or about July 11, 2013.”  IG Ex. 3 at 25.  Petitioner herself described, under examination by her attorney during the plea hearing, as part of the factual basis for her plea deal, that the conduct to which she was pleading guilty occurred between on or about March 6, 2010, and on or about July 11, 2013.  IG Ex. 2 at 34-35.  The record therefore shows that Petitioner’s conduct resulting in her conviction spanned more than three years.  Furthermore, Petitioner’s contentions that, notwithstanding her plea hearing testimony, the conduct actually occurred over a span of “only approximately 3.5 months” are essentially a collateral attack on her guilty plea and conviction, which is not permitted under 42 C.F.R. § 1001.2007(d).  Accordingly, the IG has established Petitioner’s criminal conduct occurred for over one year; thus, the IG has established the existence of the aggravating factor set forth at 42 C.F.R. § 1001.102(b)(2).

**3.  The IG failed to prove that the sentenced *imposed* on Petitioner included incarceration as required by 42 C.F.R. § 1001.102(b)(5).**

Under 42 C.F.R. § 1001.102(b)(5), the IG may consider the following factor to be aggravating and a basis for lengthening an individual’s period of exclusion:  “if the sentence imposed by the court included incarceration.”  The basis for the IG’s application of this aggravating factor in lengthening Petitioner’s exclusion is a “reverse custodial sentence” for which the state court ultimately vacated the custodial portion with prejudice.

The Plea Form the parties presented to the state court on September 23, 2020, specifies, as part of the sentence the prosecutor agreed to recommend:

Page 17

Probation conditioned upon 364 days in county jail, to be served in reverse.  Length of probation shall be left to the Court’s discretion.  The State will recommend that should the defendant successfully complete 2 years of probation, she [will] not be required to serve any time in county jail.  In addition, should she successfully complete 2 years of probation, the State will not object to a motion for early termination.

IG Ex. 5 at 3.

On October 26, 2020, the state court sentenced Petitioner to this reverse sentence in line with the terms Petitioner and the New Jersey AG’s office had agreed to in the plea deal; two years of probation followed by 364 days in the Union County Jail.  P. Ex. N (sentencing hearing transcript pp. 25-29); IG Ex. 4 at 1; IG Ex. 5 at 3.  The state court memorialized the sentence in a Judgment of Conviction & Order for Commitment entered November 16, 2020, which also provided that Petitioner could file a “[m]otion to reconsider the custodial portion of this sentence” by October 25, 2021.  IG Ex. 4 at 1.

On November 5, 2021, the state court ordered Petitioner’s “Reverse 364 Custodial Term” vacated with prejudice (P. Ex. K) while also denying on the same date Petitioner’s “motion for early discharge from probation.”  IG Ex. 7.  Subsequently, on March 15, 2022, the state court ordered that Petitioner “is hereby discharged from probation with improvement.”  IG Ex. 8.

Petitioner disputes that her sentence included incarceration.  Petitioner states that:

At no time was [Petitioner] EVER to serve a day in jail.  The plea was specifically crafted so that the alleged “jail time” would come at the end of the probation term of two years, with full knowledge by every one that said jail time would never be imposed and was conditional incarceration, in the reverse . . . .  The record now remains that there is never, was never and never will be any incarceration for this defendant.

P. Br. at 8 (emphasis in original).

Further, Petitioner contends that:

In all criminal matters where a defendant receives non custodial probation, which is also known as “no incarceration” which I think we can all agree upon, there is always the presence of the “what happens if” part of that

Page 18

sentence.  For example, “what happens if” the defendant violates probation.  The answer to that question is always the same . . . “if the defendant violates the terms of probation, THEN after a VOP hearing (violation of probation hearing), if they are found to have violated the terms of probation, they MAY be sentenced to a custodial period of time, usually statutory period, but some times arranged by plea.  So it is never uncommon for a sentence to be “three years probation, but if the defendant violates, then he/she serves the “jail period” in jail.

P. Supp. Br. at 3 (emphasis in original).

Petitioner’s counsel asserts Petitioner “has not only not had to serve the full two years probation, and was released early, but we even removed all conditions for violation, such as the conditional ‘send her to jail if she violates probation’ aspect of the plea,” and that:

[T]he plea was to two years probation.  Implicit in that was the normal, standard condition, like in all criminal sentences/pleas where probation is the only punishment, but that if she violated probation, she would have to go to jail (be incarcerated).  Incarceration was NOT imposed by the court or by the plea.  It was a penalty provision IF and ONLY IF she was found by a court, at a hearing, to have violated probation.  Which she did not.  Also expressed in that plea was that after the completion of one year of probation, defendant could not only seek to remove that condition of “if she violated probation she may be incarcerated” but also move for early termination of probation.

P. Supp. Br. at 4-5 (emphasis in original).

For her part, the IG points to the specific language of the state court’s Judgment of Conviction & Order for Commitment, which states, in pertinent part:

Defendant is placed on probation for a period of TWO YEARS with a reverse sentence of 364 DAYS in the Union County Jail following probation.  Defendant shall surrender FRIDAY, OCTOBER 29, 2021.  Motion to reconsider the custodial portion of this sentence must be filed by MONDAY, OCTOBER 25, 2021.

Page 19

IG Supp. Br. at 2, *citing*IG Ex. 4 at 1 (emphasis in original).  Additionally, the Judgment of Conviction & Order for Commitment additionally directed that “the sheriff deliver the defendant to the appropriate correctional authority,” presumably to begin the process of implementing Petitioner’s probationary period, identifies “000 Years 00 Months 364 Days” as the “Total Custodial Term,” and credited Petitioner for two days spent in custody from July 11, 2013 to July 12, 2013, which was prior to the state court adjudication of the matter.  IG Ex. 4 at 1, 3.

The IG asserts that “[o]n its face, the custodial portion of Petitioner’s sentence meets the applicable regulatory definition of incarceration, which includes any type of confinement, with or without supervised release, and without regard for the timing of the custodial term.”  IG Supp. Br. at 2, *citing* 42 C.F.R. § 1001.2.

However, in establishing the aggravating factor under 42 C.F.R. § 1001.102(b)(5), the regulation does not merely require that an individual be sentenced to the possibility of incarceration at some point in time, but that the incarceration actually be “imposed.”  Unsurprisingly, this is not typically an issue requiring consideration, because in the overwhelming majority of cases, the sentencing of incarceration and imposition of incarceration occur essentially simultaneously.  Quite unlike the typical cases involving incarceration, here the court sentenced Petitioner to probation and then a term of incarceration with the recognition at the time of sentencing that the incarceration portion of the term may not ultimately be imposed pending Petitioner’s good behavior during probation.  *See*IG Ex. 2 at 33 (Q [Judge Caulfield]:  Okay.  So, 364 days in the county jail to be served in reverse . . . What does that mean to you? A [Petitioner]: . . . so, if I do my probation for two years correctly with no problems, I do not have to serve the 364 days in county jail; and if I don’t, then I do.  Q [Judge Caulfield]:  Okay . . . .Yes.”)

The state court’s Judgment of Conviction & Order for Commitment includes, as part of Petitioner’s sentence, a custodial term of 364 days to be served in the county jail, which would begin after Petitioner’s two-year probationary period had passed.  IG Ex. 4 at 1, 3.  The sentencing document *also*includes a mechanism for Petitioner to avoid serving any additional jail time; namely, Petitioner could file, by October 25, 2021, a motion for the state court to reconsider the custodial portion of her sentence.  IG Ex. 4 at 1.  And, indeed, Petitioner later utilized that mechanism and, on November 5, 2021, the state court ordered her “Reverse 364 Custodial Term” vacated with prejudice after Petitioner successfully completed a portion of her probation.  P. Ex. K.  In other words, the state court included possible incarceration in Petitioner’s sentence and decided not to impose the incarceration portion of the sentence on Petitioner.

This particular issue appears to be a matter of first impression at the Departmental Appeals Board.  There are a few examples of IG exclusion cases where the state court sentenced a Petitioner to incarceration, suspended the incarceration, and the Petitioner served a term of probation.  *See*, *e.g*., *Melissa Michelle Phalora*, DAB 2772 (2017);

Page 20

*Christina Harris,*DAB CR6012 (2022).  Notably, in these cases, the IG did not extend Petitioner’s length of exclusion even though the sentencing included incarceration.  This comports with the regulatory requirement for application of the incarceration aggravating factor, because while incarceration was included in the sentence in such instances, it was not in fact imposed or executed.
The IG also argues that the state court’s vacating of the incarceration portion of Petitioner’s sentence is akin to the facts in *Funmilola Mary Taiwo*, DAB No. 2995 (2020), where the state court vacated the Petitioner’s misdemeanor after satisfying certain conditions agreed upon in a plea deal.  *See*IG Supp. Br. at 4.  This matter is meaningfully distinguishable from *Taiwo*.  In that case, the IG excluded an individual under section 1128(a)(2) of the Act based on a misdemeanor conviction for Willful Violation of Health Laws (Willful Health Violation) in violation of New York Public Health Law (NYPHL) §§ 12-b(2) and 2803-d(7).  *Taiwo*, DAB No. 2995 at 2.  As part of a plea deal, the petitioner in *Taiwo* agreed to complete a twelve-week elder abuse program and refrain from providing nursing or home health care to any persons aged 60 and above for one full year.  *Id.*  If Petitioner met those conditions, her misdemeanor Willful Heath Violation conviction would be “dismissed” and she would be sentenced to a $250 fine and a conditional discharge under a “Disorderly Conduct” violation, but if she failed to meet those conditions, her misdemeanor conviction would remain and she would be sentenced to a maximum of one year incarceration.  *Id.*

The state trial court in *Taiwo*subsequently determined that the petitioner had satisfied the terms of her plea agreement and “vacated” her misdemeanor Willful Heath Violation conviction and sentenced her to a conditional discharge and $250 fine for a Disorderly Conduct violation.  *Id*at 3.  In her appeal of the IG’s exclusion, the petitioner in *Taiwo*argued that she was not convicted of a crime within the meaning of Act § 1128(a)(2) because her conviction of Willful Health was vacated pursuant to the terms of her plea deal.  *Id*.  However, the Board found that petitioner’s conviction being subsequently vacated in that manner still rendered Petitioner “convicted” under section 1128(i) of the Act, which defines “convicted” for purposes of section 1128(a) of the act.  The Board held that subsections (3) and (4) of section 1128(i) of the Act were met and stated, in pertinent part:

Petitioner entered a guilty plea that was accepted by the state court, satisfying subsection (3).  Petitioner also entered into an “arrangement” in which her judgment of conviction was withheld, meeting the elements of subsection (4).

*Taiwo*, DAB No. 2995 at 5.

Here, unlike in *Taiwo*, the question does not pertain to whether the Petitioner was convicted by the state court, but whether the sentence imposed by the state court included

Page 21

incarceration.  The analysis for whether the IG has a proper basis for an exclusion that requires a Petitioner to have been convicted is fundamentally different from the analysis of whether this aggravating factor is applicable.  The statutory definition of “convicted” specifically provides that a person is convicted “when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court,” or “when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.”  Act § 1128(i)(3)-(4).  This statutory definition thus broadens the commonly understood meaning of conviction.  The regulatory definition of incarceration does not contain a similar broadening element with regard to deferred or suspended incarceration:  “incarceration means imprisonment or any type of confinement with or without supervised release, including, but not limited to, community confinement, house arrest and home detention.”  42 C.F.R. § 1001.2.3  “Imposed” is not defined in the statute nor in the regulations, and therefore retains its commonly understood meaning.  Black’s Law Dictionary (11th ed. 2019) defines “impose” as “to levy or exact (a tax or duty).”  It does not, in turn, define “levy” (which most commonly applies to taxes) or “exact,” but Merriam Webster defines “exact” as “to call for forcibly or urgently *and obtain*.”  (emphasis added).  On the other hand, the IG’s argument would require me to interpret the term “imposed” to be synonymous with the term “included.”

As set forth above, the IG failed to establish that Petitioner’s sentence imposed incarceration as contemplated by 42 C.F.R. § 1001.102(b)(5).

**4.  Petitioner has not established a mitigating factor.**

42 C.F.R. § 1001.102 provides that, if the IG establishes one or more of the aggravating factors set forth in that section, then:

Only the following factors may be considered mitigating -

(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

Page 22

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).

The IG contends that none of the mitigating factors enumerated at 42 C.F.R. § 1001.102(c) pertain to Petitioner’s exclusion.  IG Br.  Petitioner, however, argues that each mitigating factor is present.  P. Br. at 22-23.

With respect to 42 C.F.R. § 1001.102(c)(1), Petitioner contends that the “entire amount found or alleged to be “actual loss” or “intended loss” to Medicare or any other Federal, State or local governmental health care program is ZERO, which is less than $5,000.00.”  *Id*. at 22.  However, as described above, the IG has established by a preponderance of the evidence that Petitioner was responsible for more than $50,000 in loss to the New Jersey Medicaid program.

With respect to 42 C.F.R. § 1001.102(c)(2), Petitioner contends that “Petitioner was duped by her employees, at the hand of her ex-husband” and that she merely “saw a service billed and paid for and knew nothing more.”  Neither these contentions, nor the evidence of record, demonstrate that the state court determined Petitioner had a mental, emotional or physical condition before or during the commission of the offense that reduced her culpability.  Further, Petitioner’s contentions are essentially a collateral

Page 23

attack on her guilty plea and conviction, which is not permitted in this forum.  42 C.F.R. § 1001.2007(d).

Finally, with respect to 42 C.F.R. § 1001.102(c)(3), Petitioner asserts that when she “found out that an employee was double billing and keeping the secondary check for herself and stealing that money,” she “immediately reported it to the Banking authorities as fraud upon her company, months prior to the police closing down her business for the discovery of these illegal acts by employees, which she had begun to cure.”  Petitioner further asserts her “lack of knowledge of this illegal conduct and her compliance and reporting to law enforcement as soon as she became aware of same.”  P. Br. at 23.  Neither these contentions, nor the evidence of record, demonstrate that Petitioner cooperated with Federal or State Officials and the cooperation resulted in others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs; additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses; or the imposition against anyone of a civil money penalty or assessment.  42 C.F.R. § 1001.102(c)(3).

As set forth above, Petitioner has not established the presence of any of the mitigating factors enumerated at 42 C.F.R. § 1001.102(c).

**E.  An eight-year exclusion period is unreasonable; I therefore reduce the exclusion period to seven years.**

I must uphold the IG’s determination as to the length of exclusion if it is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  This means that:

[s]o long as the amount of time chosen by the OIG is within a reasonable range, based on demonstrated criteria, the ALJ has no authority to change it under this rule.  We believe that the deference § 1001.2007(a)(2) grants to the OIG is appropriate, given the OIG’s vast experience in implementing exclusions under these authorities.

57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

In making my determination, the quality of the aggravating (or mitigating) factors is of greater significance than the mere number of factors present in a given case.  As the Secretary of Health and Human Services stated in the preamble to the final rule establishing the exclusion regulations:

We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated

Page 24

based on the circumstances of a particular case.  For example, in one case many aggravating factors may exist, but the subject’s cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating.  Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating.  The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue.

57 Fed. Reg. at 3314-15.  In determining whether the period of exclusion selected by the IG is not unreasonable, I may not substitute my own judgment for that of the IG.  *Richard E. Bohner*, DAB No. 2638 at 2 (2015) (citations omitted), *aff’d*, *Bohner v. Burwell*, No. 15-cv-4088, 2016 WL 8716339 (E.D. Pa. Dec. 2, 2016).  Instead, I look to see “whether the period of exclusion imposed by the I.G. was within a reasonable range, based on demonstrated criteria.”  *Craig Richard Wilder*, DAB No. 2416 at 8 (2011).  In assessing the reasonableness of the exclusion period selected by the IG, I must consider both mitigating and aggravating factors.

Here, the IG has established the presence of two of the three aggravating factors it had applied to justify an exclusion beyond the five-year minimum.  More specifically, the IG established that Petitioner’s acts resulting in her conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more entities of $50,000 or more and that those acts were committed over a period of one year or more.  But the IG did not establish that the sentence imposed by the court included incarceration.  Petitioner has not established the presence of any of the mitigating factors enumerated at 42 C.F.R. § 1001.102(c), which might otherwise have served to reduce the exclusion further below the eight years the IG imposed.

Petitioner admitted to the following conduct at her plea hearing:

Between on or about March 6, 2010, and on or about July 11th, 2013, Petitioner was the sole operator of Home Care Solutions, LLC;
	During that period of time Home Care Solutions was approved to provide healthcare or medical services to Medicaid beneficiaries and submitted claims to Medicaid for reimbursement;
	During that period of time Petitioner, as a result of the company’s Medicaid billing, willfully received medical assistance payments on behalf of the company in an amount greater than that to which thePage 25

company was entitled, which translated into personal financial benefit to her from the company having received those payments.

IG Ex. 2 at 34-35.

As the operator of a business providing healthcare services to Medicaid beneficiaries and receiving Medicaid reimbursement, Petitioner was responsible for ensuring that claims her company submitted to Medicaid were correct; instead, Petitioner admitted that her company overbilled the program for more than three years and that the excess reimbursement inured to her personal financial benefit.  As described above, this conduct “is exactly what Congress sought to discourage” through imposing exclusions from participation in federal health care programs*.  See* *Travers*, 20 F.3d at 998.  Additionally, however, there is also evidence in the record that Petitioner herself was only aware that the company received medical assistance payments greater than the company was entitled for a period of a time much shorter than the three year period of occurrence.  *See*P. Exs. C and F.  Given the specific facts and circumstances of this case, it would not be unreasonable for the IG to extend the period up to one-year for this aggravating factor.

With respect to the financial loss to a government agency or program aggravating factor, Petitioner was ordered to pay $79,000 in restitution to New Jersey Medicaid: “[Y]our client shall forfeit $79,000.00 of the seized funds.  That money shall satisfy full restitution to the N.J. Medicaid program.”  IG Ex. 6 at 2.  As this amount is in excess of the $50,000 threshold but not multiples of the threshold, the IG has the discretion to impose some relatively small, but reasonable extension to account for this fact.  Given the specific facts and circumstances of this case, it would not be unreasonable for the IG to extend the period up to one-year for this aggravating factor.

Finally, I must also consider the fact that the IG has not established one of the three aggravating factors it used to impose an eight year period of exclusion.  A reduction in the exclusion period is appropriate.  *Gary Alan Katz*, DAB No. 1842 at 8 (2002) (“the fact that the I.G. did not establish the aggravating factor at section 1001.102(b)(2) warrants a reduction in the length of the exclusion.”); *Jason Hollady, M.D., a/k/a Jason Lynn Hollady*, DAB No. 1855 at 7 (2002).

I therefore find the IG’s three-year extension of Petitioner’s exclusion, from the five year minimum to eight years unreasonable as the aggravating factor of incarceration was not proven. A seven year period of exclusion is within a reasonable range.

Page 26

VI.   Conclusion

I affirm the IG’s determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs, but reduce the length of exclusion to seven years.

1 Citations are to the 2021 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.

2 The parenthesis around subsection “a” appear in this portion of the transcript of the plea hearing, but do not appear on the first page of the plea form the presiding judge was referring to.  But, as described herein, the record leaves no doubt Petitioner pled guilty to the offense described at subsection “(a).”

3 Compare with the Immigration and Naturalization Act (INA), which provides the following: “Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”  8 U.S.C. § 1101(a)(48)(B).
  
          /s/
        Jacinta L. Alves

                      Administrative Law Judge Back to top
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