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                              Nelsa Odina Rodriguez-Cespedes, M.D., DAB CR6226 (2023)
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Nelsa Odina Rodriguez-Cespedes, M.D., DAB CR6226 (2023)








  
  
    

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





Nelsa Odina Rodriguez-Cespedes, M.D.
(OIG File No. 2-18-40013-9),
Petitioner,

v.

The Inspector General,
U.S. Department of Health and Human Services,
Respondent.
Docket No. C-22-710Decision No. CR6226January 31, 2023

        
              
    

      DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Petitioner, Nelsa Odina Rodriguez-Cespedes, M.D., from participation in Medicare, Medicaid, and all other federal health care programs for five years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  Petitioner challenges the length of the exclusion.  For the reasons stated below, I conclude that the five-year exclusion period is required by law.  I affirm the IG’s exclusion determination.

I.     Procedural History

The IG issued a notice to Petitioner on June 30, 2022 that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for five 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.  *Id*.  Petitioner timely requested a hearing, and I was designated to hear and decide this case.

**Page 2**

I conducted a pre-hearing telephone conference on September 30, 2022, the substance of which I memorialized in my October 3, 2022 Order (Summary Order), including a schedule for submission of arguments and evidence by the parties.  The IG submitted a brief (IG Br.), and a reply brief (IG Reply), and four exhibits (IG Exs. 1-4).  Petitioner submitted a brief (P. Br.) and did not submit any exhibits.

II.    Exhibits and Decision on the Record

Petitioner did not object to the IG’s proposed exhibits.  Therefore, I admit IG Exs. 1-4 into evidence.

Petitioner stated in her brief that an in-person hearing is necessary to decide this case.  P. Br. at 2.  Petitioner seeks to testify as the sole witness on how the five-year exclusion has affected her professional practice and constitutes a forced retirement.  *Id*.  The IG opposed a hearing for Petitioner’s testimony in her reply, contending that the information that Petitioner is offering is irrelevant to the case.  IG Reply at 2; *see also*IG Br. at 3.  Petitioner did not file a surreply or request leave to do so, and has not otherwise indicated whether, after receipt of the IG’s reply, she contends witness testimony at an in-person hearing is necessary.

Petitioner has not shown why her testimony would be relevant or within the scope of the issues that I have the discretion to decide in this case.  While it is very likely true that the five-year exclusion has significantly impacted - if not completely upended - Petitioner’s practice, and the duration of the exclusion may ultimately force Petitioner’s retirement, I do not have the authority to reduce the statutory mandatory minimum period of exclusion of five years in this case.  As such Petitioner’s proposed testimony would not be relevant, and an oral hearing is therefore unnecessary.

Moreover, Petitioner did not submit exhibits of her own, did not object to the IG’s proposed 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 for which witness testimony would be relevant to the resolution of the issues in this case.

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 length of the exclusion imposed by the IG is unreasonable.  *See*42 C.F.R. § 1001.2007(a)(1).  Petitioner does not dispute that the IG has a basis to exclude her from participating in Medicare, Medicaid, and all other federal health care programs.  P. Br. at 1.  Thus, the only issue is whether the length of the exclusion is unreasonable.

**Page 3**

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 at 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the right of both the sanctioned party and the IG to participate in a hearing are specified at 42 C.F.R. § 1005.3.

Pursuant to section 1128(a)(1) 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).  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)).

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.

****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).

****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)****.****Petitioner does not dispute the basis of the exclusion.  P. Br. at 1.  For clarity, I briefly summarize the facts of Petitioner’s exclusion.

**Page 4**

On September 2, 2021, the United States District Court, District of Puerto Rico, entered judgment against Petitioner as to one count of health care fraud in violation of 18 U.S.C. § 1347.  IG Ex. 4 at 1.  On October 22, 2020, Petitioner pleaded guilty to that charge following her indictment on October 22, 2020.  IG Exs. 2-3.  Count One of the charges alleges that:

In or about and between November 1, 2014 and December 1, 2018, in the District of Puerto Rico and within the jurisdiction of this Court, [Petitioner], the defendant herein, in connection with the delivery of and payment for health care benefits, items, and services, did knowingly and willfully execute a scheme or artifice to defraud a health care benefit program, as defined in Title 18, United States Code, Section 24(b), specifically, Medicare; and to obtain, by means of materially false and fraudulent pretenses, representations, and promises, money and property owned by, and under the custody and control of, said health care benefit programs by knowingly submitting, and causing to be submitted, false and fraudulent claims related to the delivery of health care services, all in violation of Title 18, United States Code, Section 1347.

IG Ex. 3 at 1.

The facts pertaining to Petitioner’s conviction clearly establish that Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under the Medicare 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).  Thus, the IG has a basis to exclude Petitioner.

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

Petitioner argues in her brief that the period of exclusion is unreasonable, because her guilty plea was not based on an admission of crime committed, but on having reached an agreement with the federal prosecutor in order to end the inconvenience of a judicial process.  P. Br. at 1.  However, this contention – which very well may be true – is considered a collateral attack on the underlying conviction and is impermissible under 42 C.F.R. § 1001.2007(d).

**Page 5**

Petitioner also argues that her plea of guilt is not related to the harm, abuse, or neglect against a patient or program beneficiary.  P. Br. at 2.  However, harm, abuse, or neglect against a patient are not required elements for an exclusion under 42 U.S.C. § 1320a-7(a)(1) and have no bearing on reducing the statutory mandatory minimum length of an exclusion thereunder.  This argument is therefore misplaced.

Lastly, Petitioner contends that the five-year exclusion is unreasonable because an exclusion of five years will render her career terminated.  P. Br. at 1.  Additionally, Petitioner provides services to highly vulnerable and marginalized populations who have not had much notice for transition because of the exclusion.  P. Br. at 2.  Even so, the law requires that when the IG has a basis for the exclusion under section 1128(a)(1) of the Act, I must uphold Petitioner’s length of exclusion for a period of not less than five years even if the exclusion imposes a hardship on beneficiaries.  42 U.S.C. § 1320a-7(c)(3)(B).****An ALJ is only able to consider mitigating factors as a basis for reducing the period of exclusion when aggravating factors justify an exclusion of longer than five years, and even then, an ALJ cannot reduce the period of exclusion to less than five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. § 1001.102(a), (c).  Notably, however, “upon the request of the administrator of a Federal health care program . . . who determines that the exclusion would impose a hardship on beneficiaries . . .  of that program, the Secretary may, after consulting with the [IG], waive the exclusion under subsection (a)(1), (a)(3), or (a)(4) with respect to that program in the case of an individual or entity that is the sole community physician or sole source of essential specialized services in a community.”  42 U.S.C. § 1320a-7(c)(3)(B).

VI.    Conclusion

I affirm the IG’s determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a minimum of five years.
  
          /s/
        Jacinta L. Alves

                      Administrative Law Judge Back to top
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