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                              2022
                              Roselia Kubeck, DAB CR6139 (2022)
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Roselia Kubeck, DAB CR6139 (2022)








  
  
    

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





Roselia Kubeck
(OI File No. L-16-40029-9),
Petitioner

v.

The Inspector General.
Docket No. C-22-466Decision No. CR6139August 9, 2022

        
              
    

      DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Roselia Kubeck, from participation in Medicare, Medicaid, and all other federal health care programs based on her conviction of a criminal offense related to the delivery of a health care item or service under Medicare or a state health care program.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner because she was convicted of conspiracy to make a false statement or representation of a material fact in an application for any benefit under a federal health care program.  An exclusion for the minimum period of five years is mandatory pursuant to section 1128(c)(3)(B) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(c)(3)(B)).

I.    Background

In a letter dated December 30, 2021, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act (42 U.S.C. § 1320a-7b(f)) for a minimum period of 5 years, effective 20 days from the date of the letter.  IG Ex. 1 at 1.  The IG stated that Petitioner’s exclusion was based on a “conviction (as defined in section 1128(i) of the Act), in the United States

Page 2

District Court, Southern District of California, of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program.”  IG Ex. 1 at 1.  The IG explained that she excluded Petitioner pursuant to section 1128(a)(1) of the Act, which mandates the exclusion of any individual who is convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or any state health care program.  42 U.S.C. § 1320a-7(a)(1).  The IG informed Petitioner that the exclusion was for “the minimum statutory period of 5 years.”  IG Ex. 1 at 1; *see*42 U.S.C. § 1320a‐7(c)(3)(B).

Petitioner, through counsel, filed a request for an administrative law judge (ALJ) hearing that was received by the Civil Remedies Division on April 20, 2022.1  On April 25, 2022, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order).  Following a May 16, 2022 pre-hearing conference, I issued an order memorializing certain matters discussed during the pre-hearing conference.  Pursuant to these orders, the IG filed a brief (IG Br.) and four exhibits (IG Exs. 1-4).  Petitioner filed a brief (P. Br.) and eight exhibits (P. Exs. 1-8).2  The IG filed a reply brief (IG Reply) that included her evidentiary objections.

The IG objects to the admission of P. Exs. 2, 4, 5, and 6 on the basis of relevance.3  Pursuant to 42 C.F.R. § 1005.17(c), an ALJ “must exclude irrelevant or immaterial evidence.”  Because P. Exs. 2, 4, 5, and 6 are irrelevant to the issue before me, I exclude these exhibits.

P. Ex. 2 is a January 1, 2022 sublease agreement between an unspecified individual on behalf of Specialty Health Center and a physician, Dr. Lifschutz, that was executed after the IG issued the instant notice of exclusion on December 30, 2021.  Petitioner has not made any factual connection between this proposed exhibit and the sole issue before me

Page 3

of whether Petitioner has a conviction mandating exclusion.  I therefore exclude P. Ex. 2 from the evidentiary record.

P. Ex. 4 appears to be undated and unsigned notes regarding Petitioner’s plea agreement, and the author of this document is unknown.  These notes lack any evidentiary value, and I exclude P. Ex. 4 from the evidentiary record.

P. Exs. 5 and 6, which are essentially identical, are the written direct testimony of Petitioner and her co-conspirator addressing the terms of the aforementioned sublease agreement.  P. Exs. 5, 6; *see*P. Ex. 2.  Although I offered Petitioner an opportunity to submit written direct testimony, I explained that testimony “should be relevant and material” and “will not be accepted for the purpose of collaterally attacking an underlying conviction.”  Pre-Hearing Order § 14.  The testimony of Petitioner and her co-conspirator is irrelevant to the question of whether Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program, and therefore, I exclude this irrelevant testimony from the evidentiary record.  *See*IG Ex. 1; 42 U.S.C. § 1320a-7(a)(1); 42 C.F.R. § 1005.17.

I sustain the IG’s evidentiary objections.  I admit IG Exs. 1-4 and P. Exs. 1, 3, 7, and 8 into the evidentiary record.

Because neither party has submitted the admissible written testimony of any witnesses, a hearing is unnecessary for the purpose of cross-examination of any witnesses.4  Pre‐Hearing Order §§ 14-16; *see Lena Lasher*,DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, “no purpose would be served by holding an in-person hearing.”),*aff’d, Lasher v. Dep’t of Health & Human Servs.*, 369 F. Supp. 3d 243 (D.D.C. 2019).  I will decide this case on the written submissions and documentary evidence.

II.    Issue

Whether the IG has a basis for exclusion pursuant to 42 U.S.C. § 1320a‐7(a)(1).  If so, a minimum period of exclusion of five years is mandated.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. § 1001.2007(a)(1)-(2).

III.    Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. § 1005.2.

Page 4

IV.    Findings of Fact, Conclusions of Law, and Analysis5

***1. Petitioner was convicted of engaging in a conspiracy, in violation of 18 U.S.C. § 371, to violate 42 U.S.C. § 1320a-7b(a)(1).***

***2. In furtherance of the conspiracy, Petitioner and her co-conspirator obtained laboratory samples from Medicare beneficiaries that would purportedly be used for COVID-19 testing, completed requisition forms that contained inaccurate diagnoses, and transmitted these forms to laboratories, knowing and intending that the laboratories would submit inaccurate and medically unnecessary claims to the Medicare program based on the inaccurate diagnoses that she and her co-conspirator put on the requisition forms.***

***3. Petitioner acknowledged that, as a result of her scheme, the laboratories submitted approximately $73,960 in claims to Medicare that were medically unnecessary, and that Medicare reimbursed approximately $28,279 for these claims.***

***4. The conspiracy for which Petitioner was convicted related to the delivery of an item or service under a federal health care program, specifically, laboratory services under the Medicare program.***

***5. Petitioner was convicted of an offense related to the delivery of a health care item or service under the Medicare program, which is an offense, pursuant to section 1128(a)(1) of the Act, that subjects her to a mandatory exclusion from all federal health care programs for a minimum period of five years.***

Page 5

Section 1128(a)(1) requires a mandatory exclusion from all federal health care programs under certain conditions.6  Section 1128(a)(1) states:

(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.

*See*42 U.S.C. § 1320a-7(a)(1).  Likewise, and pursuant to 42 C.F.R. § 1001.101(a), the IG “will exclude” an individual who “[h]as been convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program.”  The minimum period of exclusion is five years.  42 U.S.C. § 1320a-7(c)(3)(B).

The IG argues that she properly excluded Petitioner from all federal health care programs based on Petitioner’s conviction of an offense that was related to the delivery of a health care item or service under Medicare or a state health care program.  IG Br. at 2-3; *see*IG Exs. 2-4.  Petitioner argues that “[a]lthough [she] entered a plea to the misdemeanor charge only, [she] would indicate that [she] never made false statements or intentionally agreed to commit a crime.”  P. Br.7  The evidence demonstrates that Petitioner was convicted of a criminal offense that mandates exclusion from all federal health care programs.  *See*IG Ex. 3; 42 U.S.C. § 1320a-7(a)(1).

Page 6

On September 7, 2021, the United States filed a one-count information charging that Petitioner “knowingly and intentionally conspired and agreed to commit a misdemeanor offense against the United States, that is, a violation of Title 42, United States Code, Section 1320a-7b(a)(1),8 and one or more persons did any act to effect the object of the conspiracy.”  IG Ex. 4 at 1.  The United States further explained that “[t]o effect the object of the conspiracy, [Petitioner and her co-conspirator] completed requisition forms for Medicare patients that contained inaccurate diagnoses, and transmitted these to laboratories, knowing and intending that the laboratories which performed the tests would submit inaccurate and medically unnecessary claims to Medicare based on the inaccurate diagnoses that [Petitioner and her co-conspirator] put on the requisition forms.”  IG Ex. 4 at 1-2.

In conjunction with the filing of the information on September 7, 2021, Petitioner entered into a plea agreement with the United States.  IG Ex. 2.  Petitioner acknowledged the following factual basis underlying her plea agreement:

In March and April 2020, [Petitioner and her co-conspirator] agreed to approach residents of senior complexes in El Centro and Calexico, who were Medicare beneficiaries, and offer to conduct COVID-19 screening tests for the residents.
	[Petitioner] knew at the time she offered such tests that the tests that would be conducted would not actually test for COVID-19, but would be a general respiratory pathogens panel that tested for the presence of several kinds of respiratory pathogens – but not the novel COVID-19 coronavirus.
	[Petitioner] further knew that no doctor or other medical provider had assessed whether the beneficiaries needed the respiratory pathogens panel test.
	[Petitioner] also took urine samples from the Medicare beneficiaries without explaining that the urine samples were not necessary to conduct a COVID-19 test.
	[Petitioner and her co-conspirator] completed requisition forms for tests on the nasal swabs and urine samples, and inaccurately indicated on the forms that the beneficiaries needed the respiratoryPage 7

tests because they were suffering from acute respiratory infections, and needed urine tests because the beneficiaries were long-term users of opiates or had urinary tract infections.
	As [Petitioner] knew and intended, the laboratories which performed the tests would submit inaccurate and medically unnecessary claims to Medicare based on the inaccurate diagnoses that [Petitioner and her co-conspirator] put on the requisition forms.
	[Petitioner] agrees that the Government could prove that the laboratories submitted approximately $73,960 in claims to Medicare that were medically unnecessary, and that Medicare paid approximately $28,279.IG Ex. 2 at 2-3.  Petitioner entered a guilty plea on September 7, 2021, and a federal magistrate judge imposed a sentence and judgment that same day.  IG Ex. 3.  The sentence included an order that Petitioner pay restitution to the Centers for Medicare & Medicaid Services.  IG Ex. 3 at 1, 3.

Petitioner does not dispute that she was convicted of engaging in a conspiracy to make or cause to be made a false statement or representation of a material fact in an application for a benefit or payment under a federal health care program, namely the Medicare program.  P. Br.; *see*IG Ex. 4.  Rather, Petitioner appears to dispute that she committed the offense conduct underlying her guilty plea and conviction.

The question before me is whether Petitioner has been *convicted* of a criminal offense for which exclusion is mandated.  Therefore, regardless of any apparent effort to re-litigate her conviction, the relevant factual question is whether Petitioner has the type of *conviction* that mandates exclusion under section 1128(a)(1) of the Act.  She does.  While Petitioner now claims she did not make false statements or intentionally agree to commit a crime (P. Br.), she does not dispute that she was *convicted*of a criminal offense “related to an item or service” under the Medicare program.  P. Br. (Petitioner’s acknowledgment that she “entered a plea to the misdemeanor charge”);*see*IG Ex. 3 (judgment of conviction ordering restitution payable to the Centers for Medicare & Medicaid Services).9  Exclusion is therefore mandated.  42 U.S.C. § 1320a-7(a)(1).

In her plea agreement, Petitioner admitted that “[t]here was an agreement between two or more persons to commit a misdemeanor offense against the United States, to wit, making a false statement of a material fact in an application for any benefit under a federal health care program.”  IG Ex. 2 at 2.  Petitioner detailed her participation in the conspiracy, to

Page 8

include outlining the “factual basis” for her guilty plea.  IG Ex. 4 at 2-3.  Petitioner admitted that she falsely offered COVID-19 testing to Medicare beneficiaries, obtained samples for laboratory testing, and submitted these samples to laboratories, where the samples were not tested for COVID-19.  IG Ex. 2 at 3.  Petitioner conceded that she “knew and intended” for the laboratories to “submit inaccurate and medically unnecessary claims to Medicare based on the inaccurate diagnoses [she and her co-conspirator] put on the requisition forms,” resulting in a $28,279 loss to the Medicare program.  IG Ex. 2 at 3.  To the extent Petitioner attempts to disassociate herself from these admitted facts, I note that Petitioner stated the following in her plea agreement:  “**IN ADDITION TO THE FOREGOING PROVISIONS TO WHICH I AGREE, I SWEAR UNDER PENALTY OF PERJURY THAT THE FACTS IN THE ‘FACTUAL BASIS’ SECTION ABOVE ARE TRUE.”**  IG Ex. 2 at 11 (bold and capitalization in original).  I accept, as true, the factual basis Petitioner provided to the federal district court, under the explicit penalty of perjury, that served as the basis for her guilty plea to a federal conspiracy charge.

Petitioner was convicted of a crime that involved the delivery of a health care item or service under the Medicare program, namely laboratory services under the Medicare program.  IG Exs. 2-4.  Petitioner’s misdemeanor conviction for conspiracy to make a false statement of a material fact in an application for any benefit under the Medicare program, in violation of 42 U.S.C. § 1320a-7b(a)(1), therefore subjects her to exclusion.  *Lorna Fay Gardner*, DAB No. 1733 (2000) (“Section 1128(a)(1), which pertains to criminal offenses related to the delivery of an item or service under such programs, does not draw a distinction by degree of offense.”); *see also* *Tamara Brown*, DAB No. 2195 at 7 (2008) (stating, “when an individual is convicted of a ‘program related’ misdemeanor involving the delivery of an item or service under Medicaid or another State health care program, the mandatory exclusion applies . . . .”).

Congress, through enactment of the Act, determined that an individual who has been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program *must* be excluded from federal health care programs for no fewer than five years, and it afforded neither the IG nor an ALJ the discretion to impose an exclusion of a shorter duration.  42 U.S.C. § 1320a-7(c)(3)(B).  Contrary to Petitioner’s arguments (P. Br.; P. Ex. 3), the minimum period of exclusion cannot be reduced by the application of any mitigating factors.  42 U.S.C. § 1320a‐7(c)(3)(B); 42 C.F.R. § 1001.102(a).  I cannot shorten the length of the exclusion to a period of less than five years because I do not have authority to “[f]ind invalid or refuse to follow Federal statutes or regulations.”  42 C.F.R. § 1005.4(c)(1).  Because Petitioner was convicted of a criminal offense related to the delivery of services under the Medicare program, I uphold the IG’s imposition of an exclusion for the mandated minimum period of five years.

Page 9

***6. The effective date of Petitioner’s exclusion is January 19, 2022.***

The effective date of the exclusion, January 19, 2022, is 20 days after the date of the IG’s December 30, 2021 letter and is established by regulation (42 C.F.R. § 1001.2002(b)); I am bound by that regulation.  IG Ex. 1; 42 C.F.R. § 1005.4(c)(1).

V.    Conclusion

I affirm the IG’s determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a five-year minimum period pursuant to 42 U.S.C. § 1320a‐7(a)(1).

Endnotes

1 Petitioner, through counsel, mailed the request for hearing via “FedEx First Overnight” on March 3, 2022.  Inexplicably, the filing was not delivered to the Civil Remedies Division for more than six weeks.

2 The United States filed a single-count information charging both Petitioner and her co-conspirator, Rosario Gonzalez, and the IG issued notices of exclusion to both Petitioner and Ms. Gonzalez.  Through the same counsel, Petitioner and Ms. Gonzalez requested a hearing, and their cases were separately docketed.  Counsel filed identical pre-hearing exchanges for both Petitioner and Ms. Gonzalez.  I have issued a separate decision for each petitioner.  *See Rosario Gonzalez*, DAB CR6140 (2022).

3 The IG erroneously referenced P. Ex. 2 (sublease agreement) as P. Ex. 1.  IG Reply at 4.

4 The IG did not request an opportunity to cross-examine the witnesses for whom Petitioner submitted written direct testimony.  IG Reply; *see*P. Exs. 5-6.

5 My findings of fact and conclusions of law are set forth in italics and bold font.

6 While there are slight differences in the wording of Section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical and I refer to them interchangeably.  I further note that the Secretary of the Department of Health and Human Services has delegated to the IG the authority “to suspend or exclude certain health care practitioners and providers of health care services from participation in these programs.”  48 Fed. Reg. 21,662 (May 13, 1983); *see also*42 C.F.R. § 1005.1.

7 Because Petitioner did not paginate her two-page brief, I do not provide pinpoint citations.

8 Pursuant to 42 U.S.C. § 1320a-7b(a)(1), it is a criminal offense when an individual “knowingly and willfully makes or causes to be made any false statement or representation of a material fact in any application for any benefit or payment under a Federal health care program.”

9 Pursuant to 18 U.S.C. § 3663, a federal court is authorized to order the payment of restitution to the victim of a crime.
  
          /s/
        Leslie C. Rogall

                      Administrative Law Judge Back to top
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