Melanie Joyce Walker, DAB CR5784 (2020)

DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, Melanie Joyce Walker, from participating in Medicare, state Medicaid programs, and other federally funded health care programs, for a minimum of five years.  Exclusion is required by section 1128(a)(1) of the Social Security Act (Act). 

I.  Background

The IG filed a brief in support of the exclusion determination along with three exhibits that are identified as IG Ex. 1-IG Ex. 3.  Petitioner filed statements as part of her hearing request and also in response to the IG’s exchange.  I receive IG Ex. 1-IG Ex. 3 into the record.  I also receive Petitioner’s statements inasmuch as they contain her testimony.

II.  Issues, Findings of Fact, and Conclusions of Law

A.  Issue

The issue is whether section 1128(a)(1) of the Act requires the IG to exclude Petitioner for a minimum period of five years.

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B.  Findings of Fact and Conclusions of Law

Section 1128(a)(1) requires that anyone who is convicted of a criminal offense related to the delivery of an item or service under Medicare or a state Medicaid program be excluded from participating in these programs and other federally funded health care programs.  Five years is the minimum period of exclusion for anyone who is convicted of a section 1128(a)(1) crime.  Act, § 1128(c)(3)(B).

The facts unequivocally establish that Petitioner was convicted of a crime as is defined by section 1128(a)(1).  I have no choice but to sustain her exclusion for the minimum period of five years.

Petitioner was charged under Arkansas law with a single count of Medicaid fraud.  IG Ex. 2.  Specifically, she was accused of filing a false statement or representation of material fact in connection with an application for a health benefit or payment under the Arkansas Medicaid program.  Id.  Petitioner subsequently pled guilty to the lesser offense of Theft by Receiving, a misdemeanor.  IG Ex. 3.  She was sentenced to 12 months of probation and ordered to pay restitution.  Id. at 2-3.

These facts establish that Petitioner was convicted of a criminal offense and that her conviction related to the delivery of an item or service provided by the Arkansas Medicaid program.  Theft of program funds by filing a false claim for a benefit or payment by that program falls squarely within the definition of a program-related crime as stated in section 1128(a)(1) of the Act.

Petitioner does not deny her conviction, nor does she deny that it was for a crime that falls within the reach of section 1128(a)(1).  However, in her statements, Petitioner explains that she only sought reimbursement for services that she provided to her ailing mother.  She expresses remorse for her actions and pleads, eloquently, to be allowed to work in the health care field.

I am without authority to provide Petitioner with the relief that she seeks.  See 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (an ALJ is required to follow the Act and regulations and has no authority to declare statutes or regulations invalid).  That said, there is a provision under applicable regulations allowing for programs from which individuals are excluded to apply to the IG for a waiver from the exclusion requirements in individual cases.  42 C.F.R. § 1001.1801.  The waiver request comes not from the excluded individual but from the program from which that individual is excluded.  I have no authority to grant a waiver nor may I opine as to whether a waiver would be appropriate.  Petitioner might consider directing her request to the Arkansas Medicaid program, which would then have discretionary authority to consider her request.  Finally, I note that the IG’s authority to act on any request that the Arkansas

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Medicaid program might make on Petitioner’s behalf is also discretionary and I have no authority to intervene in that decision-making process.