Marilou Maya Zananski, DAB CR5899 (2021)

DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, Marilou Maya Zananski, from participating in Medicare, State Medicaid, and other federally-funded health care programs for a period of five years. Section 1128(a)(1) of the Social Security Act (Act) mandates Petitioner’s exclusion. The section requires the IG to exclude any individual who is convicted of a criminal offense related to the delivery of an item or service under Medicare or a State Medicaid program. Section 1128(c)(3)(B) of the Act imposes a minimum exclusion period of five years on any individual convicted of an offense as is defined in section 1128(a)(1). That is what the IG determined to impose in this case.

I. Background

The IG filed a brief, a reply brief, and five supporting exhibits, identified as IG Ex. 1-IG Ex. 5. Petitioner filed a brief and a supporting exhibit, identified as P. Ex. 1. Neither the IG nor Petitioner filed written witness testimony, and neither party requested that I convene an in-person hearing. I receive the parties’ exhibits into evidence and decide this case based on the parties’ filings.

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A. Issue

The issue is whether Petitioner was convicted of a criminal offense as is defined at section 1128(a)(1) of the Act. There is no issue as to whether the length of exclusion is reasonable – if the IG is required to exclude – inasmuch as the IG excluded Petitioner for the minimum mandatory period.

B. Findings of Fact and Conclusions of Law

The evidence proves that Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(1) of the Act.  Consequently, the IG had no choice other than to exclude her (for the minimum period in this case), and I must sustain the IG’s determination.

A criminal information filed against Petitioner on November 4, 2019, charged her with a single count of Medicaid fraud, a crime pursuant to Florida law.  IG Ex. 2.  Subsequently, an amended criminal information, filed on March 16, 2020, added a separate charge of unauthorized access of a computer system, also a crime under Florida law.  IG Ex. 3.  More specifically, the amended information alleged that Petitioner accessed or caused to be accessed a computer, computer system, computer network, or electronic device with knowledge that such access was unauthorized or that the manner of use exceeded authorization.  Id.

Petitioner entered into a plea agreement.  She pled nolo contendere to the charge of unauthorized access of a computer system.  As part of the plea bargain, the prosecutor dismissed the charge of Medicaid fraud.  IG Ex. 4 at 1.  The Florida court receiving the plea sentenced Petitioner to five years of probation and to pay restitution.

Neither the criminal information nor the amended information spell out the specifics of the crimes of which Petitioner was charged, including the crime to which Petitioner entered her nolo contendere plea.  Clearly, however, the charges filed against Petitioner, including the amended information, were premised on fraudulent billing for Medicaid reimbursement.  Petitioner has offered an explanation of what happened, and I accept that explanation in the absence of any other elucidating facts.  As Petitioner explains, she was the owner of a facility that participates in Florida’s Medicaid program.  Informal Brief of Petitioner at 2.  She sold the facility to another entity.  There was a period of time after the sale was completed during which the facility’s new owner was not an authorized Medicaid participant.  Petitioner continued to claim reimbursement from Medicaid for the services that the facility provided during this period, as if she were authorized to file claims for the services, so that the services could be reimbursed, and so that the new owner could obtain the benefit of that reimbursement.

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As Petitioner describes it, the crime to which she pled nolo contendere plainly relates to the delivery of items or services under Florida’s Medicaid program, thus falling within the ambit of section 1128(a)(1). She filed claims for Medicaid items or services under false pretenses – claiming reimbursement as if she provided the items or services at issue, when in fact those items or services were being provided by an entity which she no longer owned. Petitioner would not have been charged with a crime but for her claiming reimbursement for Medicaid items or services that she did not provide. The essence of Petitioner’s crime thus was unauthorized claims for Medicaid items or services.

Petitioner argues that her conduct – as she explains it – isn’t criminal.  She characterizes her acts as efforts to help out the purchaser of her facility, who was providing legitimate items or services, but who could not be reimbursed for them but for Petitioner’s continuing to file claims as if she continued to own the facility and continued to provide the items or services.  Therefore, she contends that exclusion is inappropriate.  I find this argument to be unpersuasive, for two reasons.

First, it is an attempt by Petitioner to assert that she is not really guilty of a crime for which she entered a plea.  That is a collateral attack by Petitioner on her conviction, an assertion that is not permitted in challenges to IG-imposed exclusions.  42 C.F.R. § 1001.2007(d).

Second, Petitioner’s conduct – as she describes it – forms the basis for the information and the amended information filed against her and her nolo contendere plea.  As Petitioner admits, the claims that she filed for Medicaid items or services are an element of the charge to which she entered her plea.  Her filing of those claims was determined to be criminal by a Florida prosecutor.  Whether Petitioner now disagrees with that determination is irrelevant in light of her plea.