Kristin Dawn Mayle, DAB CR6021 (2022)

DECISION

Petitioner, Kristin Dawn Mayle, is a licensed practical nurse (LPN) who worked for a home health agency in the State of Ohio.  She was criminally charged with Medicaid fraud and forgery, both felonies.  She ultimately pleaded guilty to one misdemeanor count of obstructing justice.  Based on this conviction, the Inspector General (IG) has excluded her, for a minimum of five years, from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(1) of the Social Security Act (Act).  Petitioner appeals the exclusion.  For the reasons discussed below, I find that the IG properly excluded Petitioner Mayle and that the statute mandates a minimum five-year exclusion. 

Background

In a letter dated August 31, 2021, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five years because she had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The letter explained that section 1128(a)(1) of the Act authorizes the exclusion.  IG Ex. 1.

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Petitioner timely requested review.

Petitioner submitted a motion for summary judgment and brief (P. Br.).  The IG submitted a cross-motion for summary judgment and brief (IG Br.) with five exhibits (IG Exs. 1-5).  Petitioner filed a reply to the IG’s brief (P. Reply), and the IG submitted a sur‑reply (IG Reply).  In the absence of any objections, I admit into evidence IG Exs. 1-5.1

Although each party asks for summary judgment, neither presents any witnesses.  In an order dated November 10, 2021, I advised the parties of their right to request a video hearing.  I directed any party requesting a video hearing to explain why it is necessary, to list proposed witnesses, and to provide their testimony, in the form of affidavits or written sworn declarations.  Order and Schedule at 3-4 (¶ 7) (DAB E-file Docket #5).  Because there are no witnesses to be examined or cross-examined, a video hearing would serve no purpose.  I therefore decide the case based on the written record, without considering whether the criteria for summary judgment are satisfied.

Discussion

1.  Petitioner must be excluded from program participation for a minimum of five years because she was convicted of a criminal offense related to the delivery of an item or service under Medicaid, a state healthcare program.  Act § 1128(a)(1).2

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state healthcare program.  42 C.F.R. § 1001.101(a). 

Petitioner, Kristin Dawn Mayle, nee Simpson, was an LPN working for a home health agency.  Her job required her to care for a child with significant health issues, involving a feeding tube and catheter.  Petitioner was scheduled to work from 7:00 a.m. to 3:00 p.m. daily.  The child’s mother reported that Petitioner was often late and left early.  On a couple of occasions, she did not come to work at all.  IG Ex. 5 at 1.  Other witnesses confirmed that Petitioner was not always working when she claimed to be.  Id. at 1-2.  Investigators from the Medicaid Fraud Control Unit cited multiple instances in which

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Petitioner’s nursing notes indicated that she had provided services (tube feeding, flushing the patient’s feeding tube, administering medications, measuring urine) which she could not have provided because she was not there.  Id. at 2. 

Petitioner told investigators that she had lost her nursing notes and that her copies of those notes were destroyed.  Following her employer’s instructions, she created new notes and filled them out to the best of her knowledge.  The investigators noted that these newly-created notes were extremely detailed, containing the patient’s vital signs (temperature, pulse, respiration, oxygen saturation levels, pain intensity); they included specifics of feeding tube flushes (number of milliliters used for each flush, skin temperature, neurological information, respiratory observations, catheter output).  Petitioner did not explain how she recreated from memory such detailed information.  Id. at 2-3. 

Based on her “reconstructed” statements, the Medicaid program paid for services that Petitioner had not provided.  IG Ex. 2.

On August 20, 2019, an Ohio grand jury issued an indictment, charging Petitioner with one felony count of Medicaid fraud (count one) and one felony count of forgery (count two).  IG Ex. 2. 

On July 28, 2020, Petitioner pleaded guilty to “a stipulated lesser included offense to count one”:  obstructing justice, in violation of Ohio Revised Code § 2921.32(A), which is a misdemeanor.  IG Ex. 3.  The state court accepted her plea and effectively dismissed count two of the indictment (noting that the state declined to prosecute).  The court waived fines, based on Petitioner’s financial condition, but ordered her to pay court costs and $2,104.30 in restitution to the Ohio Department of Medicaid.  IG Ex. 4 at 1. 

Petitioner argues that, because she was ultimately convicted of obstruction of justice, she is subject to a permissive exclusion under section 1128(b)(1) rather than a mandatory exclusion under section 1128(a)(1).  P. Br. at 3-4.  The Departmental Appeals Board has repeatedly rejected this argument, finding it incompatible with the plain language of the statute.  Section 1128(a)(1) mandates that whenever a conviction is within its scope, the IG must impose an exclusion, whether or not the conviction otherwise fits within the permissive exclusion provisions.  Lorna Fay Gardner, DAB No. 1733 at 5 (2000); see Gregory J. Salko, M.D., DAB No. 2437 at 3 (2012) and cases cited therein; Tamara Brown, DAB No. 2195 at 7 (2008). 

Moreover, because Petitioner is subject to a mandatory exclusion, she is not subject to a permissive exclusion.  Section 1128(b)(1) applies only to crimes that are not related to federal or state healthcare programs or to crimes “other than those specifically described in [subsection 1128(a)].”  Act § 1128(b)(1); Craig Richard Wilder, DAB No. 2416 at 7 (2011).

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Petitioner, however, argues that she is not subject to exclusion under section 1128(a)(1) because she pleaded guilty to obstruction of justice, not healthcare fraud.  P. Br. at 3-4.  In determining whether a conviction is program-related within the meaning of section 1128(a)(1), I may look beyond the language of the statute under which Petitioner was convicted.  It is well-settled that the IG may rely on extrinsic evidence to explain the circumstances underlying a conviction.  The regulations specifically provide that evidence of “crimes, wrongs, or acts other than those at issue in the instant case is admissible to show motive, opportunity, intent, knowledge, preparation, identity, lack of mistake, or existence of a scheme.”  42 C.F.R. § 1005.17(g); see Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003) (“We thus see nothing in section 1128(a)(2) that requires that the necessary elements of the criminal offense must mirror the elements of the exclusion authority, nor that all statutory elements required for an exclusion must be contained in the findings or record of the state criminal court.”); Timothy Wayne Hensley, DAB No. 2044 (2006); Scott D. Augustine, DAB No. 2043 (2006); Lyle Kai, R.Ph., DAB No. 1979 at 5 (2005), aff’d, Kai v. Leavitt, No. 05-00514 BMK (D. Haw. July 17, 2006); Berton Siegel, D.O., DAB No. 1467 at 5 (1994); Carolyn Westin, DAB No. 1381 (1993), aff’d sub nom. Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994); Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Bruce Lindberg, D.C., DAB No. 1280 (1991).

Petitioner also suggests that her crime was not program-related (and, indeed, was hardly even a crime) because she did not intend to defraud the Medicaid program.  Alluding to her statements to the investigators, she claims that her timekeeping forms “had been misplaced,” and, although she had created carbon copies, those were “destroyed by a child in her client’s home.” 3  She emphasizes that, in requesting the indictment, the Attorney General authorized a first-degree misdemeanor plea.  P. Reply at 2.  She concedes that she paid restitution, but suggests that she did so, not because she had defrauded the Medicaid program, but “because it was the honest thing to do.”  Id.  

Petitioner may not now claim that her criminal actions were nothing more than innocent mistakes.  When she pleaded guilty to obstruction of justice, she conceded that her actions were purposeful.  See Ohio Rev. Code § 2921.32(A) (“No person, with purpose to hinder the discovery, apprehension, prosecution, conviction, or punishment . . . .”).  Further, the regulations preclude a collateral attack on an underlying conviction: 

When the exclusion is based on the existence of a criminal conviction . . . or any other prior determination where the

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facts were adjudicated and a final decision was made, the basis for the underlying conviction . . . is not reviewable and the individual . . . may not collaterally attack it, either on substantive or procedural grounds, in this appeal. 

42 C.F.R. § 1001.2007(d); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).  

Moreover, Petitioner omits the investigators’ conclusions and recommendations:

In total, between 9/1/2015 and 1/31/2016, [Petitioner] stole $2,104.30 from the Medicaid program.  We request authority to seek an indictment . . . for one count of Medicaid Fraud . . . and one count of Forgery.  We request authority to accept a plea to one first degree misdemeanor with restitution.

IG Ex. 5 at 3 (emphasis added).  Thus, although prosecutors were willing to accept a misdemeanor plea, their recommendation leaves no doubt that the charges against Petitioner stemmed from Medicaid fraud, and they explicitly sought restitution.

Petitioner falsified treatment records, which were submitted to Medicaid.  For this she was charged with Medicaid fraud and forgery.  The sentencing court ordered her to pay restitution to the Medicaid program.  These facts create a direct connection between her crime and a state healthcare program.  Thus, Petitioner Mayle was “convicted” within the meaning of section 1128(a)(1) and she is subject to exclusion. 

An exclusion brought under section 1128(a)(1) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid and all federal health care programs, and I sustain the five-year exclusion.