Jewel N. Coleman, DAB CR6238 (2023)

DECISION

Petitioner, Jewel N. Coleman, worked for a South Carolina company that provided behavioral health services.  Her work was primarily clerical, and she never saw clients.  Nevertheless, she wrote service notes that were submitted to the State Medicaid Agency to justify claims that her employer had fraudulently submitted.  She was indicted on one misdemeanor count of Medical Assistance Provider Fraud, to which she pleaded guilty.  Based on this conviction, the Inspector General (IG) has excluded Petitioner for 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 her.  Because the statute mandates a minimum five-year exclusion, the length of her exclusion is, by law, reasonable. 

Background

In a letter dated October 31, 2022, 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

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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. 

Petitioner timely requested review. 

The IG submitted a written argument (IG Br.) and seven exhibits (IG Exs. 1-7).  In addition to her hearing request, Petitioner submitted her own brief (P. Br.).  In the absence of any objections, I admit into evidence IG Exs. 1-7. 

The parties agree that an in-person hearing is not necessary.  IG Br. at 5-6; P. Br. at 2. 

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 a state health care program.  Act § 1128(a)(1).1 

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 health care program.  42 C.F.R. § 1001.101(a). 

The conviction.  In an indictment issued on November 5, 2019, Petitioner was charged with one misdemeanor count of Medical Assistance Provider Fraud, in violation of S.C. Code of Laws § 43-07-60.  The indictment charged that, on or between October 3, 2014, and December 1, 2015, Petitioner “knowingly and willfully made or cause[d] to be made a false claim, statement, or representation of a material fact in an application or request for a benefit, payment, or reimbursement from a state or federal agency [that] administers the State’s Medicaid program.”  Petitioner had signed and submitted service notes for services that she did not perform “in order [to] justify previous claims” submitted to the Medicaid Agency.  IG Ex. 4. 

On October 25, 2021, Petitioner agreed to plead guilty to the charge and signed a plea agreement.  IG Ex. 3.  On November 16, 2021, the court accepted her plea and sentenced her to one year in jail, which it suspended, based on her time served.  She was ordered to pay $128.75 in fines and $2,102.80 in restitution to the South Carolina Department of

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Health and Human Services, which administers the state’s Medicaid program.  IG Exs. 2, 7. 

Petitioner’s crime was thus unquestionably related to the delivery of an item or service under a state health care program.  She falsified records to support the fraudulent claims that her employer had submitted to the state Medicaid program. 

Petitioner’s defenses.  Petitioner does not dispute that she was convicted nor even that her conviction was related to the delivery of an item or service under a state health care program.  P. Br. at 1, 2.  Nevertheless, in her hearing request, she suggests that she “never knowingly provided any documentation for the agency with a willing mind that the information was being billed fraudulently.”  She thus suggests that she was not really guilty of a crime. 

Having pleaded guilty, Petitioner may not use this forum to argue that she did not, in fact, commit the crime.  The regulations preclude such 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 facts were adjudicated and a final decision was made, the basis for the underlying conviction . . . is not reviewable, and the individual or entity may not collaterally attack it, either on substantive or procedural grounds, in this appeal.

42 C.F.R. § 1001.2007(d); Delores L. Knight, DAB No. 2945 at 9 (2019); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).

An exclusion brought under section 1128(a)(1) must be for a minimum period of five years.  Act § 1129(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.