Dawn Whitten, CR6298 (2023)

DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, Dawn Whitten, from participating in Medicare, Medicaid, and other federally funded health care programs for a minimum period of five years.  Petitioner was convicted of crimes that mandate her exclusion pursuant to sections 1128(a)(1) and (a)(3) of the Social Security Act (Act). 

I.    Background

The IG filed a brief and seven proposed exhibits that are identified as IG Ex. 1 - IG Ex. 7. Petitioner filed a brief and no exhibits.  I receive the IG’s exhibits into evidence. 

Neither side offered the testimony of a witness. Consequently, I decide this case based on the parties’ written submissions. 

II.    Issues, Findings of Fact and Conclusions of Law

A.  Issues

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The issue is whether Petitioner was convicted of crimes that mandate her exclusion. 

B.  Findings of Fact and Conclusions of Law

Section 1128(a)(1) of the Act mandates exclusion of any individual who is convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program (Medicaid).  Section 1128(a)(3) mandates exclusion of any individual convicted of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service, or with respect to any act or omission in a health care program other than Medicare or Medicaid, operated by, or financed in whole or in part by any federal, state, or local agency. 

The two statutory sections are independent.  It is not necessary to prove that an individual has been convicted of a crime that meets the requirements of both sections to establish a basis for exclusion.  A crime that meets the requirements of either section will suffice. 

Here, however, the evidence proves that Petitioner was convicted of crimes that fall within the reach of both sections 1128(a)(1) and (a)(3). 

On August 9, 2018, Petitioner pled guilty in federal court to crimes consisting of: conspiracy to commit health care fraud, wire fraud and mail fraud; health care fraud; and aggravated identify theft.  IG Ex. 2; IG Ex. 3.  The court entered a judgment of conviction against Petitioner on that date. 

Petitioner was specifically charged with, and pled guilty to, participating in a conspiracy to defraud health care benefits programs, including Medicare and non-federal health insurers.  IG Ex. 2 at 1; IG Ex. 4 at 9.  She participated in the conspiracy in her job as an outside sales representative for a pharmacy that filed fraudulent reimbursement claims with health insurers.  Petitioner’s role in the conspiracy was to generate false prescriptions for medications, on which she forged physicians’ signatures.  IG Ex. 2 at 13, 14, 16. 

Petitioner’s sentence for her crimes included a court order that she pay restitution.  IG Ex. 6 at 2.  In an amended restitution order, the court specifically held that a component of the restitution included money owed by Petitioner and a co-conspirator to the Medicare program.  IG Ex. 7 at 2. 

Petitioner’s convictions are for crimes that meet the requirement of section 1128(a)(1) that they be “related to” the delivery of an item or service under Medicare.  In this case one need not strain to find a nexus between Petitioner’s crimes and Medicare items or services.  The relationship is palpable.  Medicare was one of the targets of the conspiracy

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in which Petitioner was a participant.  An object of that conspiracy was to generate false claims for Medicare items or services.  Petitioner’s crimes had a direct and measurable effect on Medicare, as is evidenced by the court’s order that she pay restitution to the program. 

Petitioner argues that she was not convicted of a Medicare-related crime because counts of the criminal information involving specific prescriptions to which she entered her guilty plea do not involve prescriptions for Medicare items or services. P. Br. at 3-5.  Rather, according to Petitioner, those prescriptions were for drugs covered by insurers other than Medicare.  Id.  That may be true, but it serves as no defense for Petitioner.  She pled guilty to a conspiracy that made Medicare a victim.  She was an active participant in that scheme even if she was not convicted of generating specific false claims for Medicare items or services.  Furthermore, her participation in the conspiracy had an impact on Medicare as is established by the court’s order that she pay restitution to that program; restitution that clearly was intended to make Medicare whole for fraudulent reimbursement claims for Medicare items or services. 

The evidence offered by the IG also unequivocally proves that Petitioner pled guilty to crimes that fall within the reach of section 1128(a)(3) of the Act.  Section 1128(a)(3) covers crimes of a financial nature that relate to health care items or services other than Medicare or Medicaid items or services.  Those include fraud committed against private health insurers consisting of false reimbursement claims for items or services covered by those insurers.  The conspiracy to which Petitioner pled guilty included a scheme to defraud private insurers.  Petitioner pled guilty to direct involvement in a scheme to fraudulently obtain money by virtue of false reimbursement claims filed with several non-government health insurers.  IG Ex. 2 at 17-18. 

The specific counts of generating fraudulent prescriptions to which Petitioner pled guilty involved prescriptions for medications that were reimbursed by insurers including Blue Cross and Blue Shield of Alabama, among others. IG Ex. 2 at 13.  Petitioner’s co-conspirators billed private insurers for fraudulent prescriptions including prescriptions generated by Petitioner.  Id. at 14, 16.  As is the case with the elements of the conspiracy that were aimed at Medicare, the conspiracy aimed at private insurers had a direct and palpable relationship to items and services covered by those insurers. 

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The IG elected to exclude Petitioner for a period of at least five years.  That is the minimum exclusion period mandated for exclusions imposed pursuant to sections 1128(a)(1) and (a)(3) of the Act.  Consequently, the length of Petitioner’s exclusion is not an issue in this case.