Eqlima Sidiqi, CR6323 (2023)

DECISION

The Inspector General (IG) of the Department of Health and Human Services excluded Petitioner, Eqlima Sidiqi, from participating in all federal health care programs for five years under 42 U.S.C. § 1320a‑7(a)(1).  Petitioner requested a hearing before an administrative law judge to dispute the exclusion.  For the reasons explained below, I conclude that the IG has a basis for excluding Petitioner and that the five-year exclusion period is proper because it is the minimum length of exclusion required by statute.

   I. Case Background and Procedural History

In an April 28, 2023 notice, the IG informed Petitioner that she was excluding Petitioner from participation in all federal health care programs under section 1128(a)(1) of the Social Security Act (42 U.S.C. § 1320a-7(a)(1)) “for the minimum statutory period of 5 years” due to her conviction in the Circuit Court for St. Louis City, Missouri (Circuit Court) of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  IG Ex. 1 at 1.

Petitioner timely requested a hearing to challenge the exclusion and the length of exclusion.  On May 9, 2023, the Civil Remedies Division (CRD) issued an

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Acknowledgment Letter and my Standing Order.  These documents provided notice of a prehearing conference and the procedures that govern this case.

On May 22, 2023, Petitioner filed a completed Informal Brief (P. Br.) in which Petitioner stated that she wanted a hearing to provide her testimony and that of another witness.  P. Br. at 3.

On May 23, 2023, I held a prehearing conference by telephone, the substance of which is summarized in my May 23, 2023 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions (Prehearing Conference Order).  At the conference, I explained that the main issue in this case was whether the IG was authorized to exclude Petitioner.  I also stated that if the evidence in this case supported exclusion under 42 U.S.C. § 1320a‑7(a)(1), then the minimum length of exclusion was five years.  Prehearing Conference Order at 1.  I also noted that Petitioner wanted witnesses to testify at a hearing and “explained that, as indicated in my Standing Order ¶ 11, parties must file written direct testimony for any proposed witnesses. . . .  I also explained that I would hold a hearing only if the opposing party seeks to cross-examine one or more witnesses from whom written direct testimony was submitted (Standing Order ¶ 12).”  Prehearing Conference Order at 1-2.  With the agreement of the parties, I also established a prehearing submission schedule.  Prehearing Conference Order at 2.

In conformance with the Standing Order and the Prehearing Conference Order, the IG filed a brief (IG Br.) and six exhibits.  Petitioner filed a supplement to the Informal Brief (P. Supp. Br.).  The IG filed a reply brief.

II.  Issue

Whether the IG has a basis for excluding Petitioner from participating in all federal health care programs for five years under 42 U.S.C. § 1320a-7(a)(1).

III.  Admission of Evidence and Decision on the Written Record

I admit IG Exhibits 1 through 6 into the record because Petitioner did not object to them.  P. Supp. Br. at 1; Standing Order ¶ 13; see also 42 C.F.R. § 1005.8(c).

I directed the parties to submit written direct testimony for any witnesses that they wanted to present in this case (except for expert witnesses).  42 C.F.R. § 1005.16(b); Standing Order ¶ 11; Prehearing Conference Order at 2.  I also stated that unless a party files admissible written direct testimony and the opposing party requests to cross-examine that witness, then I would not conduct a hearing and would issue a decision based on the written record.  Standing Order ¶ 12; see also 42 C.F.R. § 1005.16(b).

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In the present case, the IG has no witnesses to present and indicated that a hearing is unnecessary.  IG Br. at 4-5.  Although Petitioner stated that she wanted two witnesses to testify in this case, she did not submit any written direct testimony, even though I highlighted this requirement at the prehearing conference.  See Prehearing Conference Order at 2.  As a result, an in-person hearing is not necessary, and I issue a decision based on the written record.  Vandalia Park, DAB No. 1940 (2004).

IV.  Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007, 1005.2.

V.  Findings of Fact, Conclusions of Law, and Analysis

1.  On October 24, 2022, Petitioner pleaded guilty to a felony based on making false statements to the Missouri Medicaid program to receive health care payments.  Also on October 24, 2022, the Circuit Court entered a judgment against Petitioner, finding that she was guilty of the offense based on her guilty plea.  The court sentenced Petitioner to three years of probation.

On December 22, 2020, a grand jury empaneled by the Circuit Court indicted Petitioner on two criminal counts.  IG Ex. 2.  Count 1 of the Indictment alleged the following:

[Petitioner], in violation of Section 191.905.1 [Revised Statutes of Missouri], committed the class D felony of Medicaid Fraud:  Making or Causing to be Made a False Statement to Receive a Health Care Payment . . . in that between August 5, 2019, and September 17, 2019, . . . [Petitioner] was a health care provider and knowingly caused false representations to be made to the Missouri Medicaid Program (MO HealthNet), a health care payer, for the purpose of receiving health care payments, to wit:  that Missouri Medicaid Participant A.N. received personal care services as indicated on [Petitioner’s] personal care attendant time reports which were false representations of material fact and known by the [Petitioner] to be false when made.

IG Ex. 2 at 1.

On October 24, 2022, Petitioner pleaded guilty to Count 1 of the Indictment and the Circuit Court entered a judgment in which the court found Petitioner guilty based on the guilty plea.  IG Ex. 4 at 1; see also IG Ex. 3.  The Circuit Court sentenced Petitioner to

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three years of probation.  IG Ex. 4 at 2.  The Circuit Court also ordered Petitioner to pay restitution of $5,000 and $1,022.74.  IG Ex. 4 at 3.

On October 24, 2022, Petitioner paid restitution in the amounts of $5,000 and $1,022.74 to the Missouri HealthNet reimbursement fund.  IG Ex. 5.

2.  Petitioner was convicted of a criminal offense related to the delivery of a health care item or service under a state health care program;1 therefore, exclusion is required under 42 U.S.C. § 1320a‑7(a)(1). 

The IG must exclude an individual from participation in any federal health care program if that individual was 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 U.S.C. § 1320a‑7(a)(1).  The facts in this case show that Petitioner meets this standard for exclusion.

Petitioner was convicted of a criminal offense.  For purposes of exclusion, individuals are deemed “convicted” of an offense if any of the following are met:

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

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42 U.S.C. § 1320a‑7(i)(1)-(4).  In the present case, the Circuit Court entered a judgment of conviction against Petitioner because the court “[f]ound [Petitioner] guilty upon a plea of guilty.”  IG Ex. 4 at 1.  Therefore, Petitioner was “convicted” of a criminal offense.

Further, Petitioner’s criminal offense was “related to” the delivery of a health care item or service under a state health care program.  For purposes of exclusion, the term “related to” simply means that there must be a nexus or common-sense connection.  See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” in another part of section 1320a-7 as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotation marks omitted). 

Petitioner pleaded guilty to a crime entitled “Violations Involving Health Care Payments,” because Petitioner had knowingly made false representations concerning the services provided to a Missouri Medicaid participant.  IG Ex. 2 at 1; IG Ex. 4 at 1.  The Indictment indicated that the crime was a “class D felony of Medicaid Fraud.”  IG Ex. 2 at 1.  I conclude that there is a clear nexus between Petitioner’s conviction and the delivery of an item or service under the Medicaid program.  Submitting a false claim to Medicaid is “related to” the delivery of an item or service under a state health care program.  See Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (conviction for filing claims with the Medicaid program is “a program‑related offense” and “such financial misconduct is exactly what Congress sought to discourage” through imposing exclusions.); Kahn v. Inspector Gen. of the U.S. Dep’t of Health & Human Servs., 848 F. Supp. 432, 434, 436 (S.D.N.Y. 1994) (concluding that a podiatrist’s conviction for attempted grand larceny was program related for purposes of an exclusion because it was related to the filing of false Medicaid claims); Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990) (“There is no question that Mr. Greene’s crime [of filing false claims] resulted in a Medicaid overpayment and was a program-related crime triggering the mandatory exclusion under Section 1320a‑7(a).”).

Further, the Circuit Court’s order for Petitioner to pay restitution to the Missouri Medicaid Program also shows the required nexus in this case.  IG Ex. 4 at 3; IG Ex. 5.

The [Departmental Appeals] Board has also recognized that a criminal offense resulting in financial loss to a State Medicaid program is “related to” the delivery of items or services under that Medicaid program because it results “in less funds being available to pay for covered services” delivered to Medicaid patients.

Summit S. Shah, M.D., DAB No. 2836 at 8-9 (2017).

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In Petitioner’s brief, Petitioner indicated that she disagreed with the IG’s argument that Petitioner was convicted of an offense requiring exclusion; however, Petitioner did not explain her basis for disagreement.  P. Br. at 2.

Accordingly, I conclude that Petitioner’s criminal conviction was related to the delivery of a health care item or service under a state health care program.  See 42 U.S.C. § 1320a‑7(a)(1).  Therefore, the record fully supports Petitioner’s mandatory exclusion.

3.  Petitioner must be excluded for a minimum of five years. 

Petitioner requested I reduce the exclusion to probation.  Petitioner provided various reasons for this request, including her long health care career, a mitigating factor under 42 C.F.R. § 1001.102(c), and Petitioner’s prompt payment of restitution.  P. Br. at 1-2; see also CMS Ex. 6.

However, because I have concluded that a basis exists to exclude Petitioner under 42 U.S.C. § 1320a‑7(a)(1), Petitioner must be excluded for a minimum of five years.  42 U.S.C. § 1320a‑7(c)(3)(B).  As stated by a court of appeals in an exclusion case involving Medicaid fraud:

Once [the IG] found that the Utah state court’s disposition of the charge amounted to a conviction of a program-related offense, the Inspector General had no choice but to impose the mandatory 5-year exclusion under § 1320a-7(a)(1).

Travers, 20 F.3d 998.  Even though Petitioner argues that a mitigating factor from the regulations should provide a basis to reduce the length of exclusion, such a mitigating factor cannot be used to reduce the length of exclusion below the minimum five-year duration.  42 C.F.R. § 1001.102(c).  Therefore, Petitioner must be excluded for five years.

VII.  Conclusion

For the foregoing reasons, I affirm the IG’s determination to exclude Petitioner for five years from participating in Medicare, Medicaid, and all federal health care programs pursuant to 42 U.S.C. § 1320a‑7(a)(1).