Amina Taraa Harris, DAB CR6455 (2024)

DECISION

Petitioner, Amina Taraa Harris, is a nurse, licensed in Pennsylvania, who, while working as the Clinical Director of Nursing at a nursing home, took a second job.  She began working for a company that provided direct care services to Medicaid beneficiaries.  While performing that job, she submitted claims to the Medicaid program for services that she did not provide and was indicted on eight felony counts related to those false claims.  She ultimately pleaded guilty to one misdemeanor count of theft and paid restitution.

Based on her conviction, the Inspector General (IG) has excluded her 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 Petitioner Harris.  Because the statute mandates a minimum five-year exclusion, the length of her exclusion is, by law, reasonable.

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Background

In a letter dated October 31, 2023, 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.

Petitioner timely requested review.

The IG submitted a written argument (IG Br.) and three exhibits (IG Exs. 1-3).  Petitioner submitted her own brief (P. Br.) with no additional exhibits.

In the absence of any objections, I admit into evidence IG Exs. 1-3.

Hearing on the written record.  I instructed the parties to indicate, in their briefs, whether an in-person (video) hearing would be necessary and, if so, to explain why, to identify any proposed witness, and to submit, “in the form of an affidavit or sworn declaration,” the witness’s direct testimony.  Order and Schedule for Filing Briefs and Documentary Evidence at 3-4 (¶ 7) (December 14, 2023) (emphasis added).  The IG indicates that an in-person hearing is not necessary.  IG Br. at 7.

Petitioner, however, maintains that an in-person hearing is necessary.  She lists herself and her parents as proposed witnesses and describes their proposed testimony.  P. Br. at 3.  Contrary to the explicit instructions in my order, she does not offer an affidavit or sworn declaration of any witness.  Moreover, the testimony she proposes to elicit is either irrelevant (the status of her professional license; steps she has taken to assure that the misconduct will not recur; that she owes no money to any federal program; that the job she was asked to do was demanding) or involves legal arguments, most of which are simply incorrect or irrelevant or both (that her continuing to practice poses no risks to federal healthcare programs; that her exclusion is not mandated by law; that her period of exclusion “will expire upon consideration of this letter”).  P. Br. at 3.  Because she did not provide the written direct testimony of her witnesses, as I ordered, and, because the proffered testimony is not relevant, I find that an in-person hearing would serve no purpose and that this case should be resolved based on the written record.  

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

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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 charges.  Beginning on August 3, 2015, Petitioner worked as Clinical Director of Nursing at Willowcrest Skilled Nursing and Rehabilitation Center, which is part of the Albert Einstein Healthcare Network.  IG Ex. 3 at 5; P. Br. at 2.  In October 2019, she also began working for “Always Best Care,” an agency that provided non-skilled direct-care services to Medicaid beneficiaries.  IG Ex. 3 at 5.  She provided those services to her uncle and billed the Medicaid program for the hours she purportedly worked.  Id.; P. Br. at 2.  However, she could not have been caring for her uncle during those hours because she was working at the nursing home or was out of the country, on vacation.  IG Ex. 3 at 5-17.

In a criminal complaint, issued on October 13, 2022, Petitioner was charged with eight felony counts:

• Count 1:  knowingly submitting false information to the Medical Assistance program for purposes of obtaining greater compensation than she was entitled to, in violation of 62 Pa. Stat. § 1407(a)(1);
• Count 2:  submitting claims for services that were not rendered, in violation of section 62 Pa. Stat. § 1407(a)(4);
• Count 3:  submitting claims that misrepresented the description of the service provided, the dates of the services, the identity of the recipient, the actual provider or the attending, prescribing, or referring practitioner, in violation of 62 Pa. Stat. § 1407(a)(7);
• Count 4:  submitting claims for a service (personal care attendant) that was not rendered, in violation of 62 Pa. Stat. § 1407(a)(9);
• Count 5:  committing theft by deception or false impression, including creating “false impressions as to law, value, intention, or other state of mind, to wit:  $57,199.16 from the Medicaid program,” in violation of 18 Pa. Stat. § 3922(a)(1); and

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• Counts 6-8:  tampering with public records, in violation of 18 Pa. Stat. § 4911(a)(1).

IG Ex. 2 at 2-3; IG Ex. 3 at 2-3. (emphasis added).

The conviction.  On June 26, 2023, in the Court of Common Pleas for Bucks County, Pennsylvania, Petitioner pleaded guilty to Count 5 of the complaint, which had been reduced to a misdemeanor.  IG Ex. 2.  The court record indicates that she made restitution in full ($58,474) and that she was sentenced to six months of county probation.

Petitioner concedes that she was convicted of a criminal offense but maintains that, for a long list of reasons, she is not subject to an exclusion.  She maintains that she did not commit a crime “making a material misrepresentation regarding a Medicare benefit or payment.”  P. Br. at 1.  The exclusion statute is not limited to criminal offenses related to the Medicare program; it includes offenses related to “a state health care program,” which includes Medicaid.  Act § 1128(a)(1); 42 C.F.R. § 1001.101(a).  And, on its face, Petitioner’s conviction establishes that her theft by deception resulted in her stealing $57,199.16 from the Medicaid program.  IG Ex. 2 at 2.

Petitioner’s additional defenses – that she was caring for her very difficult uncle; that other family members were present when she was absent; that she is otherwise an exemplary nurse – are irrelevant.  P. Br. at 2-3; see, e.g., Donna Rogers, DAB No. 2381 at 6 (2011) (noting that the administrative law judge is bound by the statute and regulations and may not review the IG’s decision to exclude an individual “on the ground that . . . [she] . . . is a good person or well-thought of in the profession”).

Petitioner’s conviction falls squarely within the statutory and regulatory definition of “conviction,” and her crime was related to the delivery of services under a state health care program.  She is therefore 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.