Heidi June Elmer, DAB CR6504

DECISION

Petitioner, Heidi June Elmer, worked as a “technician manager” and surgical technician for an ophthalmology practice in Prescott Valley, Arizona.  She was part of a nefarious scheme to falsify patient medical records so that her physician-employer could perform unnecessary cataract surgeries and bill the patient’s insurer.  She, along with 46 others, was charged with conspiracy, illegally conducting an enterprise, participating in a criminal syndicate, theft, and money laundering.  Petitioner ultimately pleaded guilty to two felony counts – facilitation of fraudulent schemes and artifices; and securing the proceeds of an offense. 

Based on her 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.

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Background

In a letter dated February 29, 2024, 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, and the case has been assigned to me. 

Submissions.  The IG submitted a written argument (IG Br.) and seven exhibits (IG Exs. 1-7).  Petitioner responded with her own brief (P. Br.), and, at our request, she submitted a supplemental brief.  (P. Supp. Br.).  In the absence of any objections, I admit into evidence IG Exs. 1-7. 

Hearing on the written record.  The parties agree that an in-person hearing is not necessary and that this case may be decided based on the written record.  IG Br. at 6; P. Br. at 3. 

Discussion

1. Petitioner must be excluded from program participation for a minimum of five years because she was convicted of criminal offenses related to the delivery of items or services under Medicare and state health care programs.  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 scheme.  Petitioner worked for an ophthalmology practice in Prescott, Arizona.  For more than nine years, she and her colleagues changed the results of patient visual acuity tests so that her physician-employer could justify billing the patients’ insurers – which included the Medicare and Medicaid programs – for unnecessary cataract surgeries and related services.  IG Ex. 3.  The insurers paid the practice more than $25,000 based on the resulting false claims that were submitted.  IG Ex. 2 at 11-12 (Indictment ¶ 6). 

In a massive indictment, filed in the Yavapai County Superior Court on December 23, 2019, Petitioner was one of 47 defendants charged with a variety of felonies connected to this scheme.  She was charged with conspiracy (Ariz. Rev. Stat. § 13-1003), illegally

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conducting an enterprise (Ariz. Rev. Stat. § 13-2312(B)), participating in a criminal syndicate (Ariz. Rev. Stat. § 13-2308(A)), fraudulent schemes and artifices (Ariz. Rev. Stat. § 13-2310), theft (Ariz. Rev. Stat. § 13-1802(A)(3)), and seven counts of money laundering in the second degree (Ariz. Rev. Stat. § 13-2317(B)).  Among other allegations, the indictment charged that she “knowingly obtained services or property of” Medicare, the Department of Veterans’ Affairs, Tricare, Medicaid, and numerous private insurers, intending to deprive them of those services or property.  IG Ex. 2 at 11-12 (Indictment Count 6). 

On February 1, 2021, Petitioner agreed to plead guilty to facilitation of fraudulent schemes and artifice and securing the proceeds of an offense.  IG Ex. 4 at 1.  The court accepted her plea on the same day.  IG Ex. 5.  Petitioner also agreed to testify against her co-defendants.2  On June 12, 2023, the court entered a judgment of guilty.  IG Ex. 6. 

Petitioner does not challenge any of this but suggests that, because she did not perform the actual billing, she should be able to continue working for the practice.  P. Supp. Br. at 2.  But the statutory language – “related to” – does not limit exclusions to those who performed the ministerial act of submitting a bill.  It includes all those who participated in the program-related crimes.  See, e.g., Yolanda Hamilton, M.D., DAB No. 3061 at 10-11 (2022) (finding that a physician, who certified patients for services they did not need, is subject to exclusion under section 1128(a)(1)).  Here, Petitioner falsified treatment records, a crime that is arguably more serious than posting a bill. 

Petitioner was thus convicted of a program-related crime and must be excluded.  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.