Florentina Mariana Mayko, DAB CR6535 (2024)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Florentina Mariana Mayko, from participation in Medicare, Medicaid, and all other federal health care programs based on her conviction of a criminal offense that was related to the delivery of a health care item or service under Medicare.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner because she has a conviction for conspiracy to commit health care fraud, with a victim of her crime being the Medicare program.  The IG has proven three aggravating factors, and no mitigating factors are present.  An 18-year exclusion, effective April 18, 2024, is not unreasonable.

I.     Background

In a letter dated March 29, 2024, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Social Security Act (Act) (42 U.S.C. § 1320a-7b(f)) for a minimum period of 18 years, effective 20 days from the date of the letter.  IG Ex. 1 at 1.  The IG explained the following bases for excluding Petitioner:

Page 2

The [IG] is imposing this exclusion under section 1128(a)(1) of the Act, due to your conviction (as defined in section 1128(i) of the Act), in the United States District Court for the Middle District of Pennsylvania, of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program.

IG Ex. 1 at 1.  The IG informed Petitioner that the exclusion was for “a minimum period of 18 years.”  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(c)(3)(B).  The IG extended the exclusion period from the statutory minimum of five years to 18 years based on the presence of the following three aggravating factors:  1.) The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government program or one or more entities of $50,000 or more, with $1,408,900 in court-ordered restitution; 2.) The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more, from “about January 2018 to about December 2019”; and 3.) The sentence imposed by the court included incarceration, specifically, 30 months of incarceration.  IG Ex. 1 at 1; see 42 C.F.R. § 1001.102(b).  The IG did not cite any mitigating factors.  IG Ex. 1; see 42 C.F.R. § 1001.102(c).

Petitioner filed a timely request for an administrative law judge (ALJ) hearing that was received on April 12, 2024.  Thereafter, the Civil Remedies Division issued my Standing Pre-Hearing Order.  On May 14, 2024, I presided over a telephonic pre-hearing conference, and the following day I issued an order summarizing the conference.

The IG, through counsel, filed a brief and five proposed exhibits (IG Exs. 1-5), along with a reply brief.  Petitioner filed a brief (P. Br.).  In the absence of evidentiary objections, I admit IG Exhibits 1-5 into the evidentiary record.

Neither party has submitted the written testimony of any witnesses, nor has a party provided notice that it is unable to provide the written direct testimony of an essential witness.  See Standing Pre-Hearing Order § 14.  An in-person hearing for the purpose of cross-examination of witnesses is therefore unnecessary.  See Standing Pre-Hearing Order §§ 15, 16.  This matter is ready for a decision on the merits of the written record.

II.    Issues

Whether there is a basis for exclusion, and, if so, whether the length of the exclusion that the IG has imposed is unreasonable.  42 C.F.R. § 1001.2007(a)(1).

Page 3

III.   Jurisdiction

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

IV.   Findings of Fact, Conclusions of Law, and Analysis1

1. Petitioner was convicted of a program-related crime, in that her criminal offense was related to the delivery of a health care item or service under the Medicare program, which subjects her to a mandatory exclusion from all federal health care programs for a minimum period of five years.

Subsection 1128(a)(1) requires a mandatory exclusion from all federal health care programs under certain conditions.2  Section 1128(a)(1) states:

(a) Mandatory Exclusion.—The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(1) Conviction of program-related crimes—Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

42 U.S.C. § 1320a-7(a)(1).

As explained below, I find that Petitioner was convicted of a criminal offense for purposes of the Act that mandates exclusion from all federal health care programs for a minimum period of five years.

On May 9, 2023, the United States Attorney for the Middle District of Pennsylvania filed a one-count information charging that Petitioner participated in a conspiracy to commit

Page 4

health care fraud, in violation of 18 U.S.C. § 1349.  IG Ex. 3.  The information detailed that Petitioner became the chief executive officer (CEO) of Pain Medicine of York (PMY) in January 2018 and served in that capacity until PMY ceased its operations at the end of 2019.  IG Ex. 3 at 4.  As CEO, Petitioner was regularly “in charge of the day-to-day management of PMY’s operations.”  IG Ex. 3 at 4.  PMY had a practice that it determined “would be necessary to make the business sufficiently profitable” that involved administering both a presumptive urine drug test (UDT) and a definitive UDT for its patients at every monthly office visit.  IG Ex. 3 at 13.  PMY operated its own drug testing laboratory, and billed Medicare more than $10 million for UDTs between mid- 2017 and the end of 2019.  IG Ex. 3 at 13.  PMY “implemented a standard UDT billing practice by using a form included in each patient file at every office visit,” with the test order of “Drugs of Abuse Screen with Reflexive Confirmation” pre-checked on the form.  IG Ex. 3 at 16.  The information charged that Petitioner was not only aware of the UDT order form, but “was responsible for making edits to the form, and ensured that medical providers at PMY used the form at each visit.”  IG Ex. 3 at 16.  The information noted that a provider had expressed concern that ‘“ordering urine drug screens every visit on all Suboxone patients just to generate income”’ were ‘“unnecessary tests”’ and ‘“outside the standard of care.”’  IG Ex. 3 at 17.  Likewise, when PMY’s billing company reported that an insurer had instituted pre-payment audits of UDTs, Petitioner “express[ed] concerns about falling income despite ‘increasing business.’”  IG Ex. 3 at 19.  When faced with multiple insurance companies’ concerns about its UDT practices, Petitioner reported that “changing PMY’s practice of ordering multiple UDTs for each patient at every office visit would put the company out of business.”  IG Ex. 3 at 20.

On June 14, 2023, Petitioner, with the assistance of counsel, entered a guilty plea to the conspiracy to commit health care fraud offense charged by information.  IG Ex. 2; see IG Exs. 3; 4 at 1.

On December 14, 2023, a District Judge imposed judgment based on Petitioner’s guilty plea to count one of the information.  IG Ex. 4 (Amended Judgment in a Criminal Case, dated January 9, 2024).  The sentence imposed included 30 months of imprisonment and an order that Petitioner pay $1,408,976.48 in restitution to the Centers for Medicare & Medicaid Services (CMS).  IG Ex. 4 at 2, 6.

Petitioner argues that “[s]he did not intend or planned [sic] to be part of a fraudulent activity,” and blames PMY’s individual “providers” for ordering any unnecessary tests.  P. Br. at 9, 12.3  Petitioner also claims she received ineffective assistance from her counsel.  P. Br at 11.  Petitioner cannot re-litigate or collaterally attack her conviction in this forum.  42 C.F.R. § 1001.2007(d).  Petitioner was the subject of a 26-page, one-count

Page 5

information charging that she engaged in a conspiracy to commit health care fraud, and she pleaded guilty to the single count charged by information.  IG Exs. 2, 3.  Pursuant to section 1128(i)(3) of the Act, an individual is considered to have been convicted of a criminal offense “when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court.”  42 U.S.C. § 1320a-7(i)(3).  Petitioner pleaded guilty to the criminal offense of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and was ordered to serve 30 months of imprisonment and to pay $1,408,976.48 in restitution to the victim of the crime, CMS.  IG Ex. 4 at 6; see 18 U.S.C. § 3553(a)(7) (restitution is provided to the victims of an offense).

Congress, through enactment of the Act, determined that an individual who has been convicted of a criminal offense related to either the delivery of an item or service under Medicare or a state health care program must be excluded from federal health care programs for no less than five years, and it afforded neither the IG nor an ALJ the discretion to impose an exclusion of a shorter duration.  42 U.S.C. § 1320a-7(c)(3)(B).  I cannot shorten the length of the exclusion to a period of less than five years because I do not have authority to “find invalid or refuse to follow Federal statutes or regulations.”  42 C.F.R. § 1005.4(c)(1).  Petitioner has a criminal conviction for conspiracy to commit health care fraud that was related to her role as CEO of a practice where she regularly managed day-to-day operations, and a victim of the conspiracy was the Medicare program.  Inasmuch as Petitioner, in her role as CEO, engaged in a conspiracy to commit health care fraud, and the Medicare program sustained more than $1.4 million in losses as a result of the unnecessary UDTs that were billed by means of the conspiracy, Petitioner’s criminal offense undoubtedly relates to the delivery of a health care item or service under Medicare.  Petitioner’s exclusion is mandated for a minimum period of five years based on subsection 1128(a)(1).

2. An 18-year minimum exclusion is reasonable based on the presence of three aggravating factors and no mitigating factors.

The Act requires a minimum exclusion period of five years when the exclusion is mandated under section 1320a-7(a).  42 U.S.C. § 1320a-7(c)(3)(B).  In this case, exclusion is required under section 1320a-7(a)(1), and therefore Petitioner must be excluded for a minimum of five years.  The IG has the discretion to impose an exclusion longer than the minimum period when aggravating factors are present.  See 42 C.F.R. § 1001.102.  The IG increased the minimum exclusion period from five years to 18 years based on the presence of three aggravating factors.  IG Ex. 1 at 1-2.  The IG bears the burden of persuasion with respect to aggravating factors, and Petitioner bears the burden of persuasion with respect to mitigating factors.  42 C.F.R. § 1005.15(c).

Petitioner does not dispute the presence of three aggravating factors.  Request for Hearing; P. Br.  Nor does Petitioner specifically dispute that a 13-year lengthening of the minimum period of exclusion is reasonable based on the IG’s application of three

Page 6

regulatory aggravating factors.  Request for Hearing; P. Br.  Rather, aside from arguing that she did not personally engage in fraudulent conduct, Petitioner claims that the IG should have applied a mitigating factor, cooperation with federal or state officials.  P. Br. at 4, 11-13; see 42 C.F.R. § 1001.102(c)(3).  As I explain below, an 18-year exclusion is reasonable based on the presence of three aggravating, and no mitigating, factors.

The first aggravating factor is that the loss to a government program or other entities as a result of Petitioner’s criminal conduct was greater than $50,000, as evidenced by the sentencing order that she pay $1,408,976.48 in restitution to CMS.  IG Ex. 4 at 6; 42 C.F.R. § 1001.102(b)(1).  The Departmental Appeals Board (DAB) has recognized that “restitution is a measure of program loss.”  Hussein Awada, M.D., DAB No. 2788 at 7 (2017).  The amount of loss is quite significant and is more than 28 times the $50,000 threshold for application of this aggravating factor.  IG Ex. 4 at 6; 42 C.F.R. § 1001.102(b)(1).  The DAB has explained that when program loss is substantially higher than the threshold amount, this factor may be considered “an ‘exceptional aggravating factor’ to be accorded significant weight.”  Laura Leyva, DAB No. 2704 at 10 (2016).  While there are a number of enumerated aggravating factors, an exceptional aggravating factor signals that the petitioner’s conduct was egregious enough to cause losses well beyond the minimum regulatory threshold.  Petitioner does not dispute that she was ordered to pay more than $1.4 million in restitution, nor does she argue that the IG misapplied this aggravating factor to lengthen the exclusion.  The IG had a reasonable basis to lengthen the exclusion based on this aggravating factor.  42 C.F.R. 
§ 1001.102(b)(1).

The second aggravating factor is that the acts resulting in Petitioner’s conviction, or similar acts, were committed over a period of one year or more.  42 C.F.R. 
§ 1001.102(b)(2); see IG Ex. 3 (detailing Petitioner’s role in the conspiracy since January 2018, when she became the CEO of PMY, and continuing through December 2019).  The IG properly considered the length of the acts underlying Petitioner’s conviction to be an aggravating factor.  42 C.F.R. § 1001.102(b)(2); see Kimberly Jones, DAB No. 3033 at 11 (2021) (unlawful conduct that “occurred over a period far exceeding a year . . . more than satisfies the aggravating factor and supports the significant weight give to it”).

The third aggravating factor is that the sentence imposed included incarceration, specifically 30 months of incarceration.  IG Ex. 4 at 2; 42 C.F.R. § 1001.102(b)(5).  Because Petitioner had been sentenced to a significant period of incarceration, the IG had a reasonable basis to lengthen the exclusion.  42 C.F.R. § 1001.102(b)(5).

Petitioner does not dispute the IG’s application of the aforementioned aggravating factors, nor does Petitioner specifically dispute that the IG had a reasonable basis to lengthen the minimum period of exclusion by 13 years based on these three aggravating factors.  Request for Hearing; P. Br.  Petitioner’s sole regulatory argument addressing the length of the exclusion is her unsupported claim that her cooperation “resulted in others

Page 7

being convicted or excluded from Medicare, Medicaid, and all other federal health care programs.”  P. Br. at 11.

Petitioner is correct that evidence of aggravation may be offset by evidence of mitigation if it relates to one of the factors set forth at 42 C.F.R. § 1001.102(c).  Pursuant to 42 C.F.R. § 1001.102(c)(3), Petitioner may demonstrate mitigation if her cooperation resulted in others being convicted or excluded from Medicare, Medicaid, and all other federal health care programs; resulted in additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses; or resulted in a civil monetary penalty or assessment pursuant to 42 C.F.R. part 1003.

Petitioner claims that she sat for two proffer sessions, along with an “attorney proffer, plus several communications back and forth with the government,” in addition to providing a “large amount of information” on PMY’s owner and other individuals.  P. Br at 10.  Petitioner claims that these individuals have pleaded guilty and are awaiting sentencing.  P. Br. at 10-11.

The IG submitted evidence that any cooperation provided by Petitioner did not satisfy the mitigating factor for cooperation.  IG Ex. 5 (email from Assistant United States Attorney reporting that Petitioner’s two proffer sessions were not very productive from the standpoint of building cases against other defendants, and explaining that although Petitioner was initially approached as a target for cooperation, “another member of the conspiracy was the first one to enter into a plea and signed a cooperation agreement”); see 42 C.F.R. § 1001.102(c)(3).

Although Petitioner sat for proffer sessions with law enforcement, she has not presented any evidence that these proffer sessions amount to the cooperation contemplated by 42 C.F.R. § 1001.102(c)(3).  See P. Br. at 10; IG Ex. 5.  Even accepting Petitioner’s claim that she “cooperated” with law enforcement officials, Petitioner has not proven that any cooperation yielded any of the outcomes specified in section 1001.102(c)(3), such as a conviction, exclusion, other cases being investigated, or reports being issued.  Mitigation pursuant to section 1001.102(c)(3) requires not just cooperation, but also that any cooperation produces a specific result, namely other convictions, exclusions, investigations, reports being issued that identify program vulnerabilities and/or civil monetary penalties or assessments.  Further, aside from the prosecutor’s opinion that Petitioner does not merit “cooperation credit” based on the outcomes specified by 42 C.F.R. § 1001.102(c)(3), Petitioner has not claimed, nor does the evidence suggest, that she received a downward departure from the Sentencing Guidelines based on her claimed cooperation.4

Page 8

In the absence of any argument or evidence demonstrating that the lengthening of the minimum period of exclusion to 18 years based on the presence of three aggravating factors is unreasonable, I conclude that the imposition of a minimum period of exclusion for 18 years is reasonable.  42 C.F.R. § 1001.2007(a).  Petitioner has not demonstrated the presence of any mitigating factors.

3. The effective date of Petitioner’s exclusion is April 18, 2024.

The effective date of the exclusion, April 18, 2024, is 20 days after the date of the IG’s March 29, 2024 letter and is established by regulation.  See 42 C.F.R. § 1001.2002(b).  I am bound by that regulation.  42 C.F.R. § 1005.4(c)(1).

V.    Conclusion

For the foregoing reasons, an 18-year exclusion from participation in Medicare, Medicaid, and all other federal health care programs, effective April 18, 2024, is reasonable.