Heather D. Stelling, DAB CR6589 (2024)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Dr. Heather D. Stelling (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for seven years pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)).  For the reasons discussed below, I conclude that the IG has a basis to exclude Petitioner from program participation and the seven-year exclusion is not unreasonable based on the evidence provided.  The IG’s exclusion determination is affirmed. 

I. Background and Procedural History

By letter dated April 30, 2024, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Act for a minimum period of seven years, effective 20 days from the date of the letter.  IG Exhibit (Ex.) 1 at 1.  The IG excluded Petitioner due to her conviction of a criminal offense related to the delivery of an item or service under Medicare or a State health care program in the United States District Court for the Western District of Missouri (District Court).  IG Ex. 1 at 1. 

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The mandatory minimum exclusion under section 1128(a) of the Act is five years.  In this case the IG imposed a seven-year exclusion based on the presence of two aggravating factors.  IG Ex. 1 at 1.  The IG did not identify any mitigating factors. 

On July 3, 2024, Petitioner timely requested a hearing (RFH) before an administrative law judge (ALJ).  On July 9, 2024, the Civil Remedies Division (CRD) issued an Acknowledgment Notice, my Standing Prehearing Order, and the CRD Procedures. 

A prehearing conference was held by telephone on July 30, 2024.  On August 19, 2024, an Order Following Prehearing Conference and Setting Briefing Schedule (Prehearing Conference Order) was issued.  The Prehearing Conference Order summarized the substance of the prehearing conference and set a briefing schedule. 

On September 13, 2024, the IG submitted an informal brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  On October 11, 2024, Petitioner submitted an informal brief (P. Br.) and seven proposed exhibits (P. Exs. 1-7).  The IG submitted a reply brief on October 25, 2024 (IG Reply). 

II. Admission of Exhibits and Decision on the Record

All proposed exhibits are admitted into the record without objection.  42 C.F.R. § 1005.8(c). 

Neither party offered witnesses to testify, and both parties indicated that an evidentiary hearing is unnecessary in this case.  IG Br. at 11; P. Br. at 16.  Therefore, this matter will be decided on the written record.  Prehearing Conference Order ¶ 7.  

III. Issues

The issues are:  

• 1)    Whether the IG has a basis to exclude Petitioner from participation in Medicaid, Medicare, and any federal health care programs; and
• 2)    If so, whether the seven-year period of exclusion imposed by the IG is unreasonable.  

IV. Jurisdiction

Jurisdiction is provided under 42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1). 

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V. Legal Authorities

The Secretary of the U.S. Department of Health and Human Services (Secretary) shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or any State health care program.  42 U.S.C. § 1320a-7(a)(1).  The Secretary has delegated this exclusion authority to the IG.  48 Fed. Reg. 21,662 (May 13, 1983). 

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).  The IG has the discretion to impose an exclusion longer than the minimum period when aggravating factors are present.  42 C.F.R. § 1001.102(b).  Here, the IG has imposed a seven-year exclusion based on two aggravating factors. 

The IG has the burden of proving the basis for the exclusion and the existence of any aggravating factors.  42 C.F.R. § 1005.15(c); Standing Pre-Hearing Order ¶ 6.  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors.  42 C.F.R. § 1005.15(c); Standing Pre-Hearing Order ¶ 6.  The standard of proof is a preponderance of the evidence, and there may be no collateral attack of the conviction that provides the basis of the exclusion.  42 C.F.R. §§ 1001.2007(c)-(d), 1005.15(d). 

An excluded individual may request a hearing before an ALJ, but only on the issues of whether the IG had a basis for the exclusion and whether an exclusion longer than the required minimum period is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a), 1005.2(a). 

VI. Findings of Fact

On December 2, 2022, Petitioner was charged, by criminal information, with knowingly and willfully making materially false statements in a Medicare beneficiary’s patient record in violation of 18 U.S.C. §§ 1035 and 2.  IG Ex. 2 at 1-2.  The criminal information alleged that Petitioner falsely stated in the identified beneficiary’s record that she had provided an office visit to the beneficiary on September 10, 2018, despite knowing that she did not have an office visit with the beneficiary on said date.  IG Ex. 2 at 1-2.  On the same date that she was charged, Petitioner pleaded guilty to making a false statement in relation to a health care matter, in violation of 18 U.S.C. §§ 1035 and 2.  IG Ex. 3 at 1-2, 15. 

At all times relevant to this case, Petitioner was a pain management physician who operated Stelling Pain Management, located in Joplin, Missouri.  IG Ex. 3 at 2.  Petitioner was licensed as a physician by the Missouri Board of Registration for the Healing Arts 

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(Missouri Board) and was enrolled as a physician in Medicare and Missouri’s Medicaid Program.  Id.  On June 14, 2018, the Missouri Department of Revenue (DOR) notified the Missouri Board that Petitioner had failed to file and/or pay state income taxes for tax year 2014.  Id.  The Missouri Board then notified Petitioner that her license would be suspended if she did not obtain a Certificate of Tax Compliance from the DOR by September 12, 2018.  Id. 

However, Petitioner claimed that she had, in fact, timely filed her taxes for tax year 2014 on April 15, 2018, which was within the applicable three-year extended filing deadline.  P. Ex. 4 at 1.  That tax filing was lost in transit.  P. Ex. 4 at 1.  Petitioner was not “overly concerned” about the September 12, 2018 deadline, as she believed that her filing had been submitted properly and would be processed normally so that the issue would resolve itself.  Id. at 2.  

DOR erroneously notified the Missouri Board that Petitioner remained non-compliant on September 10, 2018.  IG Ex. 3 at 2.  In response, the Missouri Board erroneously suspended Petitioner’s license to practice as a physician beginning September 12, 2018.  Id.  Upon receipt of the Missouri Board’s suspension notice, Petitioner initially closed her practice.  P. Ex. 4 at 2.  Petitioner faxed copies of her 2014 tax filing to the DOR on September 17, 2018.  Id.  Despite the suspension, Petitioner reopened her practice on September 17, 2018.  Id.  On September 21, 2018, Petitioner paid the alleged tax delinquency under protest and sought review of the delinquency with the DOR.  Id. 

On September 24, 2018, the DOR provided the Missouri Board with Petitioner’s Certificate of Tax Compliance, and the Missouri Board reinstated Petitioner’s license from the period of suspension, which was September 12, 2018 through September 24, 2018.  IG Ex. 3 at 2; P. Ex. 4 at 2. 

On July 10, 2019, DOR determined that there was no tax delinquency.  IG Ex. 3 at 2.  On July 17, 2019, the Missouri Board amended its records to show that Petitioner’s license was not intended to be suspended from September 12, 2018 through September 24, 2018.  Id.  

On December 2, 2022, Petitioner entered into a plea agreement with the U.S. Attorney’s Office in which she admitted that she continued to practice medicine from September 12, 2018 through September 24, 2018, while under the impression that her license was suspended and knowing that Medicare and Medicaid would not pay claims for services rendered while her license was suspended.  IG Ex. 3 at 2.  Petitioner did not originally bill or intend to bill for any of the patients to whom she provided care during the suspension period.  P. Ex. 4 at 3.  Despite her original intentions, Petitioner submitted claims for beneficiaries that she treated during the suspension with altered dates of service that fell outside of the suspension period.  IG Ex. 3 at 2-3. 

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Petitioner altered a patient’s record to reflect that the patient was treated on September 10, 2018, two days prior to her license suspension, though Petitioner treated the patient on September 18, 2018, when the suspension was in effect.  Id. at 3.  In the same or similar manner, Petitioner altered at least 24 patient records to make them appear as though she had not treated the patients during her license suspension period.  Id.  As a result, Medicare and the Missouri Medicaid program aggregately paid $146,026.29 in claims that they would not have otherwise paid.  Id.  Petitioner maintains that an employee submitted the claims related to the altered patient records, without her knowledge.  P. Ex. 4 at 3. 

In February 2019, Petitioner learned from her employee that the September 10, 2018 charts were billed for patients that were seen on September 18, 2018.  P. Ex. 4 at 3.  Upon learning this, Petitioner called the billing company to reverse the charges and return any erroneous payments for patients seen on September 18, 2018.  Id.  Petitioner only retained $591.33 of the $7,200 in mistaken charges.  Id.  After her license was reinstated, she properly billed for patient visits that occurred on September 18, 2018, collecting $1,574.14.  Id. 

Petitioner agreed to and was ordered by the District Court to pay $146,026.29 in restitution.  IG Ex. 3 at 3, 10; IG Ex. 4 at 5.  Additionally, as a result of Petitioner’s guilty plea, the Missouri Board revoked Petitioner’s license to practice as a physician for a minimum period of two years.  IG Ex. 5 at 5; P. Ex. 3 at 5. 

VII. Analysis and Conclusions of Law

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

In order to prevail, the IG must prove Petitioner was convicted of a criminal offense related to the delivery of a health care item or service.  Petitioner does not dispute she was convicted of a criminal offense within the meaning of the statute.  P. Br. at 2 n.1.  Petitioner pleaded guilty, and the District Court accepted the plea and adjudicated her guilty of one count of making a false statement in relation to a health care matter, in violation of 18 U.S.C. §§ 1035 and 2.  IG Ex. 3 at 1-2, 15; IG Ex. 4 at 1.  Accordingly, Petitioner was “convicted” of a criminal offense as defined in subsections 1128(i)(2) and (3) of the Act. 

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To prove that Petitioner’s conviction was related to the delivery of a health care item or service, the IG must show that there is a nexus between the offense and the delivery of a health care item or service.  The Departmental Appeals Board (Board) has repeatedly held that the phrase “related to” within the context of section 1128(a)(1) requires only that a common sense nexus exist between the offense and the delivery of a health care item or service.  Summit S. Shah, M.D., DAB No. 2836 at 6 (2017) (citing cases therein).  

Petitioner does not dispute that her conviction is related to the delivery of an item or service under Medicare or Medicaid.  P. Br. at 2.  In this case, Petitioner altered patient records with false dates of service for services rendered during her license suspension period, in order to make it appear that services were rendered prior to the suspension.  IG Ex. 3 at 2.  These false claims were submitted to Medicare and the Missouri Medicaid program by an employee of Petitioner’s practice.  P. Ex. 4 at 3.  “The filing of a false claim or facilitating the filing of a false claim is considered related to the delivery of an item or service under [Medicare and Medicaid].”  Yolanda Hamilton, M.D., DAB No. 3061 at 11 (2022) (citing cases therein).  Accordingly, I find that Petitioner’s criminal offense was related to the delivery of items or services under the Medicare and Medicaid programs.  Petitioner is therefore subject to a mandatory five-year exclusion pursuant to section 1128(a)(1) of the Act.  

2. 2. The IG has established two aggravating factors which together justify exclusion beyond the five-year minimum.

Exclusions imposed under section 1128(a)(1) carry a five-year mandatory minimum exclusion period.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)); 42 C.F.R. § 1001.102(a).  The IG may extend the five-year exclusion period based on the presence of the aggravating factors listed in 42 C.F.R. § 1001.102(b).  If any of the aggravating factors set forth in 42 C.F.R. § 1001.102(b) justify an exclusion longer than five years, mitigating factors listed at 42 C.F.R. § 1001.102(c) may be considered as a basis for reducing the period of exclusion to no less than five years.  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); Standing Pre-Hearing Order ¶ 6. 

In this case, the IG identified two aggravating factors to support a seven-year exclusion:  1) Petitioner’s acts resulting in the conviction, or similar acts, caused a financial loss of $50,000 or more to a government program; and 2) Petitioner was subject to an adverse action by a state board that was based on the same set of circumstances that serves as the basis of the imposition of the exclusion.  42 C.F.R. § 1001.102(b)(1), (9); IG Ex. 1 at 1.  Petitioner disputes the IG’s identification of the aggravating factors.  P. Br. at 2.  The aggravating factors are discussed in detail below. 

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1. A. The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government program of $50,000 or more.

An aggravating factor exists if the “acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more entities of $50,000 or more.”  42 C.F.R. § 1001.102(b)(1). 

The District Court found that Petitioner’s acts resulted in both the Medicare and the Missouri Medicaid program aggregately paying $146,026.29 in claims that they otherwise would not have paid and ordered Petitioner to repay that same amount in restitution.  IG Ex. 3 at 3; IG Ex. 4 at 5.  This amount is nearly three times the $50,000 threshold to establish this aggravating factor. 

Petitioner argues that the $146,026.29 paid in restitution is an inaccurate figure of the financial losses sustained and that the “acts resulting in conviction” should be limited to payments received for care provided to patients on September 18, 2018.  P. Br. at 11-13.  Petitioner argues that upon learning that the improperly backdated charts were billed for September 18, 2018, she immediately requested that the $7,200 in mistaken charges be reversed, and as a result, only retained approximately $591.33 of those charges.  P. Br. at 12.  Petitioner further claims that, when the charges were properly rebilled, she collected $1,574.14 for those patient visits.  Id.  Petitioner argues that she collected less than $3,000 for the conduct that formed the basis of the criminal judgment, and that those payments collected are the only relevant payments for consideration in determining whether the aggravating factor applies.  Id.; P. Ex. 5 (spreadsheet supporting amounts billed and received for services provided on September 18, 2018); see also P. Ex. 4 at 3. According to Petitioner, the $146,026.29 restitution amount is based on all payments ever issued for certain Medicare and Medicaid patients involved in the backdated records, for services dating as far back as 2015.  P. Br. at 12-13.  

By disputing the amount of loss incurred by the Medicare and the Missouri Medicaid programs due to her actions, Petitioner is collaterally attacking her conviction.  IG Br. at 6.  I am not able to review any prior determinations of adjudicated facts.  42 C.F.R. § 1001.2007(d); see Hamilton, DAB No. 3061 at 13 (finding that it is unavailing for a petitioner to rely on “extraneous facts about the criminal proceedings that . . . resulted in a restitution amount higher than [the petitioner] believes was attributable to her”). 

The Board has previously found that restitution is a reasonable measure of program losses.  See, e.g., Laura Leyva, DAB No. 2704 at 9 (2016); Juan de Leon, Jr., DAB No. 2533 at 5 (2013).  Here, it is undisputed that the District Court ordered Petitioner to pay $127,750 to CMS and $18,276.29 to the Missouri Attorney General’s Office, totaling $146,026.29 in restitution.  IG Ex. 4 at 5. 

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Therefore, the IG has proven that the total restitution amount in this case, $146,026.29, may be used as an aggravating factor.  42 C.F.R. § 1001.102(b)(1). 

1. B. Petitioner was subject to an adverse action by a state board, based on the same set of circumstances that serve as the basis of the imposition of the exclusion.

If the circumstances that serve as the basis of the exclusion also resulted in an adverse action by any Federal, State, or local government, the IG may consider that as an aggravating factor.  42 C.F.R. § 1001.102(b)(9). 

The evidence shows that the Missouri Board revoked Petitioner’s license to practice medicine as a result of her conviction.  IG Br. at 7; IG Ex. 5.  The Findings of Fact, Conclusions of Law, and Order of Discipline issued by the Missouri Board clearly states that Petitioner’s license is “subject to automatic revocation because on or about December 2, 2022, [Petitioner] entered a guilty plea in the United States District Court for the Western District of Missouri Southwestern Division . . . to one (1) count of Making a False Statement Relating to Health Care Matters.”  IG Ex. 5 at 2.  The order  references the same charge of making a false statement relating to health care matters that formed the basis of Petitioner’s exclusion.  Id.  The order also explains that Petitioner’s license shall be revoked for a minimum of two years.  IG Ex. 5 at 5 (explaining that Petitioner may not apply for reinstatement of her license “for a period of time ranging from two to seven years following the date of the order of revocation,” pursuant to the Revised Statutes of Missouri § 334.100.5).  

Petitioner does not dispute that she was the subject of an adverse action by the Missouri Board as a result of the criminal conviction that has formed the basis for this exclusion.  Rather, Petitioner argues that this factor should be afforded little weight in determining the reasonableness of the length of her exclusion, which I discuss below.  P. Br. 13-14. 

As such, I find that the IG has proven the existence of the second aggravating factor. 

3. 3. Petitioner has failed to establish any mitigating factor recognized under 42 C.F.R. § 1001.102(c).

The regulations provide a list of mitigating factors that may be applied to reduce an exclusion to no less than five years if aggravating factors are present.  42 C.F.R. § 1001.102(c).  The applicable regulations identify only three mitigating factors that may be considered to reduce a period of exclusion:  (1) a petitioner was convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $5,000; (2) the record in the criminal proceedings demonstrates that the court determined that a petitioner had a mental, physical, or emotional condition that reduced their culpability; and (3) a petitioner’s cooperation with federal or state officials resulted in 

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others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed.  42 C.F.R. § 1001.102(c). 

Petitioner argues that a mitigating factor exists because she collected less than $3,000 for the conduct that formed the basis of her criminal judgment.   P. Br. at 12.  However, this mitigating factor applies only in situations in which the excluded individual or entity was convicted of three or fewer misdemeanor offenses.  Here, Petitioner pleaded guilty to a felony.  IG Ex. 3 at 4; IG Ex. 5 at 2.  Additionally, it has been decided that the total restitution amount of $146,026.29 is the amount of program loss attributable to Petitioner.  Petitioner has not proven the existence of  mitigating factor. 

Petitioner argues that there are additional considerations that weigh in favor of reducing the length of her exclusion, even if they do not fit within the regulatory framework for mitigating factors.  P. Br. at 14.  First, Petitioner argues that it was an error on the part of the government regarding her 2014 tax filings that resulted in Petitioner’s suspension period, and that fact should weigh in favor of reducing her exclusion period.  Id.  Second, Petitioner argues that the circumstances surrounding the patient chart backdating indicate that the improper billing was a mistake.  Petitioner argues that, though she did backdate the charts, had they not been mistakenly billed, the backdating would have been harmless.  Id. at 15.  She argues that her culpability in this case is therefore “minimal.”  Id.  Third, Petitioner argues that because her crime did not result in physical or financial harm to any patient and because she took immediate corrective action upon learning that the backdated record had been billed, she has shown ownership of her mistake and integrity in attempting to reimburse clients and third-party payors who were impacted during her suspension period.  Id.  Finally, Petitioner argues that, to the best of her knowledge, she is the sole pain management service provider within 60 miles of Joplin, Missouri that provides Sanexas therapy to treat chronic pain, and the IG’s exclusion will remove “an essential healthcare service” in that community.  Id. at 15-16. 

While I am sympathetic to the circumstances surrounding Petitioner’s suspension period and appreciate the efforts made to return the improperly billed claims, I do not have the authority to consider that information as a mitigating factor in determining whether the length of the imposed exclusion is unreasonable.  Waleed Khan, DAB No. 3083 at 9 (2023); Shaun Thaxter, DAB No. 3053 at 35 (2021) (“The mitigating factors that ALJs and the Board may consider are limited to those listed in the regulation.”).  As for Petitioner’s contention that her crime did not result in any financial harm to any patient, Petitioner ignores the significant financial harm to the integrity of the Medicare and Medicaid programs, and the indirect harm to beneficiaries of those programs.  Hamilton, DAB No. 3061 at 19 (agreeing with the ALJ’s reasoning that “‘defrauding health care programs meant to assist patients’ ‘not only threatened the fiscal integrity of the Medicare and Medicaid programs, but also harmed Medicare and Medicaid beneficiaries by wasting resources that could otherwise be used to provide beneficiaries with needed services.’”).  Finally, regardless of whether Petitioner may be eligible to receive a waiver 

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of the exclusion as “the sole physician or sole source of essential specialized services in the community,” that waiver provision is, as Petitioner concedes in her brief, “not directly applicable in these circumstances” and does not justify a reduction in the exclusion period.  P. Br. at 15 (citing 42 U.S.C. § 1320a-7(c)(3)(B)). 

For all these reasons, Petitioner has not established the presence of any mitigating factors that may be considered to reduce the period of exclusion. 

4. 4. Based on the two aggravating factors and no mitigating factors, I find that the seven-year exclusion imposed by the IG is not unreasonable.

In determining whether the length of the exclusion is unreasonable, I must determine whether the length falls into a “reasonable range” based on the evidence before me.  Jeremy Robinson, DAB No. 1905 at 5 (2004); Joann Fletcher Cash, DAB No. 1725 at 7 (2000). 

Based on the evidence, a seven-year exclusion is not unreasonable.  Petitioner pleaded guilty to making a false statement in relation to a health care matter, in violation of 18 U.S.C. §§ 1035 and 2.  IG Ex. 3 at 1-2.  The District Court ordered restitution in the amount of $146,026.29, almost three times the $50,000 threshold amount for aggravation in 42 C.F.R. § 1001.102(b)(1).  IG Ex. 3 at 3; IG Ex. 4 at 5.  It is “entirely reasonable” to consider financial losses substantially greater than the regulatory threshold to be an “exceptional aggravating factor to be accorded significant weight.”  Devon Rambert-Hairston, DAB No. 3069 at 13 (2022) (quoting Eduardo Miranda, M.D., DAB No. 2755 at 4-5 (2016) (internal quotation marks omitted)).  Accordingly, this factor alone justifies extending the period of exclusion by a significant length. 

Moreover, the Missouri Board revoked Petitioner’s license to practice medicine as a result of her conviction.  IG Ex. 5 at 2, 5.  Petitioner does not dispute that she was the subject of an adverse action by the Missouri Board.  Instead, Petitioner argues that this factor should be afforded little weight in determining the reasonableness of the length of her exclusion because the Secretary is required to promptly notify state licensing agencies when an individual is excluded, making an additional adverse action “common place.”  P. Br. 13-14 (citing 42 U.S.C. § 1320a-7(e)).  Contrary to Petitioner’s argument, the Missouri Board’s revocation of Petitioner’s license to practice medicine was due to Petitioner’s plea and conviction, not the Secretary’s reporting.  IG Ex. 5 at 2, 7.  The record shows that the Missouri Board’s revocation was effective on December 18, 2023, whereas the IG’s Notice of Exclusion is dated April 30, 2024.  Compare IG Ex. 5 at 2 with IG Ex. 1 at 1.  Therefore, the action by the Missouri Board was not “taken upon notification from the Secretary,” as Petitioner contends. P. Br. at 13.  The Board has held that an adverse action that is taken based on the same circumstances of a petitioner’s exclusion could be considered as additional evidence of the seriousness of the underlying conduct.  Narendra M. Patel, M.D., DAB No. 1736 at 29 (2000), aff’d, 319 F.3d 1317 

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(11th Cir. 2003), cert. denied, 539 U.S. 959 (2003) (stating that an adverse action beyond a criminal conviction is “additional evidence of the seriousness” of the conviction).  Petitioner’s license was revoked for a minimum of two years.  IG Ex. 5 at 5-6.  The length of the revocation of Petitioner’s license to practice medicine reflects the seriousness of the underlying conduct, further justifying the seven-year exclusion period.  Based on the evidence presented, I find that a seven-year exclusion is not unreasonable. 

VIII. Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs.  The seven-year exclusion is not unreasonable based upon the circumstances of this case.