Maria Cristina Gotoc Joshi a.k.a. Maria Christina Gotoc Mathur, DAB CR6592 (2024)

DECISION

Respondent, the Inspector General of the United States Department of Health and Human Services (the IG), excluded Petitioner, Maria Cristina Gotoc Joshi, a.k.a. Maria Cristina Gotoc Mathur, from participation in Medicare, Medicaid, and all other federal health care programs for five years based on her conviction of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  Petitioner challenges her exclusion before me.  For the reasons stated below, I affirm the IG’s exclusion action.

I.      Procedural History

By letter dated April 30, 2024, the IG notified Petitioner of her exclusion, effective 20 days from the date of the letter, from participation in Medicare, Medicaid, and all federal health programs under section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)) for the minimum statutory period of five years.  IG Exhibit (Ex.) 1.1

Page 2

The IG explained she took this action based on Petitioner’s conviction, as defined in section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), in the Superior Court of California, County of Los Angeles, 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.  Id. at 1.

Petitioner timely requested a hearing before an administrative law judge (ALJ), resulting in my designation to hear and decide this case.  I held a pre-hearing telephone conference on July 22, 2024, the substance of which is summarized in my July 23, 2024 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  See 42 C.F.R. § 1005.6.  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order at 4-5.

The IG filed a brief (IG Br.) and six proposed exhibits (IG Exs. 1-6), while Petitioner filed a brief (P. Br.) with no proposed exhibits.  The IG subsequently filed a reply brief (IG Reply).

II.      Admission of Exhibits and Decision on the Record

Petitioner objects to IG Exhibit 4, a declaration by Special Agent (SA) Alison Davis of the IG’s Office of Investigations.  P. Br. at 2-5; IG Ex. 4 at 1.  SA Davis declared she obtained and reviewed Medicare claims data from Qlarant Integrity Solutions, LLC (Qlarant), a contractor for the Centers for Medicare and Medicaid Services (CMS).  IG Ex. 4 at 1.  Based on her review of data from January 1, 2008 through October 31, 2022, SA Davis determined Victory Hospice submitted claims to the Medicare program for services purportedly provided to Medicare beneficiary J.S.  Id. at 2.  The agent asserted the records she reviewed derived from data Qlarant used to process and pay Medicare claims and kept in the course of regularly conducted business activity.  Id.  SA Davis claimed she routinely researches such records and identified “[t]he copies in I.G. Ex. XX [as] true copies of part of the original records.”  Id.

Petitioner objects to paragraphs 3 through 6 of IG Exhibit 4 on the grounds that SA Davis lacked personal knowledge sufficient to provide foundation as to the source of the claims data and how it was prepared, rendering those statements inadmissible hearsay.  P. Br. at 2 (citing Fed. R. Evid. 602).  Petitioner observes SA Davis incorrectly refers to the spreadsheet as “Exhibit XX” and misidentifies Victory Hospice as “Viceroy Hospice,” arguing that these errors underscore her lack of personal knowledge sufficient to provide foundation for her testimony.  Id. at 3 n.2.

Petitioner relatedly objects to IG Exhibit 5, the spreadsheet identified by SA Davis as Medicare claims data generated by Qlarant at her request, on the grounds that it is

Page 3

incomplete and not properly authenticated, making it inadmissible hearsay.  Id. at 3-5.  Petitioner asserts SA Davis cannot authenticate the document as a business record because she did not provide the necessary facts to establish their veracity, she is not the appropriate person to do so, and because the records are incomplete.  Id. at 4.

The IG replies that foundation for the claims data arises from the fact that “where Qlarant obtains their data is public knowledge.”  IG Reply at 5.  The IG otherwise contends the spreadsheet is admissible because SA Davis authenticated it as Qlarant’s business record.  Id. at 6.

Petitioner’s objections are overruled.  Her claim that SA Davis did not rely on her personal knowledge is incorrect.  In paragraphs 3 through 6 of her declaration, made under threat of penalty for perjury, SA Davis explains she requested data pertaining to certain Medicare claims from CMS contractor Qlarant and that the data she reviewed came from Qlarant in response to that request.  IG Ex. 4 at 1-2.  SA Davis established through personal knowledge how she obtained the data, from where she received it, and the nature of the data itself.  Petitioner has offered no evidence to rebut her assertions.  SA Davis’ declaration is therefore relevant and admissible in its entirety.

Petitioner correctly observes SA Davis lacked sufficient knowledge to authenticate the data summarized in IG Exhibit 5 as Qlarant’s business records.  P. Br. at 5.  The IG’s efforts to characterize these records as authenticated by virtue of the fact that “where Qlarant obtains their data is public knowledge,” see IG Reply at 5, fails because this “fact” is not at all generally known public knowledge of which I could take judicial notice within the meaning of Fed. R. Evid. 201(b).  The IG’s contention that SA Davis could authenticate this data as a business record is similarly inapt because she is not a custodian of records for Qlarant, as is the contention that a spreadsheet generated for purposes of litigation could somehow be self-authenticating without certification from the appropriate custodian.  IG Reply at 6; see also Fed. R. Evid. 803(6); Fed. R. Evid. 902(11), (13).

Nevertheless, the IG’s failure to establish foundation for a proposed exhibit under the Federal Rules of Evidence is not dispositive as to its admissibility.  The regulations governing this proceeding do not contemplate application of the Federal Rules of Evidence to preclude admission of evidence except to consider whether such evidence is unreliable.  42 C.F.R. § 1005.17(b).  The relevant question is whether SA Davis’s statements in IG Exhibit 4 or the data she relied on in IG Exhibit 5 are so unreliable as to preclude their admission.  I see no basis to make such a finding.  First, aside from invoking the technical requirements for admissibility under the Federal Rules, Petitioner does not actually dispute the specific facts in paragraphs 3 through 6 of SA Davis’s declaration.  See P. Br. at 2.  And while the apparent lack of review by IG counsel of a witness’ declaration for typographic errors and omissions does not inspire confidence,

Page 4

Petitioner’s claim that the reliability of SA Davis’s testimony can be questioned on the basis of these scrivener’s errors is equally unpersuasive.

SA Davis’s uncontested declaration, made under penalty of perjury, establishes she contacted Qlarant and obtained data from that contractor.  At minimum, her reliance on that data to conduct her investigation makes it relevant for purposes of admissibility.  In other words, I need not accept the data in IG Exhibit 5 as true or even that it is Medicare claims data; its relevance arises from SA Davis’s reliance on it to initiate an investigation that resulted in Petitioner’s subsequent charging, conviction, and court-imposed obligation to repay restitution to the Medicare program.  These facts tend to reinforce the likelihood of its veracity; if the data contained in IG Exhibit 5 did not accurately or completely reflect Medicare claims data, California would likely not have sought to prosecute Petitioner, and she would not have then decided – with the aid of competent counsel, who presumably reviewed the state’s discovery – to resolve the criminal charge against her by plea rather than trial.  I therefore find IG Exhibit 5 sufficiently reliable to warrant admission.

To the extent Petitioner objects to admission of these exhibits based on SA Davis’s ability to review or interpret this data, her opinion is relevant to the extent it is based on knowledge, skill, experience, training, or education.  Fed. R. Evid. 702.  SA Davis declared she has held her position with the IG’s Office of Investigations since September 2001 and that in the course of her duties she routinely researched and reviewed the type of data produced to her by Qlarant.  IG Ex. 4 at 1-2.  I find SA Davis’s experience over 20 years investigating these types of cases and reviewing the type of data at issue here sufficient to establish her credentials as an opinion witness.

Petitioner’s objections ultimately go to the weight I should give these exhibits, not their admissibility.  If Petitioner wished to contest the veracity or foundation of SA Davis’s statements, the authenticity of the claims data, or SA Davis’s capacity to interpret that data, she could have exercised her right to cross-examine SA Davis.  Summary Order at § 9; Civ. Remedies Div. P. § 16(b).  She did not do so.  If Petitioner wished to verify the completeness of the data SA Davis relied upon, she could have sought it out by means of a discovery request for documents from the IG or issuance of a subpoena to obtain that data from Qlarant directly.  See 42 C.F.R. §§ 1005.7(b), 1005.9(b).  She did not do so.  For these reasons, I overrule Petitioner’s objections and enter IG Exhibits 1 through 6 into the record.

Neither party requested a hearing.  IG Br. at 7; P. Br.  Accordingly, I decide this case on the briefs submitted and the exhibits of record.  Summary Order at 5; Civ. Remedies Div. P. § 19(d).

Page 5

III.      Issue

Whether the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for five years under 42 U.S.C. § 1320a-7(a)(1).  See 42 C.F.R. § 1001.2007(a)(1).

IV.      Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an administrative hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth at 42 C.F.R. §§ 1001.2007(a) and 1005.2.  The rights of both the sanctioned party and the IG to participate in a hearing are specified at 42 C.F.R. § 1005.3.

The Secretary must exclude from participation in federal health care programs “[a]ny individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII of this chapter or under any State health care program.”  42 U.S.C. § 1320a-7(a)(1); see also 42 C.F.R. § 1001.101(a).  An individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court, regardless of whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or nolo contendere (no contest) is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  42 U.S.C. § 1320a-7(i).  The statute does not distinguish between misdemeanor and felony convictions.  A party challenging exclusion may not collaterally attack the conviction that provides the basis for exclusion.  42 C.F.R. § 1001.2007(d).

Section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) provides that an exclusion imposed under section 1128(a) of the Act (42 U.S.C. § 1320a-7(a)) shall be for a minimum period of five years.  Exclusion is effective 20 days from the date of the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The IG may extend the period of exclusion by establishing the presence of specified aggravating factors.  42 C.F.R. § 1001.102(b).  Mitigating factors are considered as a basis for reducing the period of exclusion only where the IG applies aggravating factors to extend the period of exclusion beyond five years.  42 C.F.R. § 1001.102(c).

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors while the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b).

Page 6

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

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

1. Petitioner’s request for hearing was timely, and I have jurisdiction.

Petitioner timely requested a hearing.  I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

2. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act.

Exclusion from participation in Medicare, Medicaid, and all federal health care programs is mandated by section 1128(a)(1) of the Act where an individual has been convicted, under federal or state law, of a criminal offense related to the delivery of an item or service under Medicare or any state health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program.  42 U.S.C. § 1320a-7(a)(1); 42 C.F.R. § 1001.101(a).  The IG has established these elements by a preponderance of the evidence.

1. Relevant facts.

On January 9, 2023, the Medi-Cal Fraud & Elder Abuse Division of California’s Office of Attorney General filed an amended complaint in the Superior Court of California, County of Los Angeles (state court).  IG Ex. 2.  Count 4 of the complaint alleged that from February 5, 2019, to July 17, 2020, Petitioner and Victory Hospice conspired to “conceal and knowingly fail to disclose the occurrence of an event that affected a person’s initial and continued right and entitlement to an insurance benefit and payment, and the amount of any benefit and payment to which the person was entitled, in violation of Penal Code § 550(b)(3), a felony.”  Id. at 2.  The complaint identified that person as a “Patient” named “John S.”  Id.

On September 15, 2023, the state court permitted the prosecution to amend the complaint to charge Count 4 as a misdemeanor pursuant to California Penal Code § 17(b).  IG Ex. 3 at 1.  Petitioner pleaded nolo contendere to that count.  Id. at 2.  The state court accepted Petitioner’s plea and found her guilty.  Id.  It imposed a suspended sentence and placed Petitioner on summary probation for one year.  Id.  It also ordered her to serve one day in jail and pay $370 in fines and assessments to the court.  Id.  Finally, as restitution, the state court ordered Petitioner to pay $42,106.62 in victim restitution and $6,315.99 in investigative costs.  Id. at 2-3.

Page 7

On December 9, 2023, Petitioner’s attorney submitted copies of two checks to the IG’s Exclusions Branch to prove Petitioner made full restitution, one for $42,106.62 payable to CMS and another for $6,315.99 payable to the California Attorney General’s Division of Medi-Cal Fraud & Elder Abuse.  CMS Ex. 6 at 2.  Both checks referred to “People v. Maria Cristina Gotoc Joshi No. BA498401” in their memo lines.  Id.  The check to CMS also included the phrase “Restitution Payment” in the expense line, while the check to California’s Attorney General referenced “Investigative Costs” in the same line.  Id.

2. Petitioner was convicted of a criminal offense within the meaning of the Act.

Petitioner does not appear to contest the fact of her conviction.  P. Br. at 1; P. Req. for Hearing at 1.  It would be futile to do so.  The Act explicitly defines convictions for purposes of exclusion to include those based on acceptance by a federal, state, or local court of a plea of nolo contendere.  42 U.S.C. § 1320a-7(i)(3).  The state court’s minute order reflects Petitioner pleaded nolo contendere to a misdemeanor violation of section 550(b)(3) of California’s Penal Code, which it accepted to find her guilty.  IG Ex. 3 at 2.  Petitioner was therefore convicted within the meaning of the Act.

3. Petitioner’s criminal offense is related to the delivery of an item or service under the Medicare program.

Petitioner argues the IG has not established her criminal offense is related to the delivery of an item or service under Medicare or any state health care program.  P. Br. at 6-7.  She asserts the IG’s exhibits, even if deemed admissible, fail to demonstrate a connection between Petitioner’s misdemeanor conviction and the delivery of a healthcare item or service under Medicare or a state healthcare program.  Id.  With respect to IG Ex. 4, Petitioner claims SA Davis lacked personal knowledge of the underlying facts necessary to establish a connection between Petitioner’s conviction and the delivery of a healthcare item or service.  Id. at 6.  Petitioner also asserts that IG Exhibit 5, even if taken to be an accurate reflection of Qlarant’s record of Medicare claims data, fails to demonstrate a connection between those claims and any action Petitioner took that resulted in her conviction.  Id. at 6-7.

Petitioner’s claim that her offense of conviction is not “related to” the delivery of a healthcare item or service is unpersuasive because it is premised on a formalistic and narrow view of the evidence of record.  The term “related to” simply means there must be a nexus or common-sense connection between the offense of conviction and the delivery of a healthcare item or service; inquiry into that issue therefore requires a broad and expansive review of the record.  See Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “related 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

Page 8

marks omitted); see also Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998).  Contrary to Petitioner’s view, I need only find a common-sense connection between her conviction and the delivery of a health care item or service to Medicare or a state health care program.  There is sufficient evidence to do so here.

SA Davis’s declaration establishes:  that she requested and reviewed Medicare claims data pertaining to claims submitted by Victory Hospice for a specific Medicare beneficiary, “J.S.;” that she concluded Victory Hospice billed the Medicare program for services purportedly provided to “J.S.;” and that her investigation resulted in the filing of a criminal complaint against Petitioner by California’s Attorney General on January 10, 2023.  IG Ex. 4 at 1-2; IG Ex. 5 at 31-35 (reflecting what SA Davis identifies as Medicare claims made by Victory Hospice for services rendered between February and August 2019 that were paid by the Medicare program in June and July 2020).

IG Exhibit 2 establishes California state prosecutors accused Petitioner of conspiring to commit insurance fraud2 with Victory Hospice between February 2019 and July 2020 and identified an individual named “John S.” as the “Patient” affected by their criminal conduct.  IG Ex. 2 at 2.  IG Exhibit 3 establishes Petitioner pleaded nolo contendere to a misdemeanor version of that same offense, docketed as Case No. BA498401, and that as a result, the state court found her guilty and entered judgment of conviction against her.  IG Ex. 3 at 1-3.  It further establishes the state court ordered Petitioner to pay restitution of $42,106.62 to the victim of the crime and $6,315.99 in investigative costs.  Id. at 3.

Finally, IG Exhibit 6 establishes Petitioner’s attorney issued two checks on her behalf:  one for $42,106.62 payable to CMS that identified the payment as “Restitution Payment” and referring to “People v. Maria Cristina Gotoc Joshi No. BA498401” in the memo line; and another to the “DMFEA Department of Justice” for $6,315.99 with the same case caption identified in the memo line and identifying the payment as “Investigative Costs.”  IG Ex. 6 at 2.

The connection between these undisputed facts underlying Petitioner’s offense of conviction and the delivery of services to the Medicare program is difficult to miss.  SA Davis initiated an investigation based on data she requested pertaining to Medicare claims submitted by Victory Hospice on behalf of a beneficiary identified as “J.S.”  IG Ex. 4 at 1-2.  Petitioner pleaded nolo contendere to a charge of misdemeanor conspiracy to commit insurance fraud with Victory Hospice that identified a “John S.” as the “Patient” affected by her criminal conduct.  IG Ex. 2 at 2.  SA Davis requested data for services rendered by Victory for J.S. between February and August 2019 and paid for by the Medicare program in June and July 2020.  IG Ex. 5 at 31-35.  State prosecutors

Page 9

accused Petitioner of conspiring to commit insurance fraud with Victory Hospice between February 2019 and July 2020.  IG Ex. 2 at 2.  Finally, the state court ordered Petitioner to repay $42,106.62 to the victim of her crime; after the state court accepted her plea and entered judgment against her, her attorney issued a check to CMS for the exact same amount that identified the funds as “Restitution Payment” and referenced the case caption and docket number of the criminal charge to which she pleaded nolo contendere.  IG Ex. 3 at 1-3; IG Ex. 6 at 2.

These connections are more than sufficient to establish Petitioner’s offense of conviction – conspiring to commit insurance fraud – related to the submission of fraudulent claims to the Medicare program.  See Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (conviction for filing fraudulent claims to 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 exclusion because it was related to the filing of false Medicaid claims).  Indeed, Petitioner’s payment of restitution to CMS to resolve the criminal case against her almost conclusively establishes her offense related to the delivery of an item or service under a federal or state healthcare program.  Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994) (the payment of restitution to a covered healthcare program is evidence of a nexus between the offense and the delivery of items or services under that program).

In sum, the evidence of record establishes SA Davis requested Medicare claims data from a CMS contractor to initiate an investigation.  That investigation culminated in the filing of a criminal complaint against Petitioner by California’s Attorney General.  Petitioner resolved the charge against her by pleading nolo contendere to a misdemeanor version of the same offense and agreeing to pay restitution to the Medicare program.  These undisputed facts are sufficient for me to conclude Petitioner was convicted of a criminal offense related to the delivery of an item or service under Medicare requiring exclusion pursuant to 42 U.S.C. § 1320a-7(a)(1).

4. The IG was required to exclude Petitioner under the Act’s mandatory exclusion authority.

Petitioner argues the IG improperly excluded her under the Act’s mandatory exclusion authority because her case features no aggravating factors and the presence of mitigating circumstances, including her decades of service in the palliative care sector, which in her view should have prompted the IG to exercise her permissive exclusion authority under section 1128(b)(1)(A) of the Act.  P. Br. at 9-10; P. Req. for Hearing at 7-8.  

Petitioner’s argument is without merit.  It is true that some criminal offenses meet the criteria for exclusion under both the Act’s permissive and mandatory exclusion

Page 10

provisions.  But Petitioner mistakenly believes the IG has the discretion in that circumstance to choose which exclusion authority to apply.  In fact, the IG has no such discretion; instead, the Act obliges her to exclude an individual convicted of a crime subject to mandatory exclusion.  See Gregory J. Salko, M.D., DAB No. 2437 at 4 (2012) (quoting Timothy Wayne Hensley, DAB No. 2044 at 16 (2006) (“As the Board has observed, if an offense falls under the mandatory exclusion statute, ‘courts have repeatedly held that the I.G. is then required to impose a mandatory exclusion even if an individual’s conduct also falls within the scope of a permissive exclusion provision.’”)).

5. Petitioner must be excluded for a minimum of five years; the period of exclusion is therefore reasonable as a matter of law.

Because I have concluded the IG has established a basis to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(1), Petitioner must be excluded for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  Neither I nor the IG have the discretion to impose a lesser period of exclusion.

VI.      Conclusion

Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years pursuant to section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)), effective 20 days after April 30, 2024, the date the IG issued the notice of exclusion.