Tiffany Folkner, DAB CR6609 (2025)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Tiffany Folkner, from participation in Medicare, Medicaid, and all other federal health care programs based on her conviction of a criminal offense related to the delivery of a health care item or service under Medicare or a state health care program.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner based on her criminal conviction, as defined by 42 U.S.C. § 1320a-7(i), for Medicaid Fraud, with the victim being the Missouri Medicaid program.  An exclusion for the minimum period of five years is mandatory pursuant to section 1128(c)(3)(B) of the Social Security Act (“the Act”) (42 U.S.C. § 1320a-7(c)(3)(B)).  

I.    Background

In a letter dated September 30, 2024, the IG excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act, 42 U.S.C. § 1320a-7b(f), for a minimum period of five years, effective 20 days from the date of the letter.  IG Ex. 1 at 1.  The IG explained that Petitioner’s exclusion was based on her “conviction (as defined in section 1128(i) of the Act), in the 

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19th Judicial Circuit Court of Cole County, Missouri, 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 further explained that she had excluded Petitioner pursuant to section 1128(a)(1) of the Act, which mandates the exclusion of any individual who is 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.  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(a)(1).  The IG informed Petitioner that the exclusion was for “the minimum statutory period of 5 years.”  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(c)(3)(B).  

Petitioner filed a request for hearing on October 17, 2024, and on October 22, 2024, the Civil Remedies Division acknowledged receipt of the request for hearing, at which time it issued my standing pre-hearing order.  On November 7, 2024, pursuant to 42 C.F.R. § 1005.6, I presided over a telephonic pre-hearing conference, and that same day I issued an order summarizing the pre-hearing conference and setting the schedule for pre-hearing submissions.  

Pursuant to my orders, the IG filed a brief and five proposed exhibits (IG Exs. 1-5).  Petitioner, who is pro se, filed a brief (P. Br.) and one proposed exhibit (P. Ex. 1).  In the absence of any objections, I admit the parties’ exhibits into the record.  

Neither party submitted the written direct testimony of any witnesses.  See Pre-Hearing Order §§ 12, 14; see, e.g., Lena Lasher, DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, “no purpose would be served by holding an in-person hearing”), aff’d, Lasher v. Dep’t of Health & Human Servs., 369 F. Supp. 3d 243 (D.D.C. 2019).  Consequently, it is unnecessary to convene a hearing for the purpose of cross-examination of any witnesses.  See Pre-Hearing Order §§ 15, 16.  The record is closed, and the case is ready for a decision on the merits.  

II.  Issue

Whether there is a basis for exclusion.  42 C.F.R. § 1001.2007(a)(1)-(2).  

III.  Jurisdiction

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

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

1.    Petitioner has a conviction, as contemplated by section 1128(i) of the Act, for an offense that is related to the delivery of a health care item or service under a federal or state health care program, which is an offense, pursuant to section 1128(a)(1) of the Act, that subjects her to a mandatory exclusion from all federal health care programs for a minimum of five years.  

Section 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.  

See 42 U.S.C. § 1320a-7(a)(1).  Further, section 1128(i) of the Act states that an individual is “convicted” of a criminal offense for the purpose of an exclusion, when, as relevant here, a judgment of conviction has been entered by a federal, state or local court or a plea of guilty has been accepted by such a court.  42 U.S.C. § 1320a-7(i)(1), (3).  

The IG argues that she properly excluded Petitioner from all federal health care programs based on Petitioner’s conviction for an offense that was related to the delivery of a health care item or service under Medicare or a state health care program.  IG Br. at 1-4.  I find that Petitioner was convicted of a criminal offense that, for purposes of the Act, mandates exclusion from all federal health care programs.

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On or about February 27, 2023, a grand jury in the Circuit Court of Cole County, Missouri, returned a four-count true bill of indictment charging, inter alia, that Petitioner committed the Class D felony offense of Medicaid fraud, in violation of section 191.905.1 of the Revised Statutes of Missouri (RSMo).  IG Ex. 2 at 1.  With respect to Count One, the indictment charged that Petitioner, as a health care provider, made false representations of material fact that were the basis for billing the Missouri Medicaid Program on seven occasions between December 2019 and February 2020.  IG Ex. 2 at 1.  

On December 12, 2023, Petitioner, with the benefit of counsel and pursuant to a plea agreement, entered a guilty plea to Count One of the indictment.  IG Ex. 3 at 1; see IG Ex. 4 at 1 (addressing the disposition of each of the four counts of the indictment); P. Br. at 2 (addressing that Petitioner “took” a “deal”).  The Court found that the guilty plea had been “freely and voluntarily entered with the understanding of the nature of the charge, range of punishment and consequences thereof.”  IG Ex. 3 at 1.  The Court also “[found] a factual basis for the plea and that [Petitioner] is guilty beyond a reasonable doubt as charged.”  IG Ex. 3 at 1.  The Court suspended the imposition of a sentence, and ordered a five-year term of supervised probation and the payment of $10,428.74 in restitution.  IG Ex. 5 at 1.  Approximately one year later, on December 19, 2024, the Court ordered that Petitioner be discharged from probation.  P. Ex. 1 at 2.  

Petitioner limits her arguments to the question of whether she has a criminal conviction pursuant to section 1128(i) of the Act, and she does not dispute the IG’s determination that the offense otherwise warrants exclusion pursuant to section 1128(a)(1) of the Act.  P. Br.  Because Petitioner has not disputed the IG’s determination that the offense of Medicaid fraud is related to her delivery of any item or service under the Medicare or a state health care program, she has conceded that an exclusion would be warranted pursuant to 1128(a)(1) of the Act if she has a conviction for that offense.  See IG Ex. 2 at 1 (charging that Petitioner made false representations of material fact that were the basis for her conviction for Medicaid fraud in connection with her work as a health care provider).  

Petitioner argues that because the sentencing judge suspended the imposition of a sentence, she was not convicted under state law.3   P. Br. at 2.  To the extent Petitioner claims that she does not have a conviction under state law, the lack of a conviction under state law is not dispositive of whether she has a conviction for purposes of an IG exclusion.  As relevant here, pursuant to section 1128(i)(3) of the Act, an individual has a 

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conviction when a court has accepted a guilty plea.4   The state court unquestionably accepted Petitioner’s guilty plea.  IG Ex. 3 at 1 (“[The] Court finds that [Petitioner’s] plea of guilty has been freely and voluntarily entered with the understanding of the nature of the charge, range of punishment and consequences thereof.”).  

There is no merit to Petitioner’s claim that she was not convicted for purposes of an IG exclusion.  Petitioner has not submitted any evidence that the court did not accept her guilty plea, such as a sentencing hearing transcript, a condition in the plea agreement, or a provision in the sentencing order.  To the contrary, it is clear that the court’s sentence of Petitioner to five years of supervised probation and restitution in excess of $10,000 was based on the acceptance of her guilty plea.  IG Exs. 3 at 1; 4 at 1; see RSMo § 559.105(1) (“Any person who has been found guilty or who has pled guilty to an offense may be ordered by the court to make restitution to the victim for the victim’s losses due to such offense.”).  And to the extent Petitioner claims that the Court terminated her probation after one year, I note that, based on RSMo § 559.105(2), “No person ordered by the court to pay restitution pursuant to this section shall be released from probation until such restitution is complete.”  While the court suspended the imposition of a sentence, it imposed both restitution and supervised probation based on her guilty plea.  See Stuart Alan Rockwell, D.D.S., DAB No. 3022 at 8 (2020) (upholding ALJ determination that a court had accepted a guilty plea, quoting the ALJ’s rationale that “[i]t is simply illogical that the District Judge would ‘sentence’ [the petitioner] to pay restitution and impose a ‘mandatory’ fine and other costs, even though the District Judge, according to [the petitioner], did not accept [the petitioner’s] guilty plea.”).  The evidence demonstrates that although the court suspended the imposition of a sentence, it accepted her guilty plea.  IG Exs. 3, 4.  Therefore, Petitioner has a conviction, as contemplated by section 1128(i)(3) of the Act, for purposes of an exclusion.  42 U.S.C. § 1320a-7(i)(3).  

The courts may seek to further rehabilitative goals, but the IG seeks to protect federal funds and Medicare beneficiaries.  See Henry L. Gupton, DAB No. 2058 at 7 (2007) (explaining that the goals of criminal law “generally involve punishment and rehabilitation by the offender, possibly deterrence of future misconduct . . . and various public policy goals,” whereas exclusions “are civil sanctions, designed to protect beneficiaries of health care programs and the federal fisc”), aff’d, Henry L. Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).  Congress, through enactment of the Act, determined that an individual who has been convicted of a criminal offense related to 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 administrative law judge the discretion to impose an exclusion of a 

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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 “[f]ind invalid or refuse to follow Federal statutes or regulations.”  42 C.F.R. § 1005.4(c)(1).  An exclusion for a minimum period of five years is mandated pursuant to 42 U.S.C. §§ 1320a-7(a)(1), 7(c)(3)(B).  Congress contemplated that an individual such as Petitioner who was convicted of Medicaid fraud in connection with her employment as a health care provider would be excluded from federal programs for no less than five years, and Petitioner has not identified any error in the IG’s imposition of a five-year exclusion pursuant to 42 U.S.C. §§ 1320a-7(a)(1), 7(c)(3)(B).  

2.    The effective date of Petitioner’s exclusion is October 20, 2024.  

The effective date of the exclusion, October 20, 2024, is 20 days after the date of the IG’s September 30, 2024 letter and is established by regulation (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, I affirm the IG’s decision to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of five years, effective October 20, 2024.