Dorreetha Irby, DAB CR6718 (2025)

DECISION

Petitioner Irby owned a company that provided home health aide services.  She falsified timesheets and billed the Medicaid program for services that were not provided.  She was caught, charged with one count of Medicaid fraud and one count of forgery, both felonies.  Following a bench trial, she was convicted on both counts.

Based on her conviction, the Inspector General (IG) has excluded Petitioner from participating in Medicare, Medicaid, and all federal health care programs for a minimum period of five years, 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 Petitioner Irby.  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 November 29, 2024, the IG notified Petitioner that she was excluded from participating in 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 at 1.

Petitioner timely requested review, and the matter is before me.

The IG submitted a written argument (IG Br.) and seven exhibits (IG Exs. 1-7).  Petitioner submitted her own written argument (P. Br.) with two exhibits (P. Exs. 1-2).

In the absence of any objections, I admit into evidence IG Exs. 1-7.

Petitioner’s submissions consist of a written brief, submitted to an appellate court, attacking her conviction (P. Ex. 1) and text messages that purportedly show that she was, in fact, providing the services for which she billed the Medicaid program (P. Ex. 2).  These documents are submitted to show that Petitioner should not have been convicted.  As I explain below, the regulations governing these proceedings preclude such a collateral attack on an underlying conviction.  The proffered exhibits are irrelevant, and I decline to admit them.  42 C.F.R. § 1005.17(c) (“The ALJ must exclude irrelevant or immaterial evidence.”).

Hearing on the written record.  The IG indicates that an in-person hearing is not necessary.  IG Br. at 6.  The IG proposes no witnesses.

Petitioner, however, claims that an in-person hearing is necessary and lists three potential witnesses who will “testify about the text messages they exchanged with one another” and “explain how these communications demonstrated, and reasonably led Petitioner to believe, that the billing . . . was correct.”  P. Br. at 3-4.  For two reasons, these witnesses would not be allowed to testify.  First, contrary to my initial order and Civil Remedies Division Procedures (CRDP), Petitioner did not provide copies of the witnesses’ testimony in the form of affidavits or written declarations.  Order and Schedule for Filing Briefs and Documentary Evidence at 3-4 (¶ 7) (March 26, 2025) (“The parties must submit witness testimony in the form of an affidavit or written sworn declaration.”); CRDP at 16 (¶ 16a) (“If the ALJ directed each party to file written direct testimony of its proposed witnesses, the witness list should identify which proposed exhibit contains the written direct testimony of each proposed witness.”); 42 C.F.R. § 1005.16(b) (authorizing the ALJ to direct that testimony be admitted in the form of a written statement); Ilya Kogan, DAB No. 3034 at 3-4 (2021); James Brian Joyner, M.D., DAB No. 2902 at 11-12 (2018).

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Second, as with Petitioner’s exhibits, the witnesses are proffered to attack collaterally Petitioner’s conviction.  Their testimony would therefore be irrelevant and should not be admitted.  42 C.F.R. § 1005.17(c).

Because there are no witnesses to be examined or cross-examined, an in-person hearing would serve no purpose, and this case may be decided based on the written record.  I therefore close the record and issue this decision based on the parties’ submissions.

Discussion

1. Petitioner must be excluded from program participation for a minimum of five years because she was convicted of a criminal offense related to the delivery of an item or service under a state health care program.  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).

Petitioner owned Loving Hearts, a company that provided home health aide services.  IG Ex. 6 at 1.  One of its clients was a Medicaid beneficiary whose mother provided home health services through an arrangement with Loving Hearts.  Id.  However, Petitioner rejected the single time sheet that the beneficiary’s mother submitted.  Id.  The mother was the only individual who provided services to the beneficiary.  IG Ex. 6 at 1; IG Ex. 7 at 2.  Nevertheless, working with a third-party billing company, Loving Hearts submitted timesheets showing that Petitioner and her brother provided care, which they did not provide.  IG Ex. 6.  Loving Hearts also submitted timesheets claiming that Petitioner’s brother provided the beneficiary with transportation services, which no one provided.  Id. at 1.

In a criminal complaint, Petitioner Irby was charged with one count of Medicaid fraud, in violation of Ohio Rev. Code § 2913.40(B), (E) and one count of forgery, in violation of Ohio Rev. Code § 2913.31(A)(1)-(3), (C)(1)(b).  IG Ex. 3.

On May 23, 2024, following a bench trial, the criminal court convicted Petitioner on both counts.  IG Ex. 5.  The court imposed five years of community control, placed her on non-reporting supervision, and ordered her to pay $13,261.06 in restitution to the Ohio Department of Medicaid.  IG Ex. 4 at 1-2.  Petitioner’s convictions for Medicaid fraud and forgery of timesheets submitted for Medicaid reimbursement are obviously related to the delivery of services under a state health care program.

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Petitioner has not challenged any of this but argues that she “reasonably believed that the submitted billing was accurate” and declares it “patently unfair” to exclude her “based on a conviction [that] was obtained solely and exclusively due to her trial counsel’s oversight concerning the admission of exculpatory evidence.”  P. Br. at 4.

Having been convicted, Petitioner may not use this forum to argue that she was not, in fact, guilty of any crime.  The regulations preclude such a collateral attack on an underlying conviction:

When the exclusion is based on the existence of a criminal conviction . . . or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction . . . is not reviewable[,] and the individual or entity may not collaterally attack it[,] either on substantive or procedural grounds[,] in this appeal.

42 C.F.R. § 1001.2007(d); Yolanda Hamilton, M.D., DAB No. 3061 at 9-10 (2022); Funmilola Mary Taiwo, DAB No. 2995 at 8 (2020); Delores L. Knight, DAB No. 2945 at 9 (2019); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).

Nor does it matter that Petitioner has appealed her conviction.  The Act mandates her exclusion when a conviction has been entered against her “regardless of whether there is an appeal pending . . . .”  Act § 1128(i)(1).

By statute and regulation, 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.