Tristen Rutledge-McCohn, DAB CR6767 (2025)

DECISION

Respondent, the Acting Inspector General for the United States Department of Health and Human Services (the IG), excluded Petitioner, Tristen Rutledge-McCohn, from participation in Medicare, Medicaid, and all other federal health care programs for five years based on his conviction for a criminal offense related to the delivery of an item or service under a state health care program.  Petitioner challenges the IG’s exclusion action.  For the reasons stated below, I affirm the IG’s exclusion determination. 

I. Procedural History

On December 31, 2024, the IG notified Petitioner she would exclude him from participation in Medicare, Medicaid, and all federal health programs under section 1128(a)(1) of the Act (42 U.S.C. § 1320a-7(a)(1)) for at least five years.  IG Ex. 1 at 1. The IG explained she took this action based on Petitioner’s conviction in the Franklin County, Ohio Court of Common Pleas (state court) for a criminal offense related to the delivery of an item or service under the 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. 

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Petitioner timely sought review by an administrative law judge (ALJ) in the Civil Remedies Division, resulting in my designation to hear and decide this case.  I held a pre-hearing conference by telephone with the parties on March 18, 2025, the substance of which is summarized in my March 19, 2025 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  See 42 C.F.R. § 1005.6. 

I directed the parties to file pre-hearing briefs and identify witnesses and exhibits in support of their arguments.  Summary Order at 4-5. 

The IG filed a brief (IG Br.) and four proposed exhibits (IG Exs. 1-4).  Petitioner filed a brief (P. Br.) with no proposed exhibits.  Petitioner identified himself as a witness but did not provide his written direct testimony as required by my Summary Order.  Summary Order at 4.  The IG filed a reply brief (IG Reply).  After I afforded him the opportunity to do so, Petitioner filed an affidavit containing his direct testimony (P. Ex. 1).1   The IG filed a statement indicating she did not wish to cross-examine Petitioner (IG Notice). 

II. Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  I therefore enter IG Exhibits 1 through 4 and P. Exhibit 1 into the record.  Petitioner identified himself as a witness and submitted his direct written testimony.  P. Ex. 1.  However, the IG has declined the opportunity to cross-examine him.  IG Notice.  Accordingly, I decide this case on the briefs submitted and the exhibits of record.  Civ. Remedies Div. P. § 19(d); Standing Order at 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. Jurisdiction

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

V. 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

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and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in 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 by 42 C.F.R. § 1005.3. 

The Act requires the Secretary to 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.”  Act § 1128(a)(1) (42 U.S.C. § 1320a-7(a)(1)); see also 42 C.F.R. § 1001.101(a). 

The Act defines an individual to be 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 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 is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  Act § 1128(i) (42 U.S.C. § 1320a-7(i)); 42 C.F.R. § 1001.2.  Exclusion under this provision of the Act is mandatory and does not distinguish between misdemeanor and felony convictions.  Act § 1128(a)(1) (42 U.S.C. § 1320a-7(a)(1)).  Excluded parties seeking to challenge their exclusion may not collaterally attack the conviction upon which exclusion is based.  42 C.F.R. § 1001.2007(d). 

For exclusions imposed under section 1128(a) of the Act, section 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)) mandates a minimum five-year period of exclusion.  Exclusion is effective 20 days from the date the IG issues the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The IG may elect to extend the period of exclusion based on the presence of certain aggravating factors.  42 C.F.R. § 1001.102(b).  If the IG has applied aggravating factors to increase the exclusion period beyond five years, she must consider the mitigating factors identified by the regulations as a basis for reducing the period of exclusion.  42 C.F.R. § 1001.102(c).  The IG’s determination of the length of exclusion enjoys deference only if it is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii). 

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). 

VI. 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. 

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A. The IG has established a basis to exclude Petitioner pursuant to section 1128(a)(1) of the Act. 

Section 1128(a)(1) of the Act mandates exclusion from participation in Medicare, Medicaid, and all federal health care programs 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.  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 June 20, 2023, a grand jury seated in Franklin County, Ohio charged Petitioner with one count of Medicaid Fraud, in violation of Ohio Rev. Code § 2913.40(B) and 2913.40(E).  IG Ex. 2 at 1.  The grand jury accused Petitioner of “knowingly [making] or [causing] to be made a false or misleading statement or representation for use obtaining reimbursement from the [M]edicaid program” from approximately July 16, 2021 to October 13, 2021.  Id.  The grand jury also charged Petitioner with one count of Theft in violation of Ohio Rev. Code § 2913.02(A)(3) and 2913.02(B)(2), asserting he deprived the Ohio Department of Medicaid of property and services by engaging in a continuing course of criminal conduct for the same period of time.  Id.  

On April 22, 2024, Petitioner executed a written agreement with the state pleading guilty to the first count, which the state amended to a misdemeanor offense of Possessing Criminal Tools, in violation of Ohio Rev. Code § 2923.24(A).  IG Ex. 3 at 1.  That same day, the state court accepted Petitioner’s guilty plea and entered judgment against him.  IG Ex. 4 at 1.  It ordered Petitioner to pay $2,391.14 in restitution to the Ohio Department of Medicaid.  Id.  

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

Petitioner concedes his conviction of a criminal offense, as defined by the Act.  P. Br. at 1.  The evidence of record confirms Petitioner executed a plea agreement with Ohio state prosecutors to resolve the criminal charges against him and that the state court accepted Petitioner’s guilty plea and entered judgment against him.  IG Exs. 3, 4.  The IG has established Petitioner was convicted of a criminal offense within the meaning of the Act.  Act § 1128(i)(1) (42 U.S.C. § 1320a-7(i)(1)); 42 C.F.R. § 1001.2. 

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3. Petitioner’s criminal offense is related to the delivery of an item or service under Medicare or a state health care program within the meaning of section 1128(a)(1) of the Act. 

The Act requires exclusion from participation in federal programs for convictions related to the delivery of an item or service under Medicare or a state health care program.  See 42 U.S.C. § 1320a-7(a)(1).  The term “related to” means there must be a nexus or common-sense connection.  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 marks omitted); see also Quayum v. U.S. Dep’t of Health and Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998). 

Petitioner contends his criminal offense did not relate to the delivery of a healthcare service under the Ohio Medicaid program.  P. Br. at 3-5.  He asserts his plea of guilty to a misdemeanor charge of possessing criminal tools cannot reasonably be seen to relate to the delivery of an item or service in healthcare.  Id. at 4 (citing Ohio Rev. Code § 2923.24, which defines criminal tools to mean dangerous ordinance or the materials for making such ordinance, a device specially adapted or designed for criminal use, or a device commonly used for criminal purposes).  Petitioner claims the record of the underlying criminal proceeding contains no findings of fact that demonstrate a relation between his offense of conviction and theft or fraud against the Medicaid program.  Id.  And while he acknowledges the impropriety of collaterally attacking his offense of conviction, Petitioner argues his affidavit is sufficient to rebut or at least neutralize the allegations against him found in the record that do pertain to the delivery of a healthcare item or service to the Medicaid program.  Id. at 5. 

Petitioner’s arguments are unpersuasive.  His claim that his offense of conviction cannot relate to the delivery of a healthcare item or service because such delivery was not an element of the charge to which he pleaded is without merit.  Summit S. Shah, M.D., DAB No. 2836 at 7 (2017) (observing the Board “has long held, however, that an ALJ is free to look beyond the narrow constructs of a state’s criminal statutes.”); Berton Siegel, D.O., DAB No. 1467 at 4 (1994) (“[i]t is not the labeling of the offense under the state statute which determines whether the offense is program-related”).  

Dr. Shah similarly argued the IG could not establish relatedness because the evidence establishing his offense of conviction contained no facts relating it to the delivery of an item or service to the Medicare or Medicaid programs.  Id. at 6.  The Board rejected this argument, holding that even where the facts established by the plea colloquy fail to create an explicit link between a petitioner’s criminal conduct and delivery of an item or service in healthcare to the Medicaid program, it is appropriate to consider extrinsic evidence

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beyond the findings which form the basis of a criminal court’s imposition of judgment.  Id. at 8. 

Here, Petitioner correctly observes the charge to which he pleaded, a misdemeanor charge of possessing criminal tools, bears no discernable relationship to the delivery of an item or service in healthcare.2   P. Br. at 3-4.  But he incorrectly concludes there are no facts in the record to establish the relatedness of such delivery to his offense of conviction. 

First, there is no dispute a grand jury charged Petitioner with Medicaid Fraud and Theft from the Medicaid program, criminal offenses that on their face relate to the delivery of a healthcare item or service.  IG Ex. 2 at 1.  There is equally no dispute Petitioner resolved those criminal charges against him by pleading guilty to an amended count of the same indictment in the same criminal case.  IG Ex. 3 at 1.  It is an exercise in formalism to argue there is no relation between the grand jury’s initial charges and the plea agreement Petitioner made to resolve those charges. 

For this reason, I reject as incredible Petitioner’s sworn assertion that he understood his plea to have no relation to the Ohio Medicaid program because the charge to which he pleaded appeared unrelated to the initial charges against him.  See P. Ex. 1.  It will remain a mystery, at least in these proceedings, why state prosecutors opted to amend the Medicaid Fraud charge to Possessing Criminal Tools rather than a misdemeanor version of a fraud or theft offense.  But there is no dispute Petitioner opted to plead guilty to this lesser offense to resolve the original charges against him.  His plea establishes relatedness between those initial charges, which plainly describe a criminal offense involving the delivery of a healthcare item or service to the Ohio Medicaid program, and his offense of conviction.  This is all the Act requires.  

Second, even if I blinkered myself to the fact that Petitioner’s plea resulted in the amendment or dismissal of the initial charges against him, he cannot explain away the fact that the state court’s entry of judgment against him for the offense of Possessing Criminal Tools included an order to pay $2,391.14 in restitution to the Ohio Medicaid program.  IG Ex. 4 at 1.  The state court’s identification of the Ohio Medicaid program as the victim of Petitioner’s criminal offense, to whom he owed restitution, is compelling

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evidence of the relatedness of his offense to the delivery of an item or service in healthcare.  Shah, DAB No. 2836 at 8-9, quoting Siegel, DAB No. 1467 at 6-7 (“[A] criminal offense resulting in financial loss to a State Medicaid program is ‘related to’ the delivery of items or services under that Medicaid program because it results ‘in less funds being available to pay for covered services’ delivered to Medicaid patients.”). 

In sum, a grand jury charged Petitioner with offenses that plainly related to the delivery of items or services to the Ohio Medicaid program.  IG Ex. 2.  To resolve those charges against him, Petitioner pleaded to a lesser seemingly unrelated offense.  IG Ex. 3.  In accepting Petitioner’s plea to that lesser charge, the state court ordered him to pay restitution to the Medicaid program, the victim of the offenses described in the initial indictment against him.  IG Ex. 4.  Taken together, these facts establish beyond a preponderance of the evidence that Petitioner was convicted of a criminal offense related to the delivery of an item or service in healthcare to the Ohio Medicaid program. 

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

Petitioner next argues the IG improperly applied the mandatory exclusion authority under section 1128(a)(1) of the Act because he was convicted of a misdemeanor offense, which in his view triggered the IG’s permissive exclusion authority under section 1128(b)(1)(A) of the Act.  P. Br. at 5-6.  Petitioner contends that where both the mandatory and permissive exclusion authorities could apply, principles of due process preclude the IG from arbitrarily applying the more severe authority without explanation.  Id. at 6. 

This argument is without merit.  As the IG correctly observed, section 1128(a)(1) of the Act does not distinguish between misdemeanor and felony offenses.  IG Reply at 2.  The Act mandates exclusion if an individual is convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  42 U.S.C. § 1320a-7(a)(1).  The IG has established these elements here, meaning Petitioner must be excluded under the Act’s mandatory exclusion authority.  

Where a criminal offense meets the elements of the Act’s permissive and mandatory exclusion authorities, the IG has no discretion to determine which exclusion authority to apply, as Petitioner suggests.  Instead, the IG must impose exclusion under section 1128(a)(1)’s mandatory exclusion authority.  See Gregory J. Salko, M.D., DAB No. 2437 at 4 (2012), quoting Timothy Wayne Hensley, DAB No. 2044 (2006) (“[I]f 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.’”).  Petitioner’s misdemeanor conviction does not preclude mandatory exclusion under section 1128(a)(1) of the Act.  The fact that the IG may have been able to otherwise exclude Petitioner under the Act’s permissive authority is irrelevant.  Because Petitioner’s offense of conviction met the

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elements for mandatory exclusion under section 1128(a)(1) of the Act, the IG was obliged to exclude him under that provision and had no discretion to do otherwise. 

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

For the foregoing reasons, I conclude a basis exists to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(1).  Under that provision of the Act, 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. 

VII. Conclusion

For the foregoing reasons, I conclude the IG had a basis to exclude Petitioner 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)).