Kristen Mews, DAB CR6797 (2025)

DECISION

Petitioner, Kristen Mews, was a professional counselor, licensed in the State of Texas.  She provided psychotherapy services to Medicaid beneficiaries.  For more than four years, she billed the Medicaid program for services that she did not provide.  She was caught, charged with Medicaid fraud, and pleaded guilty to one felony count of health care fraud.

Based on her conviction, the Inspector General (IG) has excluded Petitioner from participating in Medicare, Medicaid, and all federal health care programs for a period of 12 years, as authorized by section 1128(a)(1) of the Social Security Act (Act).  Petitioner appeals.  

For the reasons discussed below, I find that the IG properly excluded Petitioner Mews and that the length of her exclusion is reasonable. 

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Background

In a letter dated April 30, 2025, the IG notified Petitioner that she was excluded from participating in all federal health care programs for a period of 12 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. 

Following a prehearing conference, I issued an order, dated September 11, 2025, directing the parties to submit briefs and documentary evidence.  Order and Schedule for Filing Briefs and Documentary Evidence (E-file # 5).  Pursuant to my order, on October 23, 2025, the IG submitted her prehearing exchange – a written brief (IG Br.) and five exhibits (IG Exs. 1-5). 

Petitioner did not submit a prehearing exchange, as ordered.  Nevertheless, she has not indicated that she has abandoned her appeal.  I therefore decide this case based on the record before me.  Because neither party proposes any witnesses, an in-person hearing would serve no purpose.  I therefore close the record and issue this decision based on the parties’ written submissions.  Order and Schedule for Filing Briefs and Documentary Evidence at 4 (¶ 7).  See Anil Hanuman, DAB No. 3080 at 11-12 (2022); Emery Cnty. Care & Rehab. Ctr., DAB No. 3006 at 5-8 (2020); James Brian Joyner, M.D., DAB No. 2902 at 12 (2018); see CRD Procedures ¶ 16(b). 

In the absence of any objections, I admit into evidence IG Exs. 1-5. 

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). 

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Petitioner was a licensed professional counselor who provided psychotherapy counseling sessions.  She participated in the Texas Medicaid program as a provider of services.  IG Ex. 3 at 1.  From March 2014 through August 2018, she repeatedly billed the Medicaid program for counseling services that she did not provide.  IG Ex. 3 at 4. 

In a criminal complaint, filed July 12, 2023, Petitioner Mews was charged with two felony counts of health care fraud, in violation of 18 U.S.C. § 1347(a).  IG Ex. 3. 

On March 21, 2024, Petitioner agreed to plead guilty to one count of health care fraud.  She conceded that, from March 2014 through August 2018, she billed the Medicaid program for services that she did not provide and was paid $462,853.61 in fraudulently-obtained Medicaid funds.  IG Ex. 4 at 3. 

On October 1, 2024, the Federal District Court accepted her plea and found her guilty of health care fraud.  IG Ex. 2 at 1.  The court sentenced her to 20 months in prison, followed by three years of supervised release.  IG Ex. 2 at 2-3.  The court also ordered her to pay $462,853.61 in restitution to the Texas Health and Human Services Commission OIG.  IG Ex. 2 at 6. 

Petitioner’s conviction for Medicaid fraud is thus obviously related to the delivery of services under a state health care program. 

2. Based on the aggravating factors present in this case, and no mitigating factor, the 12-year exclusion falls within a reasonable range. 

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).  I now consider whether the length of Petitioner’s exclusion, beyond five years, falls within a reasonable range. 

Among the factors that may serve as a basis for lengthening the period of exclusion are the three that the IG relies on in this case:  1) the acts resulting in the conviction, or similar acts, caused a government program or another entity financial losses of $50,000 or more; 2) the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more; and 3) the sentence imposed by the court included incarceration.  42 C.F.R. § 1001.102(b). 

The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion.  “[S]imply meeting the threshold for an aggravating factor is a clear indication of untrustworthiness.”  Hussein Awada, M.D., DAB No. 2788 at 10 (2017); see also Mrugeshkumar Shah, M.D., DAB No. 3079 at 10 (2022). 

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Program financial loss (42 C.F.R. § 1001.102(b)(1)).  In her plea agreement, Petitioner admitted that her fraudulent billing cost the Medicaid program $462,853.61, and the sentencing court ordered her to pay that amount in restitution to the Texas Health and Human Services Commission Office of Inspector General, the state entity that investigates fraud in the delivery of health services, including Medicaid.  IG Ex. 2 at 6; see https://oig.hhs.texas.gov/about-us.  Restitution has long been considered a reasonable measure of losses.  Awada, DAB No. 2788 at 7; Farzana Begum, M.D., DAB No. 2726 at 16 n.8 (2016), aff’d, Begum v. Hargan, No. 16 CV 9624, 2017 WL 5624388 (N.D. Ill. Nov. 21, 2017); Juan de Leon, Jr., DAB No. 2533 at 5 (2013); Craig Richard Wilder, DAB No. 2416 at 9 (2011). 

As I have explained in other cases, an exclusion is designed to protect program integrity and program beneficiaries: 

[T]he regulation recognizes [that] the amount of program losses reflects, in part, the seriousness of the individual’s crime and thus the level of threat he poses to program integrity.  While the process is inexact, so long as the IG reasonably translates the aggravating factor into an increase in the period of exclusion, I must affirm [the] determination.  That a corrupt practitioner and the schemes in which he participates can cause health care programs substantial losses underscores the importance of excluding the unscrupulous.  Over time, health care programs simply cannot withstand these losses. 

Steven C. Adamczyk, DO, DAB CR6285 at 5-6 (2023) (quoting Brandon Michael Coburn, DAB CR5247 at 4 (2019)).  

Financial losses of even one dollar over the $50,000 threshold justify extending the length of the period of exclusion.  Edwin L. Fuentes, DAB No. 2988 at 13 (2020).  Here, $462,853.61 represents an enormous loss – more than nine times the threshold amount.  Such losses, by themselves, justify increasing the period of exclusion well beyond the five-year minimum.  See Shaun Thaxter, DAB No. 3053 at 31-32 (2021); Robert Kolbusz, M.D., DAB No. 2759 at 6-7 (2017); Jeremy Robinson, DAB No. 1905 (2004); Donald A. Burstein, PhD., DAB No. 1865 (2003). 

Duration of criminal conduct (42 C.F.R. § 1001.102(b)(2)).  We consider the length of Petitioner’s participation in the criminal scheme in order to distinguish the individual whose lapse in integrity is short-lived from those who display a lack of integrity over a longer period of time.  “Participation in, or even knowing but silent acquiescence in, a continuing fraudulent scheme that could be expected to cause repeated misrepresentations and repeated harm over a period of time evidences a continuing lack of integrity.”  Burstein, DAB No. 1865 at 8.  

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Here, Petitioner’s illegal activity began in March 2014 and continued through August 2018, more than four years later, which justifies significantly increasing the period of her exclusion.  IG Ex. 4 at 3.  

Incarceration (42 C.F.R. § 1001.102(b)(5)).  The court sentenced Petitioner to 20 months (1 year and 8 months) in prison, which is a substantial period of incarceration.  IG Ex. 2 at 2-3.  While any period of incarceration justifies increasing the period of exclusion, the Board has repeatedly held that longer periods of incarceration are relevant in determining whether a period of exclusion is reasonable.  Eugene Goldman, M.D., DAB No. 2635 at 6 (2015).  Generally, the longer the jail time, the longer the exclusion, because a lengthy sentence evidences a more serious offense.  See Jeremy Robinson, DAB No. 1905 at 6 (characterizing a nine-month incarceration as “relatively substantial.”); Jason Hollady, M.D., DAB No. 1855 at 12 (2002); Stacy Ann Battle, D.D.S., DAB No. 1843 (2002) (finding that four months in a halfway house, followed by four months home confinement justifies lengthening the period of exclusion). 

I thus find that the aggravating factors in this case definitively establish that Petitioner is untrustworthy and more than justify a substantial increase in the length of her exclusion beyond the five-year minimum. 

No mitigating factor.  The regulations consider mitigating just three factors:  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 the petitioner had a mental, physical, or emotional condition that reduced her culpability; and 3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed.  42 C.F.R. § 1001.102(c).  Characterizing the mitigating factor as “in the nature of an affirmative defense,” the Board has ruled that Petitioner has the burden of proving any mitigating factor by a preponderance of the evidence.  Barry D. Garfinkel, M.D., DAB No. 1572 at 8 (1996). 

No mitigating factors offset the significant aggravating factors present in this case.  Petitioner was convicted of a felony; the program’s financial loss was significantly more than $5,000.  No evidence suggests that Petitioner had a mental, physical, or emotional condition that reduced her culpability.  She has not claimed that her cooperation with federal officials, if any, resulted in others being investigated, convicted, or excluded. 

Petitioner asserts that her period of exclusion should nevertheless be reduced or eliminated because she “already served 5 years of exclusion from 2018-2024.”  Hearing Request (E-file #1).  Presumably, this would have encompassed the time of the criminal

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investigation and court proceedings.2   As a matter of law, an exclusion becomes effective 20 days after the IG’s notice of exclusion, in this case, April 30, 2025.  42 C.F.R. § 1001.2002; see Act § 1128(c)(1) (providing that an exclusion becomes effective “at such time and upon such reasonable notice to the public and to the individual or entity excluded as may be specified in regulations . . . .”).  I have no authority to review the timing of the IG’s determination to impose an exclusion nor to alter retroactively its effective date.  Anthony Joseph Moschetto, D.O., DAB No. 3030 at 12-13 (2021); Robert Kolbusz, M.D., DAB No. 2759 at 12 (2017); Sushil Aniruddh Sheth, M.D., DAB No. 2491 at 19 (2012). 

Based on the three aggravating factors and the absence of any mitigating factor, I must determine whether the exclusion period imposed by the IG falls within a reasonable range.  So long as that period falls within a reasonable range, my role is not to second-guess the IG’s judgment.  Jeremy Robinson, DAB No. 1905 at 5 (ruling that ALJ review must reflect the deference accorded to the IG by the Secretary). 

A “‘reasonable range’ refers to a range of exclusion periods that is more limited than the full range authorized by the statute [i.e. from a minimum of five years to a maximum of permanent] and that is tied to the circumstances of the individual case.”  Joseph M. Rukse, Jr., R.Ph., DAB No. 1851 at 11 (2002) (citing Gary Alan Katz, R.Ph., DAB No.1842 at 8 n.4 (2002)).  The goal here is to protect federal health care programs and beneficiaries from potential harm.  Joann Fletcher Cash, DAB No. 1725 (2000). 

The underlying facts here more than justify a 12-year exclusion.  For more than four years, Petitioner billed the Medicaid program for services she did not provide.  Her illegal conduct caused the Medicaid program considerable financial losses – $462,853.61. Her conduct warranted a significant prison sentence.  She has shown an ongoing lack of integrity and poses a threat to health care programs.  I therefore conclude that the 12-year exclusion falls within a reasonable range. 

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Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and all other federal health care programs.  So long as the period of exclusion is within a reasonable range, based on demonstrated criteria, I have no authority to change it.  Joann Fletcher Cash, DAB No. 1725 at 7 (citing 57 Fed. Reg. 3298, 3321 (1992)).  I find that the 12-year exclusion falls within a reasonable range.