SUBJECT:

Affiong Ikpeme Ekong,

Petitioner,

The Inspector General.

DECISION

Petitioner, Affiong Ikpeme Ekong, is excluded from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (the Act) (42 U.S.C. § 1320a-7(a)(1)), effective July 20, 2005, based upon her conviction of a criminal offense related to the delivery of an item or service under the Medicare or a state health care program. There is a proper basis for exclusion. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) and an additional period of exclusion of 12 years, for a total minimum period ⁽¹⁾ of exclusion of 17 years, is not unreasonable based upon the three aggravating factors in this case.

I. Background

The Inspector General for the Department of Health and Human Services (the I.G.) notified Petitioner by letter dated June 30, 2005, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of 17 years, pursuant to section 1128(a)(1) of the Act. The basis cited for Petitioner's exclusion was her conviction in the United States District Court, Northern District of Texas, Dallas Division, of a criminal offense related to the delivery of an item or service under Medicare or a state health care program. See Act, section 1128(a)(1); 42 U.S.C. § 1320a-7(a)(1); and 42 C.F.R. § 1001.101(a).

Petitioner timely requested a hearing by letter dated July 14, 2005. The case was assigned to me for hearing and decision on July 25, 2005. On September 26, 2005, I convened a prehearing telephonic conference, the substance of which is memorialized in my Amended Order dated October 3, 2005 (Amended Order). During the telephone conference, Petitioner's counsel requested that this matter be stayed pending resolution of Petitioner's appeal of the underlying conviction. I declined to rule but offered that Petitioner could file a motion requesting such relief upon which I would rule. On October 17, 2005, Petitioner moved to lift her exclusion until such time as her motion to set aside her judgment of conviction was ruled upon by the federal court where she was convicted or, in the alternative, during the pendency of her administrative appeal before me. The I.G. opposed that motion in a pleading filed on October 25, 2005. On November 21, 2005, I denied Petitioner's motion.

On November 9, 2005, the I.G. timely filed a motion for summary judgment with a brief (I.G. Brief) and supporting evidence including I.G. exhibits (I.G. Exs.) 1 through 4. Pursuant to the Amended Order, Petitioner was to file a response not later than January 5, 2006. Petitioner filed nothing and on January 18, 2006, I ordered Petitioner to show cause not later than January 24, 2006, why the request for hearing should not be dismissed for abandonment. Counsel for Petitioner responded to the Order to Show Cause on January 24, 2006. Counsel for Petitioner asserted that contact between Petitioner and counsel was lost on some unspecified date when Petitioner began service of her sentence to confinement. Counsel asserted that contact was only reestablished on January 23, 2006. Counsel did not specifically assert that there was no intent to abandon the request for hearing, but I concluded that counsel's failure to timely request an extension prior to January 5, 2006, the date on which a response to the I.G. motion was due, or otherwise timely report his difficulty contacting his client, would not inure to the disadvantage of the Petitioner. Counsel also renewed the request for a continuance until the federal court ruled upon Petitioner's motion to set aside her conviction. The I.G. filed an opposition to the request for continuance on January 25, 2006. On February 9, 2006, I denied the motion for continuance and directed that Petitioner respond to the I.G. motion for summary judgment not later than February 23, 2006. I advised Petitioner that if she is ultimately successful in challenging her conviction, 42 C.F.R. § 1001.3005 provides the procedure for her to obtain relief from her exclusion and there is no need to delay this proceeding. I advised Petitioner that if she failed to timely file a response, I would treat that as an affirmative waiver of the right to respond and proceed to decide the matter based only upon the motion, brief, and evidence filed by the I.G.

On February 23, 2006, Petitioner filed a two-page "Petitioner's Response to the Motion for Summary Judgment and Request for Reconsideration of the Motion for Continuance" with no exhibits (P. Response). The I.G. filed a reply brief on February 28, 2006 (I.G. Reply). Petitioner has made no objection to the admissibility of any of the proposed exhibits and I.G. Exs. 1 through 4 are admitted.

II. Discussion

A. Findings of Fact

The following findings of fact are based upon the uncontested and undisputed assertions of fact in the pleadings and the exhibits admitted. Citations may be found in the analysis section of this decision if not included here.

1. On June 16, 2004, Petitioner was convicted, pursuant to her plea of guilty, of one count of health care fraud (aiding and abetting), a violation of 18 U.S.C. §§ 1347, 24(b), & 2 , in the United States District Court, Northern District of Texas. I.G. Ex. 4, at 1.

2. On August 27, 2004, Petitioner was sentenced to 24 months imprisonment followed by 2 years of supervised release; ordered to pay restitution with her husband in the amount of $896,737 to the Centers for Medicare & Medicaid Services (CMS); and to forfeit specified property. I.G. Ex. 4.

3. The restitution Petitioner was ordered to pay is based on the sentencing court's finding of total loss to CMS of $896,737. I.G. Ex. 4, at 5.

4. Petitioner admitted the following as part of her plea agreement (I.G. Ex. 2, at 2-3):

a. Petitioner and her husband owned and operated a durable medical equipment supply business in Dallas, Texas.

b. Petitioner and her husband obtained a Medicare supplier number.

c. Beginning July 9, 2002 and continuing through October 17, 2003, Petitioner, aided and abetted by her husband, knowingly and willfully caused fraudulent claims exceeding $390,000 to be submitted to Medicare for payment for power wheelchairs and accessories.

d. The claims for reimbursement were false and Petitioner knowingly purchased the patient files and information.

e. Petitioner knowingly altered certificates of medical necessity after the certificates were signed by a physician in furtherance of the scheme.

f. Petitioner knowingly received fraudulently obtained money from Medicare; used the money to purchase and recruit patients and healthcare information; and used the proceeds for her own personal use.

5. The I.G. notified Petitioner by letter dated June 30, 2005, that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for the minimum period of 17 years, pursuant to section 1128(a)(1) of the Act.

6. Petitioner timely requested a hearing by letter dated July 14, 2005.

B. Conclusions of Law

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

2. Summary judgment is appropriate.

3. Petitioner was convicted of a criminal offense 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.

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

5. The I.G. has shown by a preponderance of the evidence the aggravating factor established by 42 C.F.R. § 1001.102(b)(1), that the acts for which Petitioner was convicted resulted in a loss of $5,000 or more to a government program or one or more entities.

6. The I.G. has shown by a preponderance of the evidence the aggravating factor established by 42 C.F.R. § 1001.102(b)(2), that the acts for which Petitioner was convicted were committed over a period of one year or more.

7. The I.G. has shown by a preponderance of the evidence the aggravating factor established by 42 C.F.R. § 1001.102(b)(5), that the sentence imposed included incarceration.

8. Petitioner has not established by a preponderance of the evidence any of the mitigating factors that I am authorized to consider under 42 C.F.R. § 1001.102(c).

9. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).

10. Exclusion of Petitioner for an additional period of 12 years, a total minimum period of exclusion of 17 years, is not unreasonable based upon the three aggravating factors in this case.

11. Petitioner's exclusion began on July 20, 2005, the twentieth day after the June 30, 2005 I.G. notice of exclusion. 42 C.F.R. § 1001.2002.

C. Issues

The Secretary of the Department of Health and Human Services (the Secretary) has by regulation limited my scope of review to two issues:

Whether there is a basis for the imposition of the exclusion; and,

Whether the length of the exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).

The standard of proof is a preponderance of the evidence and there may be no collateral attack of the conviction that is the basis for the exclusion. 42 C.F.R. § 1001.2007(c) and (d). Petitioner bears the burden of proof and persuasion on any affirmative defenses or mitigating factors and the I.G. bears the burden on all other issues. 42 C.F.R. § 1005.15(b) and (c).

D. Law Applicable

Petitioner's right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary is provided by section 1128(f) of the Act (42 U.S.C. § 1230a-7(f)). Petitioner's request for a hearing was timely filed and I do have jurisdiction.

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in Medicare and Medicaid programs any individual convicted of a criminal offense related to the delivery of an item or service under the Medicare or any state health care program.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act shall be for a minimum period of five years. Pursuant to 42 C.F.R. § 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors. Only if the aggravating factors justify an exclusion of longer than five years may mitigating factors be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. § 1001.102(c).

E. Analysis

1. Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing. The right to hearing before an ALJ is accorded to a sanctioned party by 42 C.F.R. § 1005.2, and the rights of both the sanctioned party and the I.G. to participate in a hearing are specified in 42 C.F.R. § 1005.3. Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration. 42 C.F.R. § 1005.6(b)(5). The ALJ may also resolve a case, in whole or in part, by summary judgment. 42 C.F.R. § 1005.4(b)(12). Summary judgment is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts; or, the moving party must prevail as a matter of law even if all disputed facts are resolved in favor of the party against whom the motion is made. A party opposing summary judgment must allege facts which, if true, would refute the facts relied upon by the moving party. See e.g., Fed. R. Civ. P. 56(c); Garden City Medical Clinic, DAB No. 1763 (2001); Everett Rehabilitation and Medical Center, DAB No. 1628, at 3 (1997) (in-person hearing required where non-movant shows there are material facts in dispute that require testimony); Thelma Walley, DAB No. 1367 (1992); see also, New Millennium CMHC, DAB CR672 (2000); New Life Plus Center, DAB CR700 (2000).

There are no genuine issues of material fact in dispute in this case as all the facts material to disposition of this case were admitted to by Petitioner in connection with her plea of guilty to the offenses involved (I.G. Exs. 2, 3) and she has not disputed the evidence offered by the I.G. The sole issue in dispute before me is whether the duration of the period of exclusion proposed is unreasonable and should be reduced. This issue must be resolved against Petitioner as a matter of law, as the Secretary's regulations prohibit collateral attack of Petitioner's underlying conviction and none of the information Petitioner offers tends to show the existence of any of the mitigating factors I am authorized to consider under 42 C.F.R. § 1001.102(c). Accordingly, summary judgment is appropriate.

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

The I.G. cites section 1128(a)(1) of the Act as the basis for Petitioner's mandatory exclusion. The statute provides:

(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.

The statute requires the Secretary to exclude from participation any individual or entity: (1) convicted of a criminal offense; (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service was covered under Medicare or a state health care program.

Petitioner does not dispute that she was convicted pursuant to her guilty plea of a criminal offense within the meaning of section 1128(i) of the Act. Petitioner has repeatedly requested that this proceeding be delayed pending a ruling on her motion to set aside her conviction by the federal court. Petitioner renewed this request in her response to the I.G. motion for summary judgment. However, as I have previously explained, if Petitioner is ultimately successful in challenging her conviction, 42 C.F.R. § 1001.3005 provides the procedure for her to obtain relief from her exclusion and there is no need to delay this proceeding.

Petitioner does not dispute that she was convicted pursuant to her plea, of an offense related to the delivery of an item or service under Medicare or a state health care program. Accordingly, there is a basis for her exclusion.

3. Pursuant to section 1128(c)(3)(B) of the Act, the minimum period of exclusion under section 1128(a) is five years.

Petitioner has not disputed that the minimum period of an exclusion pursuant to section 1128(a)(2) is five years as mandated by section 1128(c)(3)(B), if I determine Petitioner is subject to mandatory exclusion. I have found there is a basis for Petitioner's exclusion pursuant to section 1128(a)(2) and the minimum period of exclusion is thus five years.

4. Petitioner's exclusion for five years is mandatory pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) and an additional period of exclusion of 12 years, for a total minimum period of exclusion of 17 years, is not unreasonable based upon the three aggravating factors in this case.

Petitioner pled guilty to the charges of which she was convicted in order to get the benefit of the plea agreement she entered. I.G. Exs. 2, 3. Presumably the federal district judge complied with Federal Rule of Criminal Procedure 11(b) and ensured that Petitioner understood her rights, that the plea was voluntary, and that there was a factual basis for the plea before he found Petitioner guilty. This is not the proper forum for review of what occurred in the trial court and Petitioner is not permitted to collaterally attack her conviction before me. 42 C.F.R. § 1001.2007(d). Thus, I conclude that Petitioner is bound by her pleas before the trial court and the nature of those charges to which she pled guilty as recorded in the official records of that court.

Petitioner does not dispute that the misconduct to which she pled guilty continued for one year or more, from July 2002 through October 2003. I.G. Ex. 2. She does not dispute that the federal court ordered her to pay restitution to CMS in the amount of $896,737 (I.G. Ex. 4) indicating a loss to the government due to Petitioner's misconduct far exceeding $5,000 (I.G. Ex. 2). She also does not dispute that she was sentenced to 24 months of incarceration. I.G. Ex. 4. These aggravating factors are specifically recognized by 42 C.F.R. § 1001.102 and may be considered in determining whether or not the period of exclusion imposed here is unreasonable.

Section 1001.102(c) of 42 C.F.R. provides that if any of the aggravating factors justifies a period of exclusion longer than five years, then mitigating factors may be considered as a basis for reducing the period of the exclusion to no less than five years. Under 42 C.F.R. § 1001.102(c), the following factors may be considered as mitigating and a basis for reducing the period of exclusion:

(1) the individual or entity being excluded was convicted of three or fewer misdemeanor offenses, and the entire amount of financial loss to Medicare and/or the state health care programs due to the criminal acts is less than $1500;

(2) the record of the criminal proceedings shows that the court determined that the individual to be excluded had a mental, emotional, or physical condition before or during the commission of the offense that reduced his or her culpability; or,

(3) the individual or entity to be excluded cooperated with federal or state officials with the result that:

(i) others were convicted or excluded from Medicare, Medicaid, and other federal health care programs,

(ii) additional cases were investigated or reports issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii) a civil money penalty or assessment was imposed against another individual under part 1003 of this chapter.

Evidence which does not relate to an aggravating factor or a mitigating factor is irrelevant to determining the length of an exclusion. The burden is upon Petitioner to show the presence of mitigating factors. 42 C.F.R. § 1005.15; Dr. Darren James, D.P.M., DAB No. 1828 (2002). Petitioner argues in her response to the motion for summary judgment that the exclusion relates to the operation of medical equipment supply business and has nothing to do with her practice of her profession as a nurse; that her skills as a nurse have not been questioned; that the medical equipment business she was involved with no longer exists and there is no likelihood that the misconduct will reoccur; and that she has a pending motion to overturn her conviction. ⁽²⁾ Petitioner's arguments do not address the mitigating factors recognized by the regulations and Petitioner has presented no evidence that would tend to establish any of the recognized mitigating factors. Thus, the arguments Petitioner advances in her brief are irrelevant to the issue of whether the period of exclusion imposed is unreasonable.

The Departmental Appeals Board (DAB) has made clear that the role of the ALJ in cases such as this is to conduct a "de novo" review as to the facts related to the basis for the exclusion and the facts related to the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102. See Joann Fletcher Cash, DAB No. 1725 (www.hhs.gov/dab/decisions/dab1725.html), n.6 (2000) (n.9 in the original decision and Westlaw�), and cases cited therein. The regulation specifies that I must determine whether the length of exclusion imposed is "unreasonable" (42 C.F.R. § 1001.2007(a)(1)). The DAB has explained that, in determining whether a period of exclusion is "unreasonable," I am to consider whether such period falls "within a reasonable range." Cash, n.6. The DAB cautions that whether I think the period of exclusion too long or too short is not the issue. I am not to substitute my judgment for that of the I.G. and may only change the period of exclusion in limited circumstances. In John (Juan) Urquijo, DAB No. 1735 (2000), the DAB made clear that if the I.G. considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the I.G. fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum. In Gary Alan Katz, R.Ph., DAB No. 1842 (2002), the DAB suggests that, when it is found that an aggravating factor considered by the I.G. is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected absent some circumstances that indicate no such adjustment is appropriate. The Katz panel did not elaborate upon the weight to be given individual aggravating factors, or how my de novo review and assessment of the weight to be given to proven aggravating factors is related to the weight the I.G. assigned those same factors.

In this case there is no question about the existence of the three aggravating factors cited by the I.G. and Petitioner has produced no evidence or argued that there are mitigating factors that were not considered. Given the nature of the aggravating factors, I have no difficulty concluding that a minimum period of exclusion of 17 years is "not unreasonable."

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid and all federal health care programs for a minimum period of 17 years, effective July 20, 2005, 20 days after the June 30, 2005 I.G. notice of exclusion.

Keith W. Sickendick

Administrative Law Judge

1. Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires. Reinstatement is not automatic upon completion of the period of exclusion.

2. It is also represented in the response that Petitioner's incarceration is affecting her ability to furnish necessary documentary materials in support of her motion for a continuance. However, Petitioner has counsel who is not incarcerated and counsel provides no explanation for why his client's incarceration prevents or impedes his zealous representation of her. Counsel also fails to indicate what documentation Petitioner might provide in support of the motion, which has previously been denied and which I decline to reconsider at this point in the proceedings.