DECISION NO. CR6070
DEPARTMENTAL APPEALS BOARD (BOARD)
SYLVIE WAMBA
PETITIONER-Appellant
VERSUS
THE INSPECTOR GENERAL
U.S DEPARTMENT OF HEALTH AND HUMAN SERVICES
RESPONDENT-Appellee
A. LEGAL ARGUMENT
i. The Administrative Law Judge Concluding the Summary Judgment was Appropriate
42 C.F.R. § 1005.4(b)(12).
1. 42 C.F.R. § 1005.4(b)(12) Summary judgment is appropriate in an exclusion case when
there are no disputed issues of material fact and when the undisputed facts, clear and not
subject to conflicting interpretation, demonstrate that one party is entitled to judgment as
a matter of law.
2. The Appellant is in agreement that Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David
A. Barrett, DAB No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma
Walley, DAB No. 1367 (1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W.
Foderick, M.D., DAB No. 1125 (1990) all provide that the when the undisputed material
facts of a case support summary judgment, there is no need for a full evidentiary hearing,
and neither party has the right to one.
3. However, it is the Appellant’s contention that the Administrative Law Judge erred in fact
and in law by declaring that there is no genuine dispute between the Appellant and
Appellee.
4. Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a
hearing by an ALJ and judicial review of the final action of the Secretary of Health and
Human Services (the Secretary).
5. Accordingly, the Administrative Law Judge erred in fact and in law by concluding that a
summary judgment was appropriate in this case.
6. There was indeed the disputed issue of the unreasonableness of the mandatory five-year
period imposed on the Appellant by the Inspector General. Hence according to Section
1128(f) of the Act (42 U.S.C. § 1320a-7(f)), the Appellant had the right to be heard by
the Administrative Law Judge.
7. In the initial proceeding, the standard of proof was 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, and the IG bears the burden on all other
issues. 2 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 4. There may be no collateral
attack of the conviction that is the basis for the exclusion. 42 C.F.R. § 1001.2007(d).
8. Thus, the Appellant contends that the Administrative Law Judge erred in fact and in law
by denying the Appellant a chance to be heard and thus a chance to present defenses and
mitigating factors.
9. The Administrative Law Judge also erred in law and in fact in declaring that there is no
issue of whether the period of exclusion is unreasonable because the Inspector General
imposed the minimum mandatory period of five years.
10. The Appellant contends that the main issue in question is whether the mandatory period
of five years was unreasonable and the Administrative Law Judge was bound by the
Court to grant her a chance to present evidence in support of her defense.
ii) The Administrative Law Judge Concluding that the Petitioner’s Plea of Guilty
Merits the Mandatory Exclusion
11. Act § 1128(a)(1). Congress has, by the plain language of section 1128(a)(1) of the Act,
required the Secretary to exclude from participation in Medicare, Medicaid, and all
federal health care programs any individual or entity: (1) convicted of a criminal offense,
whether a misdemeanor or felony; (2) where the offense is related to the delivery of an
item or service; and (3) the delivery of the item or service was under Medicare or a state
health care program.
12. The Administrative Law Judge erred in law and in fact when he concluded that the
Appellant’s argument that “common sense” analysis put forth by the IG is predicated on
an excessively expansive theory of the relationship between her criminal conduct and the
delivery of an item or service under Medicare or a state health care program was a form
of admission of guilt.
13. The Appellant was denied an opportunity of a fair hearing hence the chance to present
evidence in support of her innocence.
14. The Administrative Law Judge thus erred in fact and in law in concluding that the
Appellant had pleaded guilty to the delivery of an item or service under Medicare or a
state health care program.
15. The Appellant also contends that the Administrative Law Judge wrongly concluded that
there is a nexus between Petitioner’s offense and the delivery of a health care.
16. The Administrative Law Judge also erred in failing to consider the available evidence or
proof of the conviction of the Appellant and its viability in determining the applicability
of the imposition of the mandatory exclusion by the Inspector General.
17. The Judge also erred in failing to consider the Petitioner’s argument that she did not truly
understand the nature of the crime to which she pleaded guilty. P. Br. at 5. The facts
underlying the charged offense establishes the required nexus between the offense and
the delivery of a health care item or service under Ohio Medicaid.
18. The Appellant’s contention was a permissible questioning of her plea of guilt and
underlying conviction. By claiming that she mistakenly pleaded guilty to an offense that
does not match her criminal conduct, the same ought to have been reviewed by the
relevant body first.
iii) Petitioner’s exclusion for five years is not unreasonable as a matter of law
19. The Administrative Law Judge also erred in failing to consider the mitigating factors
presented by the Appellant. Such include that she made corrections in her business
practices, web searches were done pending criminal background checks, and Target
continues to serve the community without charging Ohio Medicaid pending the decision
in this case. This would have greatly influenced the decision of the judge with regard to
the period of exclusion.
20. The Appellant also contends that the Judge failed to consider the dire consequences that
the five-year exclusion would have on the Appellant’s business.
B. PRAYER FOR RELIEF
REASONS WHEREFORE, Appellant respectfully requests that this Honorable Court reverse the
Final decision of the Administrative Law Judge dated December 20, 2021 and reinstate the
Appellant in the participation in Medicare, Medicaid and other federal health care programs.
Dated:
Respectfully Submitted,
___________________________________
Sylvie Wamba
VERIFICATION
I, Sylvie Wamba, being duly sworn depose and say that I am the Petitioner-Appellant in the
above entitled action, that I have read the foregoing Brief of Appeal and know the contents
thereof. That the same is true of my own knowledge except as to those matters and things stated
upon information and belief, and as to those things, I believe them to be true.
_________________________________
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this _____ day of ____________________, 2021.
______________________________
Notary Public
________________________________________
(Printed name of Notary Public)
My Commission Expires: ____________________
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was sent on the
(Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt
requested, to the following parties or attorneys of record:
……..
Dated:
Respectfully Submitted,
___________________________________
Sylvie Wamba
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )
