____________________________________
In the Case of: )
)
Sylvie Wamba )
Petitioner, ) Docket No. C-22-166
V. ) Date: February 28Th, 2022
The Inspector General )
____________________________________)
RESPONSE TO THE INSPECTION GENERAL’S MOTION FOR SUMMARY JUDGMENT
Petitioner is responding to the Inspection General’s (IG) motion for summary judgment with regard to her exclusion from participating in Medicare, Medicaid and all Federal health care programs imposed under section 1128 (a)(1) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(a)(1), for a period of five years.
In opposition of the IG’s argument, Petitioner is presenting her argument in the attached memorandum and exhibits.
Respectfully submitted,
/s/ Sylvie Wamba _______________
SYLVIE WAMBA, RN/CEO
Target Health Care LLC
11497 Springfield Pike, Suite # 7
Springdale, OH 45246
Phone: (Office) (513) 426-8492
(Cell) (513) 609-8524
Fax: (513) 426-8641
Email: sylviewamba@targethealthcare.org
____________________________________
In the Case of: )
)
Sylvie Wamba )
Petitioner, ) Docket No. C-22-166
V. ) Date: February 28Th, 2022
The Inspector General )
____________________________________)
SYLVIE WAMBA’S MEMORANDUM IN RESPONSE TO THE INSPECTION GENERAL’S MOTION FOR SUMMARY JUDGMENT
This is an appeal of Sylvie Wamba’s (Petitioner) determination to be removed from the Inspection General’s (IG) exclusion list. Which prohibits her from participating in Medicare, Medicaid and all Federal health care programs for a minimum statutory period of five years.
The IG has excluded Petitioner based on her conviction in the Franklin County Municipal Court, Columbus, Ohio (Court) of a criminal offense that was negotiated to lower her sentence. The Ohio Attorney General had recommended that Petitioner plead guilty on her criminal complaint. Petitioner believed that she was pleading guilty on what she was accused of, which was a failure to obtain a background check on nine of her employees. But Petitioner recently found out that the charge listed on her conviction was different. Petitioner does not dispute pleading guilty but she disputes the charges on her guilty plea which she knew not until December 2021.
Accordingly, Petitioner believes that the IG is excluding her based on the wrong sentence.
Petitioner respectfully request that in light of all the details that the IG has put forth in their exhibits #2 and #3, her name be removed from the IG’s exclusion list.
- Background
Petitioner is a registered nurse, the owner and operator of Target Health Care LLC a Medicaid provider home health agency in the Cincinnati Ohio area.
On June 29th 2020, Petitioner plead guilty to one count of criminal mischief in violation of R.C. 2909.07 (A) (6), a first degree misdemeanor. She had hired Martez Morris, a young man who impersonated a nurse. Martez succeeded in making Petitioner believe that there was an issue with his nursing license. He stated that the Ohio Board of Nursing used his middle name as his first name. Petitioner was able to find his license online using his middle name as his first name (see exhibit #1).
Martez was asked several times to perform a background check, but he somehow always had reasons for not doing so. He was always very charming and pleasant, doing above and beyond what he was asked in his role as a nurse. His two patients and their families were very fond of him. Martez worked for Target Health Care LLC about two and a half months before Petitioner was informed by the Ohio Attorney General that he was working under a stolen identity and did not have a nursing license.
Target Health Care LLC had a habit of requesting a background check on new employees. Because the monetary charge was on them, some with financial difficulties were not able to do theirs right away but planned to do it once they receive their first paycheck. Unfortunately, it was not always easy to follow up with them. Petitioner now recognize that that practice was not the best because it led to infractions.
Nevertheless, while waiting for the background checks, Target Health Care LLC conducted a search on the government database online as recommended by the Ohio Revised Act 5123-2-02 paragraphs (C) (2) (a) to (C) (2) (f) (see exhibit #2) to allow the new employee to work. That procedure was done for Martez (see exhibit #3). One of the 8 employees who were found with no background checks was let go after two weeks of employment because of the findings on the database. The hiring manager had permitted that employee to work on the basis that she was a good friend of the client that Target Health Care LLC served and did not perform the search on the government database right away as it should have been done.
Petitioner is not trying to make excuses but merely explaining how these infractions happened. She however takes full responsibility for them.
Petitioner would like to point out that the Ohio Attorney General negotiated a resolution of the case against her to dismiss the original Medicaid Fraud charges and allowed her to plead guilty to a criminal mischief as they did with the owner of the other agency who had also hired Martez (see IG’s exhibit #2).
Petitioner agreed to plead guilty because she thought she was pleading guilty to her failure to obtain background checks for her new employees. She did not fully understand that there will be a different charge stated on her file.
On June 29th 2020, when Petitioner pleaded guilty, the judge was pleased to hear about all the corrections made to avoid such infractions in the future (Target Health Care LLC had signed an agreement with a nearby background check site where all new employees are sent free of charge, the agency is billed on a monthly basis). She was ordered to pay fines plus court fees.
But in early December, Petitioner received a letter from the Office of the Inspection General notifying her that she was being excluded from participation in Medicare, Medicaid, and all Federal health care programs pursuant to section 1128(a)(1) of the Social Security Act.
- Issues Presented:
The issues are:
- Petitioner has plead guilty to what she thought was her failure to obtain background checks on her new employees, but in fact she plead guilty to a charge she was not familiar with, a criminal mischief, a first degree misdemeanor and was charged with one count of a criminal mischief in violation of R.C 2909.07 (A) (6). Petitioner’s counsel presented the guilty plea as the best resolution of her situation without going into details on the consequences,
- Whether the IG used the right section of the Social Security Act to impose a mandatory exclusion which prohibits Petitioner from participating in Medicare, Medicaid, and all Federal health care programs,
- Whether the length of the Petitioner’s term of exclusion is unreasonable.
- Statement of Facts:
The IG has full knowledge of the background of Petitioner’s crime as presented on their exhibits #2 and #3.
The IG is aware that the Ohio Attorney General had recommended that Petitioner plead guilty to a criminal mischief of their choosing to lessen her conviction.
The IG is aware that in the Ohio Attorney General’s memorandum, there is no mention of Petitioner “without privilege to do so, and with intent to impair the functioning of any computer, computer system, computer network, computer software or computer program, knowingly altered or modified data contained in a computer, computer software or computer program”.
In opposition, the IG’s exhibit #2 clearly states at the end of the second paragraph that all the claimed services were performed. Which implies that Target Health Care LLC only billed Medicaid for services rendered.
Target Health Care LLC does not utilize any computer system or software apart from ADP payroll, it has always used and is still using paper charting. Employees use timesheets that they get signed by patient or patient’s guardian. That constitute proof of attendance and a justification for billing. Billing is done on the insurance provider’s portal online.
Petitioner’s computer skills are very limited, she is not able to perform complicated task on the computer.
The Ohio Attorney General’s memorandum also mentions Petitioner’s willingness to help by being fully cooperative and providing key information with regard to Martez Morris’ case.
It was never Petitioner’s intent to disobey the law, and she was not in any kind of scheme. In fact, she had made some attempts to stay within the guidelines, but those attempts were not reinforced and she regrets that those infractions happened.
- Argument
Although Petitioner pleaded guilty to R.C. 2909.07 (A) (6), she was not aware of the details of that offense. She naively believed that pleading guilty meant going in front of a judge and admitting her wrongdoing in regards to her failure to obtain background checks for her 9 new employees.
Courts have required the disclosure of all agreements reached between prosecution witnesses and the State, even if the agreements were not binding, involved an unrelated matter, or were not expressly made in exchange for the testimony at trial. The court in Haber v. Wainwright, observed that “Giglio did not speak in terms of the state’s duty to disclose only bona fide enforceable grants of immunity. Its reach extends to `any understanding[s] or agreement[s].'” 756 F.2d at 1524 (quoting Giglio v. United States, 405 U.S. 150, 153-55, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972) at 155, 92 S.Ct. at 766). The Sixth Circuit has held that a state prosecutor may not avoid his disclosure requirements under Brady merely by claiming that in his view the suppressed evidence was neutral and not exculpatory where information has been withheld from the defense.
Petitioner does not dispute that she was convicted of a criminal offense, but she argues that the offense she was convicted of does not match her crime, therefore the IG should not use that offense to exclude her from participating in Medicare, Medicaid and all Federal health care programs.
The offense stated on her file is the result of the negotiated plea, because the owner of the other agency that employed Martez had plead guilty to R.C. 2909.07 (A) (6), the Ohio Attorney General wanted petitioner to plead guilty to the same (see IG’s exhibit #2)
The I.G.’s theory, expressed in his motion for summary disposition, is so broad as to make any criminal offense committed on the premises of a facility which receives Medicare or Medicaid reimbursement a criminal offense within the meaning of section 1128(a)(1). The logical extension of his argument would, for example, encompass the use of technology, where in fact no form of technology i.e. computers, was used by the Petitioner or situated at the Petitioner’s workplace. This analysis departs from the plain meaning of the Act Furthermore, it would make section 1128(a)(1) so broad in its application as to render virtually meaningless the remainder of sections 1128(a) and (b). The Act does not define the term “criminal offense related to the delivery of an item or service.” Catherine Dodd v. the Inspector General, Medicare & Medicaid Guide, (CCH) ¶ 40243 (March 16, 1992)
Petitioner understands that the IG has a difficult mission of protecting the population served by different kind of healthcare providers by ensuring that they are not taken advantage of. And that determining the sincerity and good intent of those providers is almost impossible. But there are always exception to the rules…
It is stated on the Ohio Attorney General’s memorandum that Target Health Care LLC had performed all services claimed, no monetary fraud was found, no harm was done to any of the patients served.
In fact, Target Health Care LLC continues to serve its clients free of charge until this exclusion matter is resolved.
Petitioner believes that the IG has deliberately chosen section 1128 (a) (1) of the Social Security Act 42 U.S.C. 1320a-7(a) (1) to trigger a mandatory exclusion.
Petitioner does not deserve to be excluded from Medicare, Medicaid, and all Federal health care programs, she took full responsibility for her failure to obtain the background checks of her new employees, she corrected her hiring process so that those infractions do not happen again.
Petitioner believes that the five years exclusion term is unreasonable, she should not be excluded.
She strongly believes that if there is a basis for exclusion, it should be a permissive exclusion.
She believes that her crime is more suited to the permissive exclusion of the Social Security Act 1128 (b) (9), (10), and (11) 42 U.S.C.1320a 7(b) (9), (10), and (11).
- Conclusion:
For the foregoing reasons, Petitioner respectfully request that her name be removed from the IG’s exclusion list. So that she can resume her participation to Medicare, Medicaid and all Federal health care programs.
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 )
