Rose Johnson, DAB CR5697 (2020)

DECISION

Petitioner, Rose Johnson, was convicted, in the Delaware County Circuit Court of the State of Indiana (state court), of recklessly, knowingly, or intentionally failing to make, keep, or furnish records related to dispensing or administration of controlled substances.  Petitioner used her nursing credentials to remove controlled substances from her employer's automated dispensing system, but did not chart the medications as administered to patients, or otherwise account for the controlled substances.  Based on this conviction, the Inspector General (IG) has excluded Petitioner for three years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(b)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(b)(1)).1

Petitioner seeks review of the IG's decision to exclude her.  Petitioner argues that her conviction is not one described in section 1128(b)(1) of the Act.  In the alternative, Petitioner argues that a three-year exclusion is unreasonable.  For the reasons discussed below, I affirm that the IG is authorized to exclude Petitioner and that a three-year exclusion is within a reasonable range.

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I.  Background and Procedural History

Petitioner was a registered nurse employed by Indiana University Health (IUH) at Ball Memorial Hospital from August 14, to October 7, 2017.  IG Exhibit (Ex.) 2 at 1 (¶3).  On June 19, 2018, Petitioner was charged by criminal information with three offenses relating to registration of controlled substances under Ind. Code § 35-48-4-14(a)(3), (b)(3), and (c).  IG Ex. 3.  On January 24, 2019, Petitioner pleaded guilty to one offense under Ind. Code § 35-48-4-14(a)(3):  "recklessly, knowingly, or intentionally fail[ing] to make, keep or furnish a record or information required under [Ind. Code §] 35-48 as to the documentation of the dispensing or administration of a controlled substance."  IG Ex. 3 at 1; IG Ex. 4 at 2-3.  The state court accepted Petitioner's plea and entered a judgment of conviction against her.  IG Ex. 5 at 1.  Petitioner was sentenced to the Delaware County Jail for a period of 365 days, but the court suspended Petitioner's prison sentence and placed her on supervised probation for 365 days.  Id. at 1-2.  As part of her probation, Petitioner was required to submit to an alcohol and substance abuse evaluation.  Id. at 2.  The court also assessed a $1.00 fine, $185.00 in court costs, and a $200.00 state drug interdiction fee.  Id.

By letter dated January 31, 2020, the IG notified Petitioner that she was being excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(1) of the Act for a period of three years.  IG Ex. 1.  The IG stated that the exclusion was based on Petitioner's state court conviction of a criminal offense in connection with fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct that was connected to the delivery of a health care item or service as described in section 1128(b)(1) of the Act.  Id.

On March 18, 2020, Petitioner timely requested a hearing before an administrative law judge.  On April 9, 2020, I held a telephone pre-hearing conference, the substance of which is summarized in my April 10, 2020 Order and Schedule for Filing Briefs and Documentary Evidence (Order).  See 42 C.F.R. § 1005.8.  Among other things, I directed the parties to file short-form briefs.  Order ¶ 7.b.  In accordance with the Order, the IG filed a brief (IG Br.) and five exhibits (IG Exs. 1-5).  Petitioner filed a brief (P. Br.) and four exhibits (P. Exs. 1-4).  The IG filed a reply brief (IG Reply).  Neither party objected to any of the proposed exhibits; therefore, I admit them all into the record.  42 C.F.R. § 1005.8(c); Order ¶ 8; Civil Remedies Division Procedures § 14(e).

The parties agree that this case does not require an in-person hearing.  IG Br. at 10; P. Br. at 10.  I therefore decide this case based on the written record.

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II.  Issues

The issues I must address are whether the IG had a basis for excluding Petitioner and whether the length of the exclusion is unreasonable.  Act § 1128(b)(1), (c)(3)(D) (42 U.S.C. § 1320a-7(b)(1), (c)(3)(D)); 42 C.F.R. § 1001.2007(a)(1).

III.  Jurisdiction

I have jurisdiction to adjudicate this case.  Act § 1128(f)(1) (42 U.S.C. § 1320a-7(f)(1)); 42 C.F.R. § 1005.2.

IV.  Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font.

A.  Petitioner may be excluded pursuant to section 1128(b)(1) of the Act (42 U.S.C. § 1320a-7(b)(1)) due to her January 24, 2019 conviction of a misdemeanor criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct that was connected to the delivery of a health care item or service.

Section 1128 of the Act authorizes the Secretary of the Department of Health and Human Services (Secretary) to exclude certain individuals from participating in federal health care programs, as defined in section 1128B(f) of the Act.  Act § 1128 (42 U.S.C. § 1320a-7).  Section 1128(b)(1) of the Act authorizes the Secretary to exclude any individual who has been convicted of a misdemeanor offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.  Under section 1128(b)(1)(A), the IG must prove the following three elements by a preponderance of the evidence to demonstrate a basis for excluding Petitioner:  (1) Petitioner was convicted of a misdemeanor offense that occurred after August 21, 1996; (2) the conviction was related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct; and (3) the fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct occurred in connection with the delivery of a health care item or service.  Act § 1128(b)(1) (42 U.S.C. § 1320a-7(b)(1)(A)).  As discussed below, the IG has met this burden.

1.  Petitioner was convicted of a misdemeanor criminal offense after August 21, 1996.

The Act provides, in pertinent part, that an individual is convicted "when a judgment of conviction has been entered against the individual . . . by a Federal, State, or local court;" "when there has been a finding of guilt against the individual . . . by a Federal, State, or

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local court;" or "when a plea of guilty . . . by the individual . . . has been accepted by a Federal, State, or local court."  Act § 1128(i)(1)-(3) (42 U.S.C. § 1320a-7(i)(1)-(3)); see also 42 C.F.R. § 1001.2.

Petitioner does not dispute that she was convicted of a misdemeanor criminal offense after August 21, 1996.  P. Br. at 1-2.  On June 19, 2018, Petitioner was charged by criminal information with three Level 6 Felony offenses relating to registration of controlled substances under Ind. Code § 35-48-4-14(a)(3), (b)(3), and (c).  IG Ex. 3.  On January 24, 2019, Petitioner pleaded guilty to recklessly, knowingly, or intentionally failing to make, keep, or furnish documentation of the dispensing, or administration of, a controlled substance, pursuant to Ind. Code § 35-48-4-14(a)(3).  IG Ex. 3 at 1; IG Ex. 4 at 2.  The state court accepted Petitioner's guilty plea, found her guilty, and entered a judgment of conviction against Petitioner.  IG Ex. 5 at 1.  The court reduced Petitioner's conviction to a Class A Misdemeanor.  Id.  The court's disposition of Petitioner's guilty plea meets definition of "conviction" under subsections 1128(i)(1), (2), and (3) of the Act.

2.  The criminal offense of which Petitioner was convicted was related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

Section 1128(b)(1)(A) permits the IG to exclude an individual or entity convicted "of a criminal offense consisting of a misdemeanor relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct" if the misdemeanor is "in connection with the delivery of a health care item or service" or if the criminal conduct occurred "with respect to any act or omission in a health care program (other than those specifically described in subsection (a)(1))."  Act § 1128(b)(1) (42 U.S.C. § 1320a-7(b)(1)).

Petitioner argues that she was "not convicted of a crime which contains an 'element of fraud' . . . [because Petitioner] was convicted of only one offense:  failing to make, keep, or furnish accurate records."  P. Br. at 5 (emphasis in the original).  Petitioner argues that because recklessness is an element of the offense which triggered her exclusion, "the factual allegations which form the basis for [Petitioner's] conviction must be viewed with an eye towards her acting 'recklessly'."  Id.  Because, according to Petitioner, the offense for which she was convicted did not include an "element of fraud," her crime is not "related to" fraud and she should not be excluded.  Id.

Petitioner's argument is incorrect.  Exclusion pursuant to section 1128(b)(1) does not require that "fraud" be an explicit element of the crime for which an individual is convicted.  Rather, the statute requires only that the conviction be "related to" fraud.  Appellate panels of the Departmental Appeals Board (DAB) have often reiterated that section 1128's references to offenses "relating to" a specified crime such as fraud, theft,

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or patient abuse (or "related to the delivery of" a Medicare item or service) require only a "common sense connection" or "nexus" between the offense and the crimes or actions named in the statute.  See, e.g., Melissa Michelle Phalora, DAB No. 2772 at 8 (2017) (citations omitted).  This interpretation was affirmed in Friedman et al. v. Sebelius, 686 F.3d 813 (D.C. Cir. 2012), aff'g in part, Paul D. Goldenheim, M.D., et al., DAB No. 2268 (2009).  In that case, the court of appeals agreed that, "the statute unambiguously authorizes . . . exclusion of an individual whose conviction was for conduct factually related to fraud."  Id. at 820.  See also Richard E. Bohner, DAB No. 2638 (2015), aff'd, Bohner v. Burwell, No. 2:15-cv-4088, 2016 WL 8716339 (E.D. Pa. Dec. 2, 2016).

To determine whether there is a "common sense connection" or "nexus" between Petitioner's conviction and fraud, I may consider evidence beyond the four corners of the criminal information and Petitioner's plea agreement.  Numerous appellate decisions have held that the basis for the federal exclusion authority need not appear in the charges or associated court documents, but may be demonstrated by extrinsic evidence of the underlying facts and circumstances of the offense.  See, e.g., Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000) (and cases there cited), aff'd, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003).

In the present case, a supervising investigator for the Office of the Indiana Attorney General, Medicaid Fraud Division, prepared an Affidavit for Probable Cause, in which he details the investigation that led to Petitioner's conviction.  IG Ex. 2.  The investigator signed the affidavit under penalty of perjury.  Id. at 4.  Based on the investigator's oath, I find that the affidavit provides reliable information regarding the circumstances that led to Petitioner's conviction.

The affidavit describes IUH's process for dispensing medication for administration to patients and documenting the dispensing and administration:

[IUH] and their in-house pharmacy utilize a Pyxis automated medication dispensing system to store and dispense medications to patients within their facility.  Assigned nurses remove medications from the Pyxis machine per a physician order and dispense to the patients.  Nurses remove medication from the Pyxis machine by entering their fingerprint and/or a unique identification code assigned to them.  When drugs are removed from the Pyxis, and dispensed to a patient, the nurse completes a Medication Administration Record (MAR) in the hospital EPIC system (Electronic Patient Care Reporting) and documents the date, time and quantity of the drug remaining in the Controlled Substance Record/Report (CSR).  After the medication has been dispensed to the patient, nurses scan the

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patients' wristband to document the medication was given to the patient.

Id. at 2 (¶ 5).  The affidavit goes on to explain that a nurse or other health care professional is required to document in the MAR and CSR each time medication is administered.  Id. (¶ 6).  If a nurse removes a medication from Pyxis, but does not dispense or administer it to a patient, the medication may be destroyed, but these actions must be witnessed by another staff member.  Id.

According to the affidavit, other staff members reported possible discrepancies in Petitioner's charting of controlled substances.  Id. (¶ 7).  Based on these reports, IUH pharmacists conducted an internal audit of Petitioner's charting related to controlled substances.  Id. at 3 (¶ 8).  The audit revealed that, on September 20, 2017, Petitioner removed and did not chart one 1 mL vial of hydromorphone.  Id. at 3 (¶ 14).  On September 24, 2017, Petitioner removed and did not chart one tablet of oxycodone and one 1 mL vial of hydromorphone.  Id.  With respect to the one 1 mL vial of hydromorphone that Petitioner removed but did not chart on September 24, Petitioner documented .8 mL as wasted; however, .2 mL of the vial was unaccounted for and the entry was delayed five hours (removed 21:16, wasted 02:01).  Id.  On September 28, Petitioner removed and did not chart two tablets of hydrocodone.2  Id.

Put simply, in the course of her employment as a registered nurse with IUH, Petitioner used her unique credentials to log in to the Pyxis machine and remove controlled substances to dispense and administer to patients.  Id. at 2-4.  However, Petitioner did not document that the controlled substances she removed on September 20, 24, and 28, 2017, had been dispensed and administered to patients, as IUH's internal audit confirmed.  Id. at 3-4.  Petitioner has not disputed these facts.  To the contrary, she concedes she "deviated from acceptable standards of conduct when she failed to properly document the administration of controlled substances."  P. Br. at 6; P. Ex. 4.  However, Petitioner argues that she merely made reckless data entry errors, that she did not harbor the requisite intent to defraud anyone, and that because she was not specifically convicted of fraud, there is no basis to exclude her.  P. Br. at 6-7.

I reject Petitioner's argument that her conviction establishes only that she acted recklessly, rather than knowingly or intentionally.  The intent element of Ind. Code § 35‑48‑4‑14(a)(3) provides that an individual violates the statute by recklessly, knowingly, or intentionally failing to make, keep, or furnish documentation of the

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dispensing, or administration of, a controlled substance.  IG Ex. 3 at 1 (emphasis supplied).  As far as the record reveals, there is no transcript of Petitioner's plea allocution or sentencing.  Thus, there is no contemporaneous statement by Petitioner or finding by the court as to the level of intent to which Petitioner pleaded guilty.  In the absence of contemporaneous documentation, I am not persuaded by Petitioner's post hoc reframing of the basis of her conviction in a light most favorable to her.  Rather, I find that the conduct described above supports an inference that Petitioner was more than merely reckless.3

When Petitioner logged into the Pyxis machine and removed controlled substances, she implicitly represented that she was removing the medications for a proper purpose.  Specifically, Petitioner's log-in was an implicit representation that she was removing controlled substances to dispense and administer them to a patient or patients pursuant to a physician's order.  I draw this inference from the IUH pharmacy audit findings that the controlled substances Petitioner removed from the Pyxis machine on September 20, 24, and 28, 2017, were associated with specific patients.  See IG Ex. 2 at 3-4 (¶ 14) (patient identifiers 18, 13, and 1).  Despite Petitioner's implicit representation that the controlled substances were removed for a proper purpose, the medications she removed on September 20, 24, and 28, 2017, were either not dispensed and administered to patients, not witnessed as removed but not administered, or not accounted for as destroyed.  These circumstances render false Petitioner's implicit representation that she removed the medications for a proper purpose.  Moreover, Petitioner's failure to observe the protocol of having another staff member witness the destruction or wasting of controlled substances that she did not administer to patients leads me to infer that Petitioner intended to conceal what became of the controlled substances that she removed but did

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not chart.4  I conclude that Petitioner's intent to conceal her actions is sufficiently related to fraud to bring her conviction within the ambit of section 1128(b)(1).

In summary, I find that there is a nexus or common sense connection between Petitioner's criminal conduct giving rise to her misdemeanor conviction and fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

3.  The misdemeanor criminal offense of recklessly, knowingly, or intentionally failing to make, keep, or furnish a record documenting the dispensing or administration of a controlled substance in violation of Ind. Code § 35-48-4-14(a)(3) was connected to the delivery of a health care item or service.

Section 1128(b)(1) of the Act requires that Petitioner's offense be committed in connection with the delivery of a health care item or service.  Appellate panels of the DAB have held that the phrase "in connection with the delivery of a health care item or service" is broad and requires the same common sense nexus which is required for an offense to be "related to the delivery of an item or service" under section 1128(a)(1) of the Act.  Kenneth M. Behr, DAB No. 1997 at 7 n.5 (2005).  Such a connection is present when the offense occurs "in the context of an individual's participation in the chain of delivery of health care items or services."  Id. at 9.  This includes offenses which could not have been accomplished but for an individual's position in the chain of delivery.  See Erik D. DeSimone, R.Ph., DAB No. 1932 (2004); Kim Anita Fifer, DAB CR1016 (2003).  In Fifer, the administrative law judge upheld the exclusion, pursuant to section 1128(a)(3), of a nursing home employee who committed identity theft by stealing personal identifying information belonging to residents of the facilities at which she worked.  Fifer, DAB CR1016.  The administrative law judge reasoned that health care facilities rely on the honesty and integrity of employees to provide necessary care to vulnerable patients.  Id. at 2.  Thus, the excluded individual's abuse of her "positions of trust" to steal the identities of patients for whom she provided care had a connection, even though indirect, with the delivery of health care services.  Id.

As described above, Petitioner, a registered nurse with IUH, used her unique credentials to log in to the Pyxis machine and remove controlled substances to administer to patients.  IG Ex. 2 at 2-4.  However, Petitioner did not document that the controlled substances removed on September 20, 24, and 28, 2017, had been dispensed and administered to patients and IUH's internal audit confirmed this conduct.  Id. at 3-4.  As a nurse,

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Petitioner was in a position of trust to dispense and administer controlled substances to IUH's patients.  Petitioner would not have had access to the Pyxis machine and the controlled substances it contained but for her status as a registered nurse employed by IUH.  Dispensing and administering controlled substances to hospital patients is part of the chain of delivery for health care items and services.  For these reasons, I conclude that Petitioner's offense was related to the delivery of health care items or services.  Accordingly, I conclude that all of the elements required to support a permissive exclusion pursuant to section 1128(b)(1) of the Act are present and the IG had a basis to exclude Petitioner.

B.  The three-year exclusion imposed by the IG falls within a reasonable range.

The regulation governing appeals of exclusions provides that the only issues an administrative law judge may consider are whether a basis for the exclusion exists and whether the length of exclusion imposed is "unreasonable."  42 C.F.R. § 1001.2007(a)(1).  As I have explained above, I have found that the IG had a basis to exclude Petitioner.  I next consider whether the three-year exclusion imposed by the IG is unreasonable.

Section 1128(c)(3)(D) of the Act provides that an exclusion imposed under section 1128(b)(1) of the Act will be for a period of three years, unless the Secretary determines in accordance with published regulations that a shorter period is appropriate because of mitigating circumstances, or that a longer period is appropriate because of aggravating circumstances.  42 C.F.R. § 1001.201(b).  Authorized aggravating and mitigating factors are listed in 42 C.F.R. § 1001.201(b)(2) and (3).  Only the mitigating factors authorized by 42 C.F.R. § 1001.201(b)(3) may be considered to reduce the period of exclusion.  A mitigating factor may justify a reduction in the three-year period of exclusion, but the regulations do not state that it must result in a downward adjustment or how significant such an adjustment should be.  42 C.F.R. § 1001.201(b)(3) (emphasis supplied).

1.  The IG acknowledged and considered the mitigating factor identified at 42 C.F.R. § 1001.201(b)(3)(i).

Pursuant to 42 C.F.R. § 1001.2002(c)(2), the IG is required to state in the notice of exclusion the factors considered in setting the length of the exclusion.  The notice letter in this case states that the IG considered the mitigating factor authorized by 42 C.F.R. § 1001.201(b)(3)(i).  IG Ex. 1.  The regulation provides that it is a mitigating factor if ‒

The individual or entity was convicted of three or fewer offenses, and the entire amount of financial loss (both actual loss and reasonably expected loss) to a government agency or program or to other individuals

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or entities due to the acts that resulted in the conviction and similar acts is less than $5,000[.]

42 C.F.R. § 1001.201(b)(3)(i).

I agree that the cited mitigating factor is present here.  Petitioner was convicted of a single Class A misdemeanor for violating Ind. Code § 35‑48‑4‑14(a)(3).  IG Ex. 5 at 1.  The state court sentenced Petitioner to pay a $1.00 fine, $185.00 in court costs, and a state drug interdiction fee of $200.00.  Id. at 2.  I infer from these fines and costs that the amount of financial losses caused by Petitioner's conduct is less than $5,000.

Although the IG considered the mitigating factor, the IG did not reduce Petitioner's exclusion below the three-year benchmark described in section 1128(c)(3)(D) of the Act.  IG Ex. 1.  Petitioner argues that the facts and circumstances surrounding the mitigating factor justify reducing the period of exclusion to one year.  P. Br. at 8-10.  For the reasons explained in the following section of this decision, I conclude that a three-year exclusion is not unreasonable.

2.  The presence of one mitigating factor does not establish that Petitioner is sufficiently trustworthy to merit a decrease in the three-year exclusion imposed by the IG.

The IG has broad discretion in determining the length of an exclusion, based on the IG's "vast experience" in implementing exclusions.  Craig Richard Wilder, DAB No. 2416 at 8 (2011) (citing 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992)).  So long as the period of exclusion imposed by the IG is within a reasonable range, based on demonstrated criteria, I have no authority to change it.  Joann Fletcher Cash, DAB No. 1725 at 20 (2000) (citing 57 Fed. Reg. at 3321); see also Jeremy Robinson, DAB No. 1905 at 5 (2004).  Although my review of the length of Petitioner's exclusion is de novo, I may not "substitute [my] judgment for that of the IG or . . . determine what period might be 'better.'"  Robert Kolbusz, M.D., DAB No. 2759 at 5 (2017) (citing inter alia, Wilder, DAB No. 2416 at 8).  Rather, I consider only "whether the period of exclusion imposed by the IG was within a reasonable range . . . ."  Wilder, DAB No. 2416 at 8.  In conducting my review, I "weigh the aggravating and mitigating factors" and "evaluate the quality of the circumstances surrounding th[o]se factors."  Vinod Chandrashekhar Patwardhan, M.D., DAB No. 2454 at 6 (2012) (citing Robinson, DAB No. 1905 at 11).

Exclusions imposed pursuant to section 1128 and its implementing regulations serve the remedial purpose of protecting the integrity of federal health care programs from untrustworthy individuals.  See, e.g., Hussein Awada, M.D., DAB No. 2788 at 5 (2017).  Accordingly, I examine evidence concerning mitigating factors, "in order to answer a critical question:  what does the evidence show about an individual's trustworthiness to provide care?"  Tifany A. Vanalen, DAB CR3383 at 2 (2014).

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According to Petitioner, her conviction demonstrates only that she recklessly deviated "from acceptable standards of conduct when she failed to properly document the administration of controlled substances."  P. Br. at 6; see also P. Ex. 4 (¶ 4).  In Petitioner's view, recklessness evidences less culpability than conduct which was knowing or intentional.  P. Br. at 5 (citing Stephen Winters, DAB CR1246 (2004)).  As I have explained above, I am not persuaded that Petitioner's conduct was merely reckless.  See, e.g., text accompanying n.3, supra.  However, even if I concluded that Petitioner's conduct was reckless rather than knowing or intentional, the conduct for which Petitioner was convicted demonstrates that she poses a potentially significant risk to the integrity of health care programs and the safety of program beneficiaries, justifying a three-year exclusion.  See Cash, DAB No. 1725; see also Awada, DAB No. 2788.

Petitioner used IUH's Pyxis machine, to which she had access based on her position of trust as a nurse at Ball Memorial Hospital, to remove controlled substances.  Petitioner failed to document that the controlled substances had been dispensed and administered, and failed to account for .2 mL of a 1 mL vial of a controlled substance that she asserted was destroyed.  These actions had the potential to undermine the integrity of IUH's controlled substances reports, required by federal law.

Moreover, it is not unreasonable to infer that Petitioner may pose a risk to Medicare patients, since she cannot be trusted to properly dispense, administer, and chart the removal and administration of controlled substances.5  At a minimum, Petitioner has admitted in the present proceeding that she was "unfit to practice" because she "just couldn't keep up in a modern, fast-paced[,] acute-care setting."  P. Br. at 10.  In Petitioner's view, this is evidence that she is not untrustworthy.  Id.  I disagree.  Patients must be able to rely on health care professionals to provide care that meets acceptable standards, especially when it comes to dispensing and administering controlled substances.  The very nature of controlled substances makes it imperative that nurses and other health care professionals act as reliable gatekeepers.

Finally, the fact that the Nursing Board placed Petitioner's license on probation based on the same conduct that led to her conviction could represent an aggravating factor under

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42 C.F.R § 1001.201(b)(2)(vii) (individual has been subject to another adverse action by a state board if the adverse action is based on the same set of circumstances as the exclusion).  The IG has not relied on the presence of any aggravating factor in declining to reduce Petitioner's exclusion below three years.  Likewise, I do not rely on this aggravating factor as a basis for my decision that a three-year exclusion falls within a reasonable range.  However, as I have discussed above, the provisions of the administrative complaint and settlement agreement ‒ which Petitioner offered in evidence ‒ provide additional support for the conclusion that the exclusion imposed by the IG is reasonable.

In sum, Petitioner's arguments do not persuade me that the three-year period of exclusion imposed by the IG falls outside a reasonable range.

V.  Conclusion

For the reasons stated above, I affirm the IG's determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for a period of three years as permitted by section 1128(b)(1) and (c)(3)(D) of the Act (42 U.S.C. § 1320a-7(b)(1) and (c)(3)(D)) and 42 C.F.R. § 1001.201.

• 1. The current version of the Social Security Act can be found at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm.  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.
• 2. I focus on the audit results for September 20-28, 2017, because Count I of the Information, to which Petitioner pleaded guilty, charged that, "on four (4) occasions between September 20, 2017 to September 28, 2017, . . . [Petitioner] did recklessly, knowingly or intentionally fail to make, keep, or furnish a record . . . ."  IG Ex. 3 at 1.  See also IG Ex. 4 at 2 (¶ 5).
• 3. This inference is reinforced by P. Exs. 1 and 2.  P. Ex. 1 is a copy of an administrative complaint filed before the Indiana Board of Nursing (Nursing Board).  In the complaint, the Indiana Attorney General's office asked the Nursing Board to take disciplinary action against Petitioner's nursing license based on her conviction.  The administrative complaint charged (among other things) that Petitioner's conviction was evidence that she violated Ind. Code § 25-1-9-4(a)(3) "in that [Petitioner] has knowingly violated any state statute or rule. . . ."  P. Ex. 1 at 5 (Violation III) (emphasis supplied).  P. Ex. 2 is a copy of the Nursing Board's order accepting the settlement agreement between Petitioner and the Attorney General's office.  Pursuant to the settlement agreement, the Nursing Board placed Petitioner's nursing license on probation, based on the stipulation that Petitioner (among other things) had violated Ind. Code § 25-1-9-4(a)(3), as charged in Violation III of the administrative complaint.  P. Ex. 2 at 7.  Thus, in settling the administrative complaint against her nursing license, Petitioner stipulated that she had acted knowingly as to some elements of her conduct.
• 4. Petitioner disputes that she diverted the controlled substances for her own use.  See P. Br. at 6.  If Petitioner had diverted the drugs that she removed but did not chart, her conviction would be related to theft, as well as fraud.  However, I need not conclude that Petitioner diverted drugs to find that her conviction was related to fraud within the meaning of section 1128(b) of the Act.
• 5. This inference is further supported by Petitioner's stipulation that she had violated Ind. Code § 25-1-9-4(a)(3), as charged in the administrative complaint against her nursing license at Violation III.  See P. Ex. 2 at 7; see also P. Ex. 1 at 5.  That portion of the administrative complaint charged that Petitioner failed "to meet the minimal standards of acceptable and prevailing nursing practices, which could jeopardize the health, safety, and welfare of the public. . . ."  P. Ex. 1 at 5.  Violation III further charged that Petitioner "used unsafe judgment, technical skills, or inappropriate interpersonal behaviors in providing nursing care when she failed to document the administration and waste of controlled substances."  Id.