Caemeka Jackson, DAB CR6079 (2022)

DECISION

Petitioner, Caemeka Jackson, was a certified nursing assistant (CNA) who worked in a Florida nursing home.  Petitioner pleaded guilty to one count of petit theft in violation of Chapter 812.014(3)(B), Florida Statutes.  Now, pursuant to section 1128(b)(1) of the Social Security Act (Act),1 the Inspector General (IG) has excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of three years.

For the reasons explained below, I find that Petitioner was convicted of a misdemeanor criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.  The IG was therefore authorized to exclude her from program participation pursuant to section 1128(b)(1) of the Act.  The IG excluded Petitioner for the benchmark period described in section 1128(c)(3)(D) of the Act.  After considering one aggravating and one mitigating factor, I find the three-year exclusion reasonable.

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I.  Background

On or about March 14, 2019, Petitioner was arrested and charged with fraudulent use of a credit card, a felony offense.  IG Exhibit (Ex.) 2 at 1.  In support of the charge, the investigating officer declared that he had reason to believe that, on January 7, 2019, Petitioner had used the credit card of a nursing home resident without the resident’s permission.  Id.  Thereafter, the state attorney filed an information against Petitioner, charging her with fraudulent use of a credit card in violation of Chapter 817.61, Florida Statutes, a third-degree felony.  IG Ex. 3 at 1.  Then, on January 28, 2020, the state amended the charge to petit theft, a misdemeanor.  Id.; see also IG Ex. 5.  Petitioner pleaded no contest to that charge.  IG Exs. 4, 5.  Also on January 28, 2020, the Circuit Court, Sixth Judicial Circuit, in and for Pinellas County Florida (state court), adjudicated Petitioner guilty of petit theft, based on her plea.  IG Ex. 5 at 1.  Petitioner was sentenced to pay $450 in costs and fees, and was given credit for time served.  Id. at 3. 

In a letter dated July 30, 2021, the IG advised Petitioner that she was excluded from participation in Medicare, Medicaid, and all federal health care programs because she had been convicted, in state court, of a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.  IG Ex. 1.  The letter explained that the exclusion was imposed pursuant to section 1128(b)(1) of the Act.  Id.; see also 42 C.F.R. § 1001.201(a).  The IG found that one aggravating factor and one mitigating factor applied to Petitioner’s case and imposed a three-year exclusion.  Id. at 1-2; see also 42 C.F.R. § 1001.201(b)(2)(vii), (b)(3)(i). 

Petitioner timely requested review.  I convened a telephone prehearing conference and issued an Order and Schedule for Filing Briefs and Documentary Evidence (Briefing Order).  Pursuant to the Briefing Order, the IG submitted a brief and seven proposed exhibits (IG Br.; IG Exs. 1-7).  Petitioner filed a document she titled “Statement of Truth.”  Docket Entry # 19 in DAB E-File.  I accept Petitioner’s statement in lieu of a brief.  In this decision, I refer to Petitioner’s statement as her response (P. Resp.).  Petitioner did not offer any exhibits.  The IG waived the opportunity to reply.  Petitioner did not object to the IG’s proposed exhibits.  In the absence of objection, I admit into evidence IG Exs. 1-7. 

I directed the parties to indicate in their briefs whether an in-person hearing would be necessary, and if so, to submit the testimony of any proposed witness as “written direct testimony in the form of an affidavit or declaration.”  Briefing Order ¶ 7.c.ii.  I also explained that I would hold a hearing only if a party offered witness testimony that is relevant and non-cumulative and the opposing party requested cross-examination.  Id. at ¶ 9.  The IG indicated that an in-person hearing is not necessary and submitted no testimony from any proposed witness.  IG Br. at 10-11.  Although Petitioner did not state that a hearing is unnecessary, she did not propose to call any witnesses, nor did she offer

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the written direct testimony of any witness.  P. Resp.  In the absence of any witnesses or requests for cross-examination, a hearing is unnecessary.  Accordingly, I decide this case based on the written record. 

II.  Issues

The issues I must address are whether the IG had a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs; and, if so, 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.  Discussion

1. The IG is authorized to exclude Petitioner pursuant to section 1128(b)(1) of the Act because she was convicted of a misdemeanor offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.2

The Act permits the Secretary of Health and Human Services (Secretary) to exclude from participation in any Federal health care program (as defined in section 1128B(f)) any individual or entity that has been convicted for an offense occurring after the date of enactment of the Health Insurance Portability and Accountability Act of 1996, of a criminal offense consisting of a misdemeanor 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.  Act § 1128(b)(1)(i).  The Secretary has delegated this exclusion authority to the IG.  42 C.F.R. § 1001.201(a).  

1. Petitioner was convicted of a criminal offense after August 21, 1996.3

Petitioner does not deny that she was convicted of a criminal offense.  P. Resp.; Petitioner’s Request for Hearing (RFH).  The IG’s evidence demonstrates that on January

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28, 2020, Petitioner pleaded no contest to petit theft.  IG Ex. 4.  The state court accepted Petitioner’s plea and adjudicated her guilty on January 28, 2020.  IG Ex. 5.  Accordingly, Petitioner was convicted of a criminal offense as that term is defined in subsections 1128(i)(2) and (i)(3) of the Act.

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

Petitioner pleaded no contest and was convicted of petit theft.  IG Ex. 5.  I therefore find that, on its face, Petitioner’s conviction is related to theft, within the meaning of section 1128(b)(1) of the Act.

3. The criminal offense for which Petitioner was convicted is related to the delivery of a health care item or service.

To determine whether an offense is related to the delivery of health care items or services, I am not limited to considering “the bare elements of the offense on which the individual was convicted.”  Aiman M. Hamdan, DAB CR5270 at 3 (2019), aff’d DAB No. 2955 (2019).  Rather, I may consider “‘evidence as to the nature of an offense,’ such as the ‘facts upon which a conviction was predicated.’”  Robert C. Hartnett, DAB No. 2740 at 7 (2016) (quoting Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994)).  The facts underlying Petitioner’s conviction demonstrate that it was related to the delivery of health care items or services.

In support of the warrant for Petitioner’s arrest, the investigating officer declared:

[Petitioner] . . . unlawfully, knowingly, and intentionally use[d] the victim’s credit card without his permission . . . to pay a Duke Energy bill in her boyfriend’s name for $191.50.  The victim is a resident of [E.C.] Nursing Home and [Petitioner] is a CNA there.  The victim is familiar with [Petitioner] as she comes into his room for treatment but he has never allowed her access to his card or to use his card.  However, his card is kept with his personal items by his bed so it is readily accessible . . . [Petitioner] was positively identified by the victim as a person who enters his room frequently.

IG Ex. 2.  

There is a basis for exclusion if an individual’s acts (or omissions) cause the individual to be convicted of an offense and the offense is related to the delivery of an item or service

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under the Medicare or Medicaid program.  Dewayne Franzen, DAB No. 1165 (1990).  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.

In this case, Petitioner’s conviction for petit theft is related to the delivery of health care items or services in much the same way as was the conviction described in Fifer.  As the factual basis for her plea agreement demonstrates, Petitioner worked as a CNA in a nursing home.  Petitioner’s duties included providing treatment in the privacy of residents’ rooms, and she was trusted to create a safe space while providing treatment.  Providing treatment to nursing home residents is a health care service.  Petitioner would not have had access to the victim’s credit card but for her employment at the nursing home in which the victim resided, which gave her specific access to the victim’s room and personal effects.  For these reasons, I conclude that Petitioner’s conviction is related to the delivery of health care items or services.  Therefore, I find the IG had a basis to exclude Petitioner from the Medicare program pursuant to section 1128(b)(1).

Petitioner does not specifically dispute that the IG has a basis to exclude her.  P. Resp.  Instead, she asks for leniency.  Id.  In the following sections of this decision, I explain why Petitioner’s arguments are not a basis to shorten or reverse her period of exclusion.

2. The three-year exclusion imposed by the IG is within a reasonable range.

The regulations governing appeals of exclusions provide 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.

Authorized aggravating and mitigating factors are listed in 42 C.F.R. § 1001.201(b)(2) and (3).  The aggravating factors enumerated in 42 C.F.R. § 1001.201(b)(2) may be a basis to impose an exclusion longer than three years.  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).

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The IG is required to state in the notice of exclusion the factors considered in setting the length of the exclusion.  42 C.F.R. § 1001.2002(c)(2).  The notice letter in this case states that the IG considered the aggravating factor at 42 C.F.R. § 1001.201(b)(2)(vii) and the mitigating factor at 42 C.F.R. § 1001.201(b)(3)(i).  IG Ex. 1 at 1-2.

1. The IG established one aggravating factor.

42 C.F.R. § 1001.201(b)(2)(vii) provides that it is an aggravating factor if–

the individual or entity has been the subject of any other adverse action by any Federal, State, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.

Effective December 17, 2020, the State of Florida Board of Nursing (Board of Nursing) revoked Petitioner’s CNA license based upon Petitioner’s conviction.  IG Ex. 7 at 2, 5-7.  As the Board of Nursing revoked Petitioner’s license because she was convicted of petit theft, I find that the adverse action is based on the same set of circumstances that served as the IG’s basis to exclude Petitioner.  As such, the aggravating factor described at 42 C.F.R. § 1001.201(b)(2)(vii) is established.

2. The IG acknowledged and considered one mitigating factor and Petitioner did not establish any other mitigating factor.

42 C.F.R. § 1001.201(b)(3)(i) provides that it is a mitigating factor if–

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

Petitioner was convicted of one misdemeanor offense.  Petitioner paid the victim restitution in the amount of $191.50, and paid court fees of $450.  IG Ex. 4 at 3; IG Ex. 5 at 3; see also IG Ex. 2 at 1; IG Ex. 3.  I infer from the restitution and fees Petitioner paid that the amount of financial losses caused by Petitioner’s conduct is less than $5,000.  Therefore, I find that the mitigating factor described at 42 C.F.R. § 1001.201(b)(3)(i) is established.

Petitioner did not dispute the IG’s application of the aggravating factor and did not argue that additional mitigating factors should apply.  P. Resp.  I therefore affirm the IG’s determination that one aggravating and one mitigating factor are present here.

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3. Based upon one aggravating factor and one mitigating factor, a three-year exclusion is not unreasonable.

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 10 (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).

The Board of Nursing revoked Petitioner’s CNA license based on her conviction.  IG Ex. 7.  I infer from this action that the Board of Nursing concluded Petitioner was untrustworthy to continue providing health care as a CNA.  Based on the revocation of Petitioner’s CNA license, the IG could have imposed an exclusion of more than three years.  I therefore infer that the IG considered the mitigating factor (the relatively small loss caused by Petitioner’s actions) as, in effect, canceling out the effect of the aggravating factor.  I find this a reasonable approach to weighing the factors.  Accordingly, I find that the three-year exclusion imposed by the IG is within a reasonable range.

3. I cannot consider Petitioner’s argument that she did not take anything from a patient.

In her statement, Petitioner asserts that she “has never taken anything that wasn’t given to [her].”  P. Resp.  This assertion seems intended to convey that she was not guilty of the offense for which she was convicted.  In legal terms, such arguments are referred to as “collateral attacks” on the conviction.  However, the regulations are clear that when appealing an exclusion, an excluded party may not collaterally attack the conviction or civil judgment underlying the exclusion:

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When the exclusion is based on the existence of a criminal conviction or a civil judgment imposing liability by [a] Federal, State or local court, a determination by another Government agency, or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction, civil judgment or determination is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d).  Accordingly, whatever the merits of Petitioner’s arguments regarding the validity of her conviction, the regulations foreclose these arguments.

4. I do not have authority to overturn or shorten Petitioner’s exclusion based on equitable considerations.

Petitioner maintains that she is a good person, has never taken anything “that wasn’t given to her,” cares for the people that come into contact with her, and has completed the requirements of her sentence.  P. Resp.  Petitioner states that the fight to maintain her livelihood, character, and ability to provide for her family has been difficult.  Given the fact that her CNA license was revoked, Petitioner ultimately requests leniency from the three-year exclusionary period.

To the extent that Petitioner is arguing that excluding her from federal health care programs is unfair because she has completed all conditions of her sentence, equitable considerations are not a basis to overturn Petitioner’s exclusion.  Stefan Murza, D.C., DAB No. 2848 at 4 (2018) (administrative law judge may not reduce the period of exclusion based on equitable grounds).  Petitioner also asserts that being excluded has made it difficult for her to earn her livelihood and to provide for her family.  She asks for leniency in this proceeding.  These, too, are equitable arguments that I may not consider.  Donna Rogers, DAB No. 2381 at 6 (2011) (petitioner’s hardship arguments are not relevant).

V.  Conclusion

For the reasons explained above, I conclude that the IG was authorized to exclude Petitioner pursuant to section 1128(b)(1) of the Act due to her misdemeanor conviction for a criminal offense related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.  The benchmark period of exclusion for an individual excluded

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pursuant to section 1128(b)(1) is three years.  Given the presence of one aggravating factor and one mitigating factor, a three-year exclusion falls within a reasonable range.

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.
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2. My findings of fact and conclusions of law appear as headings in bold italic type.
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3. This is the date of enactment of the Health Insurance Portability and Accountability Act of 1996.  100 Stat. 1936.
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