Colette Krum Kolesar, DAB CR6120 (2022)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Colette Krum Kolesar, from participation in Medicare, Medicaid, and all other federal health care programs based on Petitioner’s misdemeanor conviction for a criminal offense relating to the obstruction of an investigation or audit pursuant to section 1128(b)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(b)(2)).  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner.  An exclusion for a minimum of two years, effective February 20, 2022, is not unreasonable based on the application of a single mitigating factor.

I.  Background

In a letter dated December 31, 2020, the IG issued notice that she had excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act, 42 U.S.C. § 1320a-7b(f), pursuant to section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1).  Petitioner requested a hearing to challenge that exclusion, and shortly after another administrative law judge (ALJ) issued an order for supplemental briefing, the IG withdrew that exclusion on June 30, 2021, and requested dismissal of the request for hearing.  IG Exs. 8, 10, 11.  The ALJ dismissed the request for hearing on July 14, 2021 (IG Ex. 12), and two days later, on July 16, 2021, the IG

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issued notice of her intent to exclude Petitioner under section 1128(b)(2) of the Act, 42 U.S.C. § 1320a-7(b)(2).  IG Ex. 1; see IG Ex. 2 (Petitioner’s response to the July 14, 2021 notice).

In a letter dated January 31, 2022, the IG informed Petitioner that she had imposed an exclusion pursuant to section 1128(b)(2) of the Act, 42 U.S.C. § 1320a-7(b)(2), for a minimum period of two years, effective 20 days from the date of the letter.  IG Ex. 3.  The IG explained that Petitioner’s exclusion was based on her “conviction (as defined in section 1128(i) of the Act) in the United States District Court for the District of Utah, of a criminal offense in connection with the interference with or obstruction of any investigation or audit related to a criminal offense as described in section 1128(a)(1) or 1128(b) of the Act, or the use of funds received, directly or indirectly, from any Federal health care program.  [See] 42 U.S.C. [§] 1320a-7(b)(2), 42 C.F.R. [§] 1001.301.”  IG Ex. 3 at 1.  The IG reported that she had considered the information Petitioner provided in response to its July 2021 letter and applied the following mitigating factor:  “The individual or entity’s cooperation with Federal or State officials resulted in others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs; additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses; or the imposition of a civil monetary penalty against others.”  IG Ex. 3 at 1; see 42 C.F.R. § 1001.301(b)(3)(ii)(A)-(C).

Petitioner submitted a timely request for hearing on March 30, 2022.¹  The Civil Remedies Division issued my standing pre-hearing order on April 1, 2022.  On April 19, 2022, I presided over a telephonic pre-hearing conference, and that same day I issued an order summarizing the discussions that took place during the conference.

The IG filed an informal brief (IG Br.) and a reply brief (IG Reply), along with 13 proposed exhibits (IG Exs. 1-13).  Petitioner filed an informal brief (P. Br.) and six proposed exhibits (P. Exs. 1-6).  In the absence of any objections, I admit all exhibits into the evidentiary record.

Neither party has submitted the written testimony of any witnesses, and therefore, a hearing is unnecessary for the purpose of cross-examination of any witnesses.  Standing Pre‑Hearing Order § 11; see Lena Lasher,DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, “no purpose would be served by holding an in-person hearing . . . .”), aff’d, Lasher v. Dep’t of Health & Human Servs., 369 F.Supp.3d 243 (D.D.C. 2019).  I will decide this case on the written submissions and documentary evidence.

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II.  Issues

Whether there is a basis for exclusion, and if so, whether a minimum period of exclusion of two years is unreasonable.  42 C.F.R. § 1001.2007(a)(1).

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and Analysis²

1. Petitioner was the Director of Nursing at Sunrise Home Health and Hospice, LLC.

2. A June 27, 2018 indictment charged that Petitioner committed the felony offense of “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy,” in violation of 18 U.S.C. § 1519.

3. Following her indictment, Petitioner pleaded guilty to a misdemeanor information charging that she made a false statement in connection with a federal health care program, in violation of 42 U.S.C. § 1320a-7b(a)(2).

4. A federal district judge imposed judgment on November 5, 2019.

5. Petitioner admitted that she “did knowingly and willfully make false statements or representations of a material fact for use in determining rights to federal health care benefits and payments,” and that she “falsified and fabricated medical records including therapy notes from nursing visits . . . in response to an audit initiated by the United States Department of Health and Human Services and the Centers for Medicare [&] Medicaid Services.”

6. Petitioner’s criminal conviction relates to the obstruction of an investigation or audit related to an offense described in section 1128(a)(1) of the Act (an offense related to the delivery of an item or service under Medicare or a state health care program), and therefore, the IG had a legitimate basis to impose an exclusion pursuant to section 1128(b)(2).

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Section 1128(b)(2) of the Act authorizes the IG to impose an exclusion from all federal health care programs under certain conditions.³  Section 1128(b)(2), as codified, states:

(b) PERMISSIVE EXCLUSION.  – The Secretary may exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)):

(2) CONVICTION RELATING TO OBSTRUCTION OF AN INVESTIGATION OR AUDIT – Any individual or entity that has been convicted, under Federal or State law, in connection with the interference with or obstruction of any investigation or audit related to —

(i) any offense described in paragraph (1) or in subsection (a);
(ii) the use of funds received, directly or indirectly, from any Federal health care program (as defined in section 1128B(f)).

42 U.S.C. § 1320a-7(b)(2).  “Subsection (a),” as referenced above, pertains to offenses that are subject to mandatory exclusion, with section 1128(a)(1) addressing offenses that are related to the delivery of an item or service under Medicare or any state health care program.  42 U.S.C. § 1320a-7(a)(1).

The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.301.  Section 1128(c)(3)(D) of the Act (42 U.S.C. § 1320a-7(c)(3)(D)) provides that an exclusion imposed under section 1128(b)(2) of the Act will be for a period of three years, unless the IG determines, in accordance with regulations, that a shorter period is appropriate because of mitigating circumstances or that a longer period is appropriate because of aggravating circumstances.  See 42 C.F.R. § 1001.301(b)(2), (3).

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On June 27, 2018, Petitioner was indicted for the felony offense of “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy,” in violation of 18 U.S.C. § 1519.  See IG Ex. 6 at 2.  Following her indictment, Petitioner cooperated with the investigation and prosecution of another defendant, as detailed by the lead federal prosecutor:

[Petitioner] began cooperating with the United States after she was charged (June 2018) by a federal grand jury with felony destruction, alteration, and falsification of medical records and arrested (August 2018).  These crimes occurred while she was employed as the Director of Nursing at Sunrise Home Health and Hospice.  Attempts to interview [Petitioner] prior to her arrest were unsuccessful as she would not talk to investigators.

She met with me and the FBI on October 31, 2018 pursuant to a limited immunity agreement.  During that meeting she confessed to her involvement in the scheme to defraud Medicare by altering records at the request of her boss at Sunrise . . . .  She stated that she felt compelled and under pressure to falsify medical records at the request of [her boss].  Moreover, she stated she believed [her boss’s] representation to her that medical services had actually been provided, just not documented as required before claims can legally be submitted.

As a result of [Petitioner’s] cooperation, [her boss] eventually entered guilty pleas to felony health care fraud (18 U.S.C. § 1347) and obstruction (18 U.S.C. § 1519).  He was sentenced to 12 months and 1 day [of] incarceration by Judge David Sam.

IG Ex. 2 at 2.

On June 24, 2019, Petitioner entered into a plea agreement with the United States in which she agreed to plead guilty to Count One of a misdemeanor information and the United States agreed to move for leave to dismiss Count One of the felony indictment.  IG Ex. 5 at 4; see IG Ex. 4 (misdemeanor information).  Petitioner “stipulate[d] and [agreed] that the following facts accurately describe [her] conduct” and “provide a basis for the Court to accept [her] guilty plea”:

Between 2016 and 2017, I was employed as the Director of Nursing at Sunrise Home Health & Hospice, LLC.  Beginning in and continuing from

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January through March 2017, in the Central Division of the District of Utah, I, a person who did not personally furnish the federal health care program services related to Medicare, did knowingly and willfully make false statements or representations of a material fact for use in determining rights to federal health care benefits and payments.  Specifically, at the direction of and under pressure from my employer, I falsified and fabricated medical records including therapy notes from nursing visits for patient P.C. in response to an audit initiated by the United States Department of Health and Human Services and the Centers for Medicare [&] Medicaid Services.

IG Ex. 5 at 3.  Petitioner acknowledged that the elements of the offense were satisfied, in that she “knowingly and willfully” made “a materially false statement or representation” that was “[f]or use in determining rights to federal health care benefits and payments.”  IG Ex. 5 at 1.  Petitioner recognized that by entering a guilty plea, she had a maximum exposure of one year of incarceration.  IG Ex. 5 at 2.  Petitioner acknowledged that other collateral actions (such as an exclusion) could result from her conviction, stating:  “I understand and agree that this plea agreement is solely between me and the United States Attorney for the District of Utah and does not bind any other federal, state, or local prosecuting, administrative, or regulatory authorities.”  IG Ex. 5 at 5.

On October 30, 2019, the United States filed its position on sentencing factors, at which time it recommended the imposition of, inter alia, a “high end of the applicable guideline range” term of incarceration of six months.  IG Ex. 6 at 1.  The United States explained that Petitioner had refused to speak with law enforcement prior to her indictment, and was “eventually . . . debriefed with the United States and entered into plea negotiations.”  IG Ex. 6 at 2.  The United States reported that Petitioner “fabricated and altered” records that had been requested as part of an audit, and “sought to exploit an important federal health care program at the cost of the American taxpayer.”  IG Ex. 6 at 3.  The United States recognized Petitioner’s “principal reason” for engaging in criminal conduct was that she “worried about losing her job,” but reported that even after her employment had ended, she “was not cooperative [with federal authorities], and she certainly failed to report the criminal activity to authorities.”  IG Ex. 6 at 3.  The United States further explained that Petitioner “tried to recruit other employees to engage in this fraud, but they (unlike [Petitioner]) refused and quit.”  IG Ex. 6 at 3.

A federal district judge imposed judgment on November 5, 2019, at which time he imposed a sentence that included a 12-month term of probation.  IG Ex. 7 at 2.

Petitioner does not dispute that she was convicted of the criminal offense that is the subject of the exclusion notice or that the IG is authorized to impose an exclusion

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pursuant to section 1128(b)(2) based on her criminal conviction.⁴  P. Br. at 1 (“I am not disputing that I was convicted of an offense for which exclusion may be authorized.”).

Petitioner’s conviction clearly meets the elements set forth in section 1128(b)(2) of the Act.  Petitioner has a federal conviction for making a false statement in connection with a federal health care program, and her criminal offense related to the interference with or obstruction of an audit of an offense that was related to the delivery of an item or service under the Medicare program.  IG Ex. 7 at 1; see 42 U.S.C. § 1320a-7b(2)(i).  Petitioner admitted that she “knowingly and willfully [made] false statements or representations of a material fact for use in determining rights to federal health care benefits and payments,” and that she “falsified and fabricated medical records . . . in response to an audit initiated by the United States Department of Health and Human Services and the Centers for Medicare [&] Medicaid Services.”  It is undisputed that Petitioner’s criminal conviction relates to the obstruction of an investigation or audit related to the delivery of an item or service under the Medicare program.  42 U.S.C. § 1320a-7(b)(2)(i); see 42 U.S.C. § 1320a-7(a)(1).  The IG had a basis to exclude Petitioner pursuant to section 1128(b)(2) of the Act.

7. As relevant here, the length of a permissive exclusion under section 1128(b)(2) is three years, unless a shorter period is appropriate based on the presence of an enumerated mitigating factor (or factors).

8. Although Petitioner refused to cooperate with investigators prior to her indictment, she met with the U.S. Attorney’s Office and Federal Bureau of Investigation on October 31, 2018, pursuant to a limited immunity agreement, at which time she reported that her boss had pressured her to falsify medical records.

9. Prior to indictment, Petitioner’s boss pleaded guilty to felony offenses, and the AUSA attributed his guilty plea to Petitioner’s cooperation.

10. Petitioner’s cooperation with federal law enforcement officials that resulted in the conviction of another defendant satisfies an enumerated mitigating factor, and the IG had a legitimate basis to

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reduce the length of the exclusion by one year based on her application of this mitigating factor.

11. Petitioner has not demonstrated the existence of any other regulatory mitigating factors.

12. Based on the IG’s application of one mitigating factor, a two-year exclusion, effective February 20, 2022, is not unreasonable.

The period of exclusion under section 1128(b)(1) is three years, unless “the Secretary determined 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 U.S.C. § 1320a-7(c)(3)(D); see 42 C.F.R. § 1001.301(b)(1).  An ALJ may consider only the mitigating factors enumerated in 42 C.F.R. § 1001.301(b)(3) when considering a reduction in the three-year period of exclusion.  Id.  The evidence demonstrates that, prior to indictment, another defendant (Petitioner’s boss) entered a guilty plea to two felony offenses.  See P. Ex. 5 at 2.  The IG recognized that Petitioner’s “cooperation in the investigation” of the other defendant “resulted in his guilty plea conviction to felony health fraud . . . and obstruction” (IG Br. at 10), and that this cooperation satisfied the mitigating factor of cooperation with federal or state officials resulting in others being convicted or excluded from Medicare, Medicaid, and all other federal health care programs.⁵  IG Ex. 1 at 1; see 42 C.F.R. § 1001.301(b)(3)(ii)(A).  The IG explained that this mitigating factor warranted a reduction of the period of exclusion to two years.  IG Br. at 10; see IG Ex. 1 at 1.

Petitioner does not argue that the IG improperly considered her cooperation with federal officials that resulted in the guilty plea and conviction of another defendant when she reduced the period of exclusion to two years, and does not claim that this cooperation warranted further reduction of the period of exclusion.  P. Br.  Rather, Petitioner argues that the presence of other mitigating factors, which I will address below, warrants a further reduction in the length of the exclusion.  The available evidence indicates that Petitioner participated in a single debriefing session with federal law enforcement officials, and there is no evidence that she provided further assistance in the prosecution of the other defendant, such as testifying at trial.  IG Ex. 2 at 2 (prosecutor’s statement that Petitioner met with him, along with the FBI, on October 31, 2018); see IG Ex. 6 at 2 (court filing reporting that Petitioner was “eventually” debriefed prior to engaging in plea negotiations).  In the absence of any specific argument, much less evidence, that the IG inappropriately reduced the minimum period of exclusion by one year based on

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Petitioner’s cooperation with federal officials resulting in another defendant’s conviction, there is no basis to disturb the IG’s application of this mitigating factor.

Petitioner argues that the IG did not adequately consider other evidence warranting mitigation of the length of her exclusion.  P. Br.  Petitioner has the burden of proving any mitigating factors.  See 42 C.F.R. § 1005.15(c); Andrew Louis Barnett, DAB No. 2887at 8 (2021), citing Hussein Awada, M.D., DAB No. 2788 at 3 (2017) (“Petitioner had the burden in the ALJ proceeding to prove the existence of any mitigating factor.”); see also Standing Pre-Hearing Order § 4.

Petitioner argues that the IG should have separately applied the mitigating factor of cooperation with law enforcement based on her claimed cooperation with “state auditors.”  P. Br. at 4-5; see IG Ex. 2 at 1 (Petitioner’s response to notice of proposed exclusion).  For purposes of this discussion, I construe that Petitioner is arguing that, based on her claimed cooperation with state officials, the IG should have further reduced the period of exclusion pursuant to 42 C.F.R. § 1001.301(b)(3)(ii)(B) (addressing the mitigating factor of cooperation with federal or state officials resulting in “[a]dditional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses”).  Petitioner, through unsworn statements in her brief, argues that she “reported and assisted the Utah State Auditors of two entities,” and that this assistance “led to the two entities, or two separate companies being shut down.”  P. Br. at 4.  Petitioner argues that this cooperation yielded “[a]dditional cases being investigated, or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses.”  P. Br. at 4; see 42 C.F.R. § 1001.301(b)(3)(ii)(B).  In support of her claim, Petitioner submitted a copy of a September 7, 2017 letter from the State of Utah’s Department of Human Services Office of Licensing informing Sunrise Hospice Home, LLC, that its license had been suspended.  P. Ex. 1.  The letter reported numerous violations documented during a site visit, to include, but not limited to, a misrepresentation of services provided as compared to the original licensing agreement; the unavailability of records, to include staff files; staff without food handler permits preparing meals; and a lack of documentation that staff had the required certification in CPR and first aid.  P. Ex. 1.  Petitioner also cited an unsworn statement by a “working colleague and good friend” discussing that, on an unspecified date or dates (apparently prior to the September 2017 license suspension), Petitioner provided information that her colleague delivered “to the OIG’s office in downtown Salt Lake City to further their case.”  IG. Ex. 2 at 4.

Pursuant to section 1001.301(b)(3)(ii)(B), Petitioner’s claimed cooperation with state officials must have resulted in “[a]dditional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities and weaknesses.”  The IG’s exclusion regulations did not initially include this mitigating factor, and the proposed rule adding this factor explained that “[t]his new mitigating factor would only be taken into consideration in those situations where the law

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enforcement agency validated the person’s information by opening up a case or by writing a report where, for example, a system vulnerability to [the Health Care Financing Administration] or other program agency is identified and a solution recommended.”  62 Fed. Reg. 47,182, 47,186 (Sep. 8, 1997).  Although Petitioner submitted evidence that the Residential Support license for Sunrise Hospice Home, LLC, was suspended, the September 2017 notice of license suspension indicates that the action was largely based on violations observed during an on-site visit, to include food preparation by staff who lacked food handler permits, a lack of documentation of staff CPR/first aid certification, and the unavailability of records, to include staff files.  Compare P. Ex. 1 with P. Br.  Inasmuch as Petitioner claims she cooperated with or otherwise assisted the Office of Licensing, she has not offered evidence that any such cooperation resulted in a state law enforcement agency opening a case or writing a report addressing vulnerabilities and weaknesses.  See 42 C.F.R. § 1001.301(b)(3)(ii)(B).

Notably, the record indicates that Petitioner was not cooperative with investigators until after her indictment in June 2018.  IG Ex. 5 at 3.  In fact, and even despite her cooperation with the investigation of another defendant, the United States sought a sentence of incarceration at the high-end of the applicable guidelines range, informing the court that after Petitioner left her employment, she “was not cooperative, and she certainly failed to report this criminal activity to the authorities” (and attempted to recruit other employees “to engage in this fraud”).  IG Ex. 6 at 1, 3.  It is implausible that Petitioner cooperated with state officials, much less state law enforcement officials, resulting in the Residential Support license suspension in September 2017, yet refused to cooperate with the federal criminal investigation until after her June 2018 indictment.  Petitioner has not demonstrated that she cooperated with state authorities such that additional cases were investigated, or reports were issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses.  42 C.F.R. § 1001.301(b)(3)(ii)(B).

Petitioner also argues that her cooperation resulted in the imposition of a civil monetary penalty (CMP) against another defendant, and therefore, the IG should have applied another mitigating factor.  P. Br. at 6, citing P. Exs. 5, 6; see 42 C.F.R. § 1001.301(b)(3)(ii)(C) (addressing the mitigating factor of cooperation with federal or state officials resulting in “[t]he imposition of a civil monetary penalty against others”).  Petitioner has not submitted any evidence showing that a CMP has been imposed against any individual or entity.  Rather, the evidence cited by Petitioner indicates that, with respect to the other defendant, the district court ordered “restitution . . . payable to the victims in the case.”  P. Ex. 5 at 1; see P. Ex. 6 at 1.  A restitution order is not a CMP.  Compare 18 U.S.C. § 3663 (authorizing federal courts to order a defendant to pay restitution to the victim of a crime) with 42 U.S.C. § 1320a-7a (authorizing the Department of Health and Human Services to impose a CMP within a prescribed range against an individual or entity under specifical circumstances).  There is no evidence that

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the mitigating factor involving cooperation resulting in the imposition of a CMP is applicable.  42 C.F.R. § 1001.301(b)(3)(ii)(C).

Petitioner also argues that “[a]lternative sources of the type of health care items or services” are not available in her geographic area.  P. Br. at 6; see P. Ex. 3.  Pursuant to section 1001.301(b)(3)(iii), the IG can find a mitigating factor is present if “[a]lternative sources of the type of health care items or services furnished by the individual or entity are not available.”  Petitioner has an Associate degree in nursing (IG Ex. 5 at 5), and she has submitted certificates evidencing that she completed a “Lymphatic Practitioner 101” course in 2015 and a “Modern MLD Certification” course in 2020.  See P. Ex. 3.  Other than submitting evidence of her completion of two training courses, Petitioner has not submitted any evidence that alternative sources of nursing care are not available.  This mitigating factor is therefore inapplicable.⁶  42 C.F.R. § 1001.301(b)(3).

Petitioner broadly argues, on an equitable basis, that the IG’s withdrawal of the mandatory exclusion warrants a reduction in the length of the instant exclusion.  Petitioner argues that the IG “improperly” excluded her on December 31, 2020, and the “second I.G. exclusion letter did not indicate that this wrongful exclusion was taken into consideration.”⁷  P. Br. at 2.  There is no statutory or regulatory authority supporting a reduction of the length of an exclusion or other relief on such a basis, and I may only consider the factors listed in 42 C.F.R. § 1001.301(b) when reviewing whether the length of the exclusion is unreasonable.  See 42 U.S.C. § 1320a-7(c)(3)(D); see also 42 C.F.R. §§ 1001.2002(b) (“[t]he exclusion will be effective 20 days from the date of the notice”); 1005.4(c)(1) (ALJ does not have authority to refuse to follow federal regulations).  Neither Congress nor the Department of Health and Human Services has authorized an ALJ to reduce the length of an exclusion based on a circumstance in which the IG has withdrawn an exclusion and re-imposed a new exclusion, and absent such authority, I am not empowered to find that the length of an exclusion is unreasonable on such a basis.

Petitioner does not identify any mitigating factor authorized by the regulations that the IG failed to consider in determining the length of the exclusion.  I conclude that the two-year exclusion is not unreasonable.

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V.  Conclusion

For the foregoing reasons, I affirm the IG’s exclusion of Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of two years, effective February 20, 2022.

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Endnotes

¹  Petitioner’s request for hearing includes appended letters from her criminal defense attorney and the Assistant United States Attorney (AUSA) who prosecuted her case.

²  My findings of fact and conclusions of law are set forth in italics and bold font.

³  While there are slight differences in the wording of Section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical and I refer to them interchangeably.  I further note that the Secretary of the Department of Health and Human Services has delegated to the IG the authority “to suspend or exclude certain health care practitioners and providers of health care services from participation in these programs.”  48 Fed. Reg. 21,662 (May 13, 1983); see also 42 C.F.R. § 1005.1.

⁴  Petitioner’s criminal defense attorney acknowledged that the IG is authorized to impose an exclusion pursuant to section 1128(b)(2) of the Act.  Request for Hearing (appended March 30, 2022 letter from Spencer Rice, stating, “This time, however, OIG appears to be attempting to enforce the right section of the law.”).

⁵  The IG’s notice broadly listed all bases for cooperation with federal and state officials, and was not limited to the conviction or exclusion of others from Medicare, Medicaid, and all other federal health care programs.  IG Ex. 1 at 1.

⁶  To the extent Petitioner submitted a character reference letter attesting to her “professional qualities” as a nurse, such evidence does not address a mitigating factor and is therefore irrelevant.  See P. Ex. 4; 42 C.F.R. § 1001.301(b)(3).

⁷  Petitioner submitted a National Practitioner Data Bank report indicating that the exclusion “was overturned on appeal” and the “action was reversed because the original action should never have been taken.”  P. Ex. 2.  I note that an ALJ did not “overturn” the previous exclusion; the ALJ dismissed the request for hearing after the IG withdrew the exclusion following the issuance of a supplemental briefing order.  IG Exs. 10, 11.