Diane Marie Krupka a/k/a Diane Marie Salak, DAB CR5621 (2020)

DECISION

Petitioner, Diane Marie Krupka, was a registered nurse who worked for a home health agency in Cleveland, Ohio.  She stole Percocet tablets from the home of a patient to use in a murder plot.  She was caught, arrested, and pled guilty to three felonies:  theft, illegal processing of drug documents, and drug possession.  Based on this, the Inspector General (IG) has excluded her for five years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(3) of the Social Security Act (Act).  Petitioner appeals the exclusion.  For the reasons discussed below, I find that the IG properly excluded Petitioner Krupka and that the statute mandates a minimum five-year exclusion.

Background

In a letter dated August 30, 2019, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five years because she had been convicted of a felony 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; or with respect to any act or

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omission in a health care program (other than Medicare or a state health care program) operated by, or financed, in whole or in part, by any federal, state, or local government agency.  The letter explained that section 1128(a)(3) of the Act authorizes the exclusion.  IG Ex. 1.

Petitioner timely requested review.

The IG submitted a written argument (IG Br.) and four exhibits (IG Exs. 1-4).  Petitioner responded to the IG's brief by filing a short form brief (P. Br.) and an additional written argument (P. Supp. Br.), along with seven exhibits (P. Exs. 1-7).  The IG submitted a reply (IG Reply).

In the absence of any objections, I admit into evidence IG Exs. 1-4 and P. Exs. 1-7.

I directed the parties to indicate whether an in-person hearing would be necessary.  See, e.g., Informal Brief of Petitioner at 2 (blank copy) (Departmental Appeals Board Electronic Filing System document #12a).  The IG indicated that it would not be necessary.  IG Br. at 7.  Petitioner did not respond to the question but has not indicated that an in-person hearing is required.  In any event, I also advised the parties that a hearing to cross-examine witnesses would be necessary "only if a party files admissible written direct testimony," and the opposing party asks to cross-examine.  Order and Schedule for Filing Briefs at 4 (¶ 10) (December 6, 2019).  Neither party proposes any witnesses, so an in-person hearing would serve no purpose, and I may decide the case based on the written record.

Discussion

Petitioner must be excluded from program participation for a minimum of five years because she was convicted of a felony relating to theft in connection with the delivery of a health care item or service.1

Under section 1128(a)(3) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted under federal or state law of felony fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service.  42 C.F.R. § 1001.101(c)(1).

Petitioner Krupka was a registered nurse, licensed in the State of Ohio.  P. Ex. 2 at 3.  On or about October 20, 2016, while working for a home health agency, she took about 25 Percocet pills from the home of a patient.  She was planning "to liquefy the Percocet and inject it into [her] ex-husband's beer cans for him to ingest, overdose and die."  IG Ex. 4

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at 12, 15, 17.  However, her home health patient noticed that his pills were missing and reported Petitioner to her employer.  IG Ex. 4 at 15.  She was eventually charged with three felonies:  theft, in violation of Ohio Rev. Code § 2913.02(A)(2); illegal processing of drug documents, in violation of Ohio Rev. Code § 2925.23(A); and drug possession, in violation of Ohio Rev. Code § 2925.11(A).  IG Ex. 3.

On June 21, 2018, Petitioner pled guilty to all three charges.  IG Ex. 2.  The Ohio Court of Common Pleas accepted her guilty pleas but granted her motion for intervention in lieu of conviction, pursuant to Ohio Rev. Code § 2951.041.  The Court placed her under the supervision of the probation department for one year.  It ordered her to comply with "the standard conditions of community control," abstain from the use of illegal drugs and alcohol, and to submit to regular and random testing for drugs and alcohol.  She was to pay supervision fees at a rate of $20 a month.  She was required to attend three AA/NA meetings per week, obtain a sponsor and home group, receive psychiatric and psychological counseling, and to follow requirements set by the Ohio Board of Nursing.  IG Ex. 2.

Petitioner's felony convictions were plainly related to theft in connection with the delivery of a health care item (drugs).  She stole the narcotics that her employer had supplied to her home health patient.  She is therefore subject to exclusion.

Petitioner's equitable arguments.  Petitioner, however, characterizes section 1128 and its implementing regulations as "draconian" and argues, primarily based on equitable grounds, that she should not be subject to the exclusion.  I am bound by the statute and regulations and have no authority to disregard those authorities in order to grant equitable relief.  W. Scott Harkonen, M.D., DAB No. 2485 at 22 (2012), aff'd, Harkonen v. Sebelius, No. C13-0071 PJH, 2013 WL 5734918 (N.D. Cal. 2013); Salvacion Lee, M.D., DAB No. 1850 (2002).

Moreover, reading Petitioner's argument is like stepping through the looking-glass.  She admits that her motive for the theft was to murder her ex-husband, but intimates that he had it coming because he was abusive.  She further justifies her felonious activities by complaining that she was required by the divorce court to give her former spouse some furniture and to pay him "financially and ruinously unfair alimony."  P. Supp. Br. at 2.

Petitioner characterizes her plot as nothing more than "evil homicidal thoughts towards her abusive, alcoholic husband."  P. Supp. Br. at 3 (emphasis in original).  In fact, she had more than thoughts; she had a thought-out plan that she acted on when she stole the pills.2

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She disposed of the drugs after her employer called her into the office in response to the patient complaint.  She then repeatedly denied stealing the drugs and admitted to marijuana use only.  IG Ex. 4 at 16-17.3  After about an hour of questioning, she finally admitted that she had stolen the Percocet.  IG Ex. 4 at 17.

Remarkably, Petitioner defends the theft, in part, by claiming that the patient was no longer taking the drug anyway.  P. Supp. Br. at 2.  According to Petitioner, removing the Percocet from his possession "was arguably a good move in furtherance of his health and safety."  P. Supp. Br. at 3.4  And I do not agree that her actions did not harm the patient, who was plainly upset when he called to report the theft:  "My heart is racing, and I bet my blood pressure is through the roof."  IG Ex. 4 at 15.

Petitioner points out that the Ohio Board of Nursing rejected its hearing examiner's recommendation that her nursing license be permanently revoked.  Instead, the nursing board suspended it indefinitely, subject to her fulfilling certain conditions for reinstatement.  IG Ex. 4 at 3-8.  On March 18, 2020, the nursing board approved reinstatement of Petitioner's license subject to multiple permanent practice restrictions.  P. Ex. 3; IG Ex. 4 at 7.  She may not practice:  1) in a patient's residence; 2) for staffing agencies or pools; 3) for an individual or group of individuals who directly engage her to provide nursing services for compensation or as a volunteer; or 4) as an independent contractor or for locum tenens assignment.  She may not function in a position or employment where the job duties or requirements involve management of nursing, or supervising and evaluating nursing practice.  IG Ex. 4 at 7.

That the nursing board suspended her license and imposed permanent restrictions does not vindicate Petitioner.  Rather, it is an aggravating factor that would have justified increasing Petitioner's period of exclusion beyond the mandatory five-year minimum.  42 C.F.R. § 1001.102(b)(9).

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Petitioner's "jurisdictional" argument.  Petitioner suggests that I lack jurisdiction to decide this case because the IG presented no evidence that Petitioner was participating

in any health care program (other than title XVII [sic] or any state [sic] "as set forth in Paragraph (a)(i)[sic]), "operated by or financed in whole or in part by any Federal, State [or] local government agency."  Nor is there any proof presented by the I.G. of any item or service rendered (per paragraph (a)(K) [sic]) under title XVIII or any state health care program.

P. Supp. Br. at 4.  Petitioner's argument here is confusing.  Not only does it appear to be riddled with typos, she seems to have conflated two separate bases for exclusion:  section 1128(a)(1), which requires a program-related crime; and section 1128(a)(3), which does not.  In any event, the relationship between federal or state health care programs and Petitioner's crimes is not a jurisdictional issue.  I am authorized to review both types of IG exclusions.  42 C.F.R. § 1001.2007.

Petitioner's "conviction" argument.  Petitioner also argues that she was not convicted because the charges against her were ultimately dismissed.  P. Br at 4-5.

The statute and regulations provide that a person is "convicted" when:  1) "a judgment of conviction has been entered" regardless of whether that judgment has been (or could be) expunged; 2) there has been a finding of guilt; 3) a plea of guilty or nolo contendere has been accepted by the court; or 4) the individual has entered into participation in a first offender, deferred adjudication, or other arrangement or program where the judgment of conviction has been withheld.  Act § 1128(i); 42 C.F.R. § 1001.2(a).

The Departmental Appeals Board characterizes as "well established" the principle that a "conviction" includes "diverted, deferred and expunged convictions regardless of whether state law treats such actions as a conviction."  Henry L. Gupton, DAB No. 2058 at 8 (2007), aff'd sub nom. Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).  For sound reasons, Congress deliberately defined "conviction" broadly to assure that exclusions would not hinge on state criminal justice policies.  Funmilola Mary Taiwo, DAB No. 2995 at 6 (2020); Gupton, DAB No. 2058 at 7-8.

The rationale for the different meanings of "conviction" for state criminal law versus federal exclusion purposes follows from the distinct goals involved.  The goals of criminal law generally involve punishment and rehabilitation of the offender, possibly deterrence of future misconduct by the same or other persons, and various public policy goals.  [footnote omitted]  Exclusions imposed by the I.G., by contrast, are civil sanctions, designed to protect the

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beneficiaries of health care programs and the federal fisc, and are thus remedial in nature rather than primarily punitive or deterrent . . . . In the effort to protect both beneficiaries and funds, Congress could logically conclude that it was better to exclude providers whose involvement in the criminal system raised serious concerns about their integrity and trustworthiness, even if they were not subjected to criminal sanctions for reasons of state policy.

Gupton, DAB No. 2058 at 7-8.

Here, Petitioner pled guilty to three felonies, and the court accepted her pleas.  She was required to participate in drug treatment programs and to meet other conditions.  IG Ex. 2.  Had she failed to comply with the conditions imposed, the Court was authorized to find her guilty and "impose an appropriate sanction."  Ohio Rev. Code § 2951.041(F).  She was thus convicted within the meaning of the statute and regulations.  Act § 1128(i)(3) and (4); 42 C.F.R. § 1001.2(c) and (d).

Constitutional challenges.  Finally, I have no authority to review Petitioner's Constitutional challenges.  Taiwo, DAB No. 2995 at 9-10.

Indeed, Petitioner all but concedes that she is not entitled to relief in this forum, but intimates that she may ultimately prevail in federal court.  P. Supp. Br. at 2.  As the Board pointed out in Taiwo, such challenges have not met with much success.  Taiwo, DAB No. 2995 at 10.  Moreover, Petitioner's scheme, her apparent lack of remorse, and her disregard for her patient's welfare raise serious concerns about her integrity and trustworthiness, even though, for reasons that are hard to fathom, she was not subjected to serious criminal sanctions.

Conclusion

Because Petitioner's convictions fall squarely within the statutory and regulatory definition of "conviction," she is subject to exclusion.  An exclusion brought under section 1128(a)(3) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).  I therefore sustain the five-year exclusion.

• 1. I make this one finding of fact/conclusion of law.
• 2. Petitioner admitted to the nursing board that she had researched and considered other creative means of dispatching her ex-husband:  poisonous rhubarb leaves; and putting gorilla glue in syrup, "which expands and hardens in the stomach."  She settled on Percocet-poisoning because she decided that she was less likely to be suspected of the crime, since she herself was allergic to the drug.  IG Ex. 4 at 14-15.
• 3. Petitioner's determined efforts to evade drug testing hardly do her credit.  Not only did she initially refuse to provide a urine sample but, when forced to do so, she dropped the urine as she handed it to the lab technician.  Later, she conspired with her son to leave a second bottle of urine under the sink in the testing lab's bathroom.  But the effort was so ham-fisted, that lab personnel were able to thwart it.  Not surprisingly, Petitioner tested positive for marijuana.  IG Ex. 4 at 15-16
• 4. Petitioner gratuitously describes the drug as "unprescribed."  P. Supp. Br. at 3.  This is not so.  The record shows that the home health agency supplied the drug to the patient.  IG Ex. 3. Home health agencies do not supply narcotics without a prescription.  42 C.F.R. § 484.60(b)(1).