Christopher Lynn Kyzar, DAB CR6008 (2021)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Christopher Lynn Kyzar, a nurse, from participation in Medicare, Medicaid, and all other federal health care programs based on his conviction of felony offenses 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.  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner, and an exclusion for the minimum period of five years is mandatory pursuant to section 1128(c)(3)(B) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(c)(3)(B)). 

I.   Background

In a letter dated July 30, 2021, the IG 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)) for a minimum period of five years, effective 20 days from the date of the letter.  IG Ex. 1 at 1.  The IG explained that Petitioner’s exclusion was based on his “felony convictions (as defined in section 1128(i) of the Act) in the Circuit Court of Rankin County, State of Mississippi, of a criminal offense related to fraud, theft,

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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 omission in a health care program (other than Medicare and a State health care program) operated by, or financed in whole or in part, by any Federal, State, or local government agency.”  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(a)(3).  The IG explained that she had excluded Petitioner pursuant to section 1128(a)(3) of the Act, which mandates the exclusion of an individual who is convicted of a criminal offense relating to, inter alia, fraud, theft, or embezzlement in connection with the delivery of a health care item or service.  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(a)(3).  The IG informed Petitioner that the exclusion was for “the minimum statutory period of 5 years.”  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(c)(3)(B). 

Petitioner, who is pro se, filed a request for an administrative law judge (ALJ) hearing on September 15, 2021.  The following day, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order), and on October 1, 2021, pursuant to 42 C.F.R. § 1005.6, I presided over a telephonic pre-hearing conference.  That same day, I issued an order in which I, inter alia, established a schedule for the filing of briefs and documentary evidence.  

Pursuant to these orders, the IG filed a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  Petitioner filed a response brief (P. Br.), and the IG filed a reply.  In the absence of any objections, I admit IG Exs. 1-5 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.  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. 

II.   Issue

Whether there is a basis for exclusion pursuant to 42 U.S.C. § 1320a-7(a)(3).  See 42 C.F.R. § 1001.2007(a)(1)-(2). 

III.   Jurisdiction

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

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IV.   Findings of Fact, Conclusions of Law, and Analysis1

1. Petitioner was convicted of two felony counts of “Obtaining a Controlled Substance by Fraud” pursuant to Miss. Code Ann. § 41-29-144(1).
2. Petitioner was a hospice nurse case manager and signed for and picked up controlled substances that were filled for hospice patients.
3. Petitioner did not dispense the controlled substances to the hospice patients for whom the prescriptions were filled, but rather, converted the prescriptions for his personal use.
4. Petitioner admitted that he willfully, feloniously, and intentionally acquired or attempted to acquire hydrocodone by fraud.
5. Petitioner’s offenses of “Obtaining a Controlled Substance by Fraud” related to fraud.
6. Petitioner’s offenses of “Obtaining a Controlled Substance by Fraud” were committed in connection with the delivery of a health care item or service.
7. Pursuant to section 1128(a)(3) of the Act, 42 U.S.C. § 1320a-7(a)(3), Petitioner’s felony convictions mandate exclusion from all federal health care programs for a minimum of five years.

The Act requires the exclusion of any individual or entity from participation in Medicare, Medicaid, and all federal health programs based on four types of criminal convictions.2   42 U.S.C. § 1320a-7(a).  In this case, the IG relied on section 1320a-7(a)(3) as the legal basis to exclude Petitioner, which states:

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(a) Mandatory exclusion

The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1320a–7b(f) of this title):

*        *        *

(3) Felony conviction relating to health care fraud

Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program (other than those specifically described in paragraph (1)) operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

42 U.S.C. § 1320a-7(a)(3). 

The IG argues that she properly excluded Petitioner from all federal health care programs based on his convictions for offenses related to fraud, theft, or embezzlement in connection with the delivery of a health care item or service.  IG Br. at 3-7.  As discussed below, the evidence demonstrates that Petitioner was convicted of felony offenses that mandate exclusion from all federal health care programs. 

Petitioner was employed as “the RN case manager”3 for a hospice provider.  IG Ex. 2 at 14.  The hospice provider, through its Director of Nursing, reported that, as relevant here, Petitioner managed the care of two hospice patients.4   IG Ex. 2 at 14.  The hospice provider reported that Petitioner had signed for and picked up six 90-count prescriptions of Norco5 for a patient between September and December 2018, and that this patient did

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not have an order for Norco on either her chart or her medication administration record.  IG Ex. 2 at 14.  The hospice provider reported that after this patient died on January 13, 2019, Petitioner signed for and picked up a 90-count prescription of Norco for another hospice patient on January 31, 2019.  IG Ex. 2 at 14-15.

On July 9, 2019, a grand jury returned a five-count indictment charging that Petitioner “obtain[ed] controlled substance by fraud” in violation of Miss. Code Ann. § 41-29-144(1).  IG Ex. 3.  Each count charged that Petitioner “did willfully, unlawfully, feloniously, knowingly and intentionally acquire or obtain possession or attempt to acquire or obtain possession of a controlled substance, Hydrocodone, by larceny, embezzlement, misrepresentation, fraud, forgery, deception or subterfuge . . . .”  IG Ex. 3 at 1-2. 

On January 8, 2020, Petitioner, with the assistance of counsel, filed a petition to enter a guilty plea.  IG Ex. 4.  Petitioner stated that he “wish[ed] to plead guilty to the charge of Count 1 – Obtaining Controlled Substance by Fraud [and] Count 2 – Obtaining Controlled Substance by Fraud.”  IG Ex. 4 at 1.  Petitioner admitted that he “willfully, feloniously and intentionally in Count I and Count II acquired or attempt[ed] to acquire Hydrocodone by fraud.”  IG Ex. 4 at 3.  Petitioner acknowledged that he was pleading guilty to felony offenses that had a “total exposure” of “10 years” of imprisonment.  IG Ex. 4 at 3; see Miss. Code Ann. § 41-29-144(1); see also Miss. Code Ann. § 41-29-144(3) (maximum period of incarceration of five years); 18 U.S.C. § 3559 (addressing that a felony offense is a crime that is punishable by more than one year of imprisonment).

Petitioner entered a plea of guilty to “Obtaining a Controlled Substance by Fraud in Counts I and II as charged in the Indictment” on January 8, 2020.  IG Ex. 5.  A state judge accepted the guilty plea, imposed judgment, and imposed a sentence that same day.  IG Ex. 5.  The sentence included two consecutive five-year terms of imprisonment, with all but two years suspended with an order for Petitioner’s immediate release to supervised probation through an intensive supervision program.  IG Ex. 5 at 2-3. 

I first conclude that the evidence supports that Petitioner has felony convictions, and that his crimes, at a minimum, related to fraud.  See IG Ex. 4 at 3 (Petitioner’s admission that he “willfully, feloniously, and intentionally . . . acquired or attempt[ed] to acquire Hydrocodone by fraud”); IG Ex. 5 at 1 (judgment of conviction for two counts of “Obtaining a Controlled Substance by Fraud”); see also Charice D. Curtis, DAB No. 2430 at 4 (2011) (“[T]he plain language of section 1128(a)(3) encompasses felonies ‘relating to’ fraud . . . not just to felonies that constitute fraud or one of the other listed offenses.”).

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I also conclude that Petitioner’s felony offenses, which involved his misappropriation of controlled substances that had been filled for hospice patients for whom he was the nurse case manager, were committed in connection with the delivery of a health care item or service.  An exclusion is mandated when the conviction is for an offense “in connection with the delivery of a health care item or service,” meaning that a criminal offense warranting exclusion is not limited only to the actual delivery or provision of such an item or service.  42 U.S.C. § 1320a-7(a)(3).  The Departmental Appeals Board (DAB) has explained that an ALJ does not need to limit review to the elements of an offense, but may consider the extrinsic evidence surrounding the conviction to determine whether it is “relating to” fraud and done “in connection with” the delivery of a health care item or service.  See Narendra M. Patel, M.D., DAB No. 1736 at 6 (2000), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003).  The DAB has also explained that there should be a “common sense connection” between the underlying crime and the delivery of a health care item or service in order to meet the statutory basis for exclusion.  Erik D. DeSimone, R.Ph., DAB No. 1932 at 5 (2004).  

As captured by the self-explanatory caption of Petitioner’s offenses, “Obtaining a Controlled Substance by Fraud,” Petitioner fraudulently obtained controlled substances by abusing his position as a nurse case manager to sign for and pick up controlled substances prescriptions that had been filled for his patients.  See IG Exs. 4, 5.  Petitioner’s offenses were undoubtedly “related to” fraud and were committed “in connection with” the delivery of health care items or services to hospice patients.  See 42 U.S.C. § 1320a-7(a)(3).  Petitioner does not dispute that he was convicted of crimes in which he signed for and picked up prescriptions as a nurse case manager and converted the prescriptions for his own use. 

Petitioner argues that he is “not opposed to an exclusion but the length of the exclusion.”  P. Br.6  However, Congress has determined that an individual who is subject to a mandatory exclusion must be excluded from federal health care programs for no less than five years.  42 U.S.C. § 1320a-7(c)(3)(B).  Congress did not afford either the IG or an ALJ the discretion to impose an exclusion of a shorter duration.  42 U.S.C. § 1320a‑7(c)(3)(B).  Because I uphold the IG’s imposition of an exclusion, I cannot shorten the length of the exclusion to a period of less than five years.  Simply stated, I lack the authority to “[f]ind invalid or refuse to follow Federal statutes or regulations.”  42 C.F.R. § 1005.4(c)(1).  The IG had a legitimate basis to impose an exclusion pursuant to 42 U.S.C. § 1320a-7(a)(3), and therefore, exclusion for a minimum period of five years is mandated pursuant to 42 U.S.C. § 1320a-7(c)(3)(B). 

Petitioner argues that his convictions were “related to an addiction to a controlled substance not healthcare fraud” and that the IG should have imposed an exclusion

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pursuant to 42 U.S.C. § 1320a-7(a)(4) (for a felony conviction relating to a controlled substance) rather than pursuant to section 1320a-7(a)(3).  P. Br.  Petitioner may be correct that a second exclusion authority is applicable, but he has not demonstrated that the IG committed any legal error when she chose one applicable exclusion authority over another exclusion authority. 

Likewise, Petitioner argues that instead of imposing a mandatory exclusion based on his felony convictions, the IG should have imposed a permissive exclusion based on a license revocation, suspension or surrender.7   P. Br.; see 42 U.S.C. § 1320a-7(b)(4).  To the extent Petitioner concedes that his nursing license has been revoked, suspended, or surrendered, the failure of the IG to take such a licensure action into account weighs in Petitioner’s favor.  See 42 C.F.R. § 1001.102(b)(9) (stating that “any other adverse action by any Federal, State or local government agency or board” may be “a basis for lengthening the period of exclusion”). 

Petitioner argues that he is participating in a drug treatment court program and that his felony convictions “will be vacated and expunged” upon completion of the program.  P. Br.  A state court accepted Petitioner’s guilty plea and imposed judgment of conviction, and therefore, Petitioner has been convicted for purposes of an exclusion.  42 U.S.C. § 1320a-7(i)(1).  The courts may seek to further rehabilitative goals, but the IG seeks to protect federal funds and Medicare beneficiaries.  See Henry L. Gupton, DAB No. 2058 at 7 (2007) (explaining that the goals of criminal law “generally involve punishment and rehabilitation by the offender, possibly deterrence of future misconduct . . . and various public policy goals,” whereas exclusions “are civil sanctions, designed to protect beneficiaries of health care programs and the federal fisc.”), aff’d, Gupton v. Leavitt, 575 F.Supp. 2d 874 (E.D. Tenn. 2008); see also Kim J. Rayborn, DAB No. 2248 at 7 (2009) (finding that a petitioner had a criminal conviction for purposes of an exclusion, even though the court, following the petitioner’s completion of a pretrial diversion program, dismissed her case and explicitly stated there was no criminal conviction). 

Petitioner implies that his exclusion is unfair because he has “met many RNs/NPs during [his] recovery that have been convicted of felonies and faced disciplinary action by the [Mississippi] Board of Nursing . . . but none have been contacted by the OIG.”  P. Br.  I am not empowered, in the first instance, to impose an exclusion against a practitioner.  Rather, my role is to determine whether the IG had a legitimate basis to impose an exclusion against a petitioner who has requested a hearing.  Therefore, I cannot remedy any perceived unfairness by excluding another practitioner whom Petitioner believes

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should have been excluded and who has not been the subject of an IG exclusion.8   Further, Congress has mandated that the IG “shall exclude” an individual who has an enumerated conviction, and I expect that the IG, upon receipt of probative evidence that an individual has an enumerated conviction mandating exclusion, will take the appropriate action.  See 42 U.S.C. § 1320a-7(a).

Petitioner also argues that the state nursing board “doesn’t inform nurses of the consequences of pleading guilty . . . [or] that the conviction/disciplinary action would be reported to the [IG]” and that he “would have never plead[ed] guilty to a felony if [he] had been informed by the [nursing board] that the conviction/disciplinary action would be reported to the [IG].”  P. Br.  Petitioner was represented by counsel at the time he entered a guilty plea, and any failure by Petitioner to assess the implications of the convictions on his ability to practice as a nurse is a failure of due diligence. 

Finally, Petitioner argues that he has “been sober since February 26, 2019 . . . and completed every form of treatment that has been recommended or required,” and that “there should be an amendment to Section 1128(a) of the Social Security Act that allows for a deviation from the mandatory exclusion if the person[’]s crimes/disciplinary action are directly related to an addiction.”  P. Br.  Petitioner argues that crimes stemming from drug addiction should not result in a mandatory exclusion, but acknowledges that he has “a better chance of convincing Congress to enact an amendment to this law than this appeal being successful.”  P. Br.  Drug addiction is not a basis for the imposition of a mandatory exclusion, nor is drug possession that does not involve the felonious manufacture, distribution, prescription, or dispensing of a controlled substance.  42 U.S.C. § 1320a-7(a).  The IG did not impose an exclusion because Petitioner struggled with drug addiction or possessed controlled substances; the IG imposed an exclusion because it “shall exclude” an individual such as Petitioner who feloniously abused his position as a nurse case manager to fraudulently obtain controlled substances. 

Congress has determined that a health care provider who commits felony fraud in connection with providing services must be excluded from federal health care programs.  42 U.S.C. § 1320a-7(a)(3).  Petitioner has not identified any legal error in the IG’s determination, and I affirm Petitioner’s exclusion for a minimum period of five years. 

8. The effective date of Petitioner’s exclusion is August 19, 2021.

The effective date of the exclusion, August 19, 2021, is 20 days after the date of the IG’s July 30, 2021 letter, and is established by regulation (42 C.F.R. § 1001.2002(b)); I am bound by that regulation.  42 C.F.R. § 1005.4(c)(1).

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V.   Conclusion

For the foregoing reasons, I affirm the IG’s decision to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of five years, effective August 19, 2021.

• 1.  My findings of fact and conclusions of law are set forth in italics and bold font.
• 2.  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.
• 3.  I refer to Petitioner as a “nurse case manager.”
• 4.  Petitioner did not object to the hospice provider’s memorandum, nor did he dispute the characterization of the facts underlying his criminal conduct.  See IG Br. at 3-6.
• 5.  Norco is a hydrocodone combination product, with hydrocodone being “in a class of medications called opiate (narcotic) analgesics.”  See, e.g., Medline Plus, National Library of Medicine, “Hydrocodone Combination Products,” https://medlineplus.gov/druginfo/meds/a601006.html (last visited December 20, 2021).
• 6.  Because Petitioner’s brief is unpaginated, I do not provide pinpoint citations to his brief.
• 7.  The record does not contain evidence of any licensure action.
• 8.  I add that Petitioner has made no showing that any other practitioner committed an offense that would warrant exclusion.