Merry Forsythe, DAB CR5165 (2018)

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Merry Forsythe, from participating in the Medicare program and other federally funded health care programs for a period of at least five years.

I.  Background

In support of its determination to exclude, the I.G. filed six proposed exhibits that are identified as I.G. Ex. 1-I.G. Ex. 6 and a brief.  Petitioner filed a statement in response to the I.G.’s filing.  She filed no exhibits.  I receive I.G. Ex. 1-I.G. Ex. 6 into the record.

II.  Issues, Findings of Fact, and Conclusions of Law

A. Issues

The issues are whether the I.G. is authorized to exclude Petitioner and whether the five‑year exclusion imposed by the I.G. is mandatory.

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B. Findings of Fact and Conclusions of Law

The I.G. excluded Petitioner pursuant to the authority conferred by section 1128(a)(3) of the Social Security Act (Act).  This section mandates the exclusion of any individual convicted of a felony that is 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.

I find the following facts.  Petitioner was employed as a nurse at a health care facility in Illinois.  I.G. Ex. 5.  On July 13, 2017, Petitioner was charged with two felonies under Illinois State law, consisting of unlawful possession and unlawful acquisition of a controlled substance (Hydrocodone).  I.G. Ex. 2.  The felony charges against Petitioner were the consequence of her admission that she had unlawfully diverted Hydrocodone from two of the residents at the facility at which she was employed.  I.G. Ex. 6.  Petitioner pled guilty to one count of unlawful possession of a controlled substance.  I.G. Ex. 3.  She was sentenced to participate in a controlled substance first offender program.  I.G. Ex. 3; I.G. Ex. 4.  Upon successful completion of this program, Petitioner’s conviction may be expunged.

Petitioner clearly was convicted of a crime falling within the reach of section 1128(a)(3) of the Act.  Her unlawful possession of a controlled substance was directly related to her theft of that substance because she would not have been in possession of it but for having stolen it.  Thus, she was convicted of a felony relating to theft.  Furthermore, Petitioner’s crime occurred in connection with the delivery of a health care item or service in that it was based on theft of a controlled substance at a health care facility at which Petitioner was employed and diversion of that controlled substance from the residents for whom it was prescribed.

Although Petitioner is participating in a first offender program and her conviction may be expunged upon successful completion of that program, she nevertheless stands convicted of a felony within the meaning of the Act.  The Act defines a conviction to include the situation where a party pleads guilty to a crime but is allowed to participate in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.  Act § 1128(i)(3), (4).

The exclusion in this case – five years – is for the minimum period allowed for exclusions imposed pursuant to section 1128(a)(3) of the Act.  Act § 1128(c)(3)(B).  Consequently, the length of the exclusion in this case is reasonable as a matter of law.

Petitioner offered neither evidence nor argument that rebuts the I.G.’s authority to exclude her or the mandatory exclusion that the I.G. imposed.  She argues that she was not convicted of theft but rather of unlawful possession of a controlled substance.  However, Petitioner was convicted of a felony falling within the reach of section

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1128(a)(3) of the Act, even if her conviction was not for theft of a controlled substance but was for possession of that substance.  Petitioner would not have been in unlawful possession of a controlled substance but for her theft of that substance.  Consequently, her conviction is related to theft.

Petitioner also points to the possible eventual expungement of her conviction.  However, and as I explain, Petitioner stands convicted of a felony within the meaning of the Act because the Act’s definition of a conviction encompasses precisely the arrangement that Petitioner entered into in her plea agreement.