Brianna Marie Duffy, DAB CR6113 (2022)

DECISION

I uphold the seven-year length of exclusion that the Inspector General of the United States Department of Health and Human Services (IG) imposed on Brianna Marie Duffy (Petitioner).

I.  Background

In a September 30, 2021 notice, the IG informed Petitioner that she was being excluded from participation in all federal health care programs under section 1128(a)(3) of the Social Security Act (42 U.S.C. § 1320a-7(a)(3)) for a period of 10 years.  IG Ex. 1 at 1.  The IG imposed this exclusion due to a felony conviction in the United States District Court for the District of Massachusetts (District Court).  IG Ex. 1 at 1.  The IG's notice also advised that the minimum length of exclusion permitted under law was five years; however, the notice also indicated that the IG was imposing a longer length of exclusion because Petitioner was sentenced to 60 months of incarceration.  IG Ex. 1 at 2.

Petitioner filed a request for an administrative law judge hearing, which the Civil Remedies Division received on March 21, 2022, to dispute the length of exclusion that

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the IG imposed.  Petitioner stated in the hearing request that receipt of the IG notice was delayed until January 2022 because Petitioner was incarcerated and no longer lived at the address to which the IG sent the notice.  Further, Petitioner stated that she did not contest the legal basis for the exclusion or that she was sentenced to 60 months of incarceration.  Petitioner argued that the length of exclusion was unreasonable because she had not been convicted before and that the exclusion should terminate when Petitioner's nursing license is reinstated.

On March 24, 2022, the Civil Remedies Division acknowledged receipt of the hearing request, notified the parties that I set a telephonic prehearing conference for April 13, 2022, and issued my Standing Prehearing Order (SPO).  On April 5, 2022, I rescheduled the prehearing conference to April 22, 2022.

At the April 22, 2022 telephonic prehearing conference, Petitioner's counsel confirmed that Petitioner was not challenging the imposition of an exclusion but only the length of exclusion that exceeds the minimum five years.  I also established a prehearing submission schedule.  See April 22, 2022 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.

On May 10, 2022, the IG submitted a brief (IG Br.) together with four exhibits (IG Exs. 1-4).  On June 2, 2022, Petitioner submitted a brief (P. Br.) and two exhibits (P. Exs. 1-2).

In her brief, for the first time in this proceeding, Petitioner asserted that the length of exclusion ought to be shortened based on her history of a mental and/or emotional condition that reduced the length of her sentence of incarceration.  P. Br. at 3.

On June 10, 2022, the IG filed a reply brief (IG Reply) along with three additional exhibits (IG Exs. 5-7) related to Petitioner's new argument in favor of a reduced length of exclusion.  IG Exhibit 7 is a June 7, 2022 letter from the IG to Petitioner modifying the September 30, 2021 IG notice by reducing the length of exclusion to seven years.  The IG stated the following:

The revised exclusion period set forth in this letter is due to new information indicating that the following mitigating factor is present:  "The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual's culpability."  See 42 C.F.R. 1001.102(c)(2).

IG Ex. 7.  Petitioner did not file a response or objection to the IG's proposed exhibits.

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II.  Admission of Evidence and Decision on the Written Record

I admit IG Exhibits 1 through 7 and Petitioner Exhibits 1 and 2 into the record because neither party objected to any of them.  SPO ¶ 12; see 42 C.F.R. §§ 1005.8(b), (c), 1005.17(h).

The parties both indicated that they have no witnesses to offer in this case and neither believes an oral hearing is necessary.  IG Br. at 8; P. Br. at 2.  Therefore, I decide this case based on the written record.  See SPO ¶¶ 11, 16; see 42 C.F.R. § 1005.16(b).

III.  Issue

Petitioner conceded that she has been convicted of a crime requiring exclusion from participation in Federal healthcare programs for at least five years.  Hearing Req. at 1; P. Br. at 1-3; 42 U.S.C. § 1320a-7(a)(3).  Therefore, the only remaining issue I may consider in this case is whether the length of the exclusion imposed by the IG is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).

IV.  Jurisdiction

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

V.  Findings of Fact

1. Petitioner was licensed in the state of Massachusetts as a registered nurse.  P. Ex. 1 at 1.
2. In July 2019, a federal grand jury indicted Petitioner for two offenses.  IG Ex. 2.
   1. Count One alleged that Petitioner violated 18 U.S.C. § 1365(a)(4) (i.e., Tampering with a Consumer Product).  That count alleged that, from on or about March 17, 2019 through March 18, 2019, Petitioner acted with reckless disregard for the risk to another person when she tampered with a bottle of morphine sulfate prescribed to an individual (Victim 2) by removing the morphine sulfate from the bottle and replacing the removed liquid with another solution.  The Indictment stated that Petitioner did this when she was working at a nursing facility and was to administer morphine to an 89-year-old hospice patient who received morphine every four hours for pain control.  The Indictment charged that the diluted solution given to Victim 2 caused Victim 2 unnecessary pain and bodily injury.  IG Ex. 2 at 2-4.

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2. Count Two alleged that Petitioner violated 21 U.S.C. § 843(a)(3) (i.e., Acquiring a Controlled Substance by Fraud, Deception, and Subterfuge).  That count alleged that, while working as a nurse at a nursing facility, a 68-year-old resident (i.e., Victim 1) was prescribed morphine.  On or about May 5, 2017, two bottles of morphine were delivered to the facility; however, the bottles were not yet administered to Victim 1 by May 15, 2017, when she was transferred to a hospital.  From about May 5, 2017 through July 18, 2017, Petitioner removed morphine from the bottles and added another liquid to the bottles in its place.  Testing revealed that the diluted bottles contained 1.2% and 2.5% of the prescribed morphine concentration, respectively.  On or about July 18, 2017, Petitioner tested positive for morphine, barbiturates, and benzodiazepines, and was terminated from her nursing position.  IG Ex. 2 at 2, 5.

3. In April 2020, Petitioner signed a plea agreement with federal prosecutors in which she agreed to plead guilty to Counts One and Two in the Indictment.  IG Ex. 3 at 1, 6.
4. Federal prosecutors requested that the District Court sentence Petitioner to 70 months of incarceration, which was the lowest sentence under sentencing guidelines.  IG Ex. 6 at 1.  In support of this request, the prosecutor stated that Petitioner stole morphine from at least 17 different bottles belonging to 16 patients at six different facilities over a two-year period.  IG Ex. 6 at 1-2.  Victim 2, described in Count One of the Indictment, told a nurse that, after unknowingly receiving diluted morphine, that the morphine did not work.  A laboratory test of the morphine in Victim 2's bottle showed that it only had 26% of the prescribed morphine content.  IG Ex. 6 at 3.  The prosecutor also stated that Petitioner was previously convicted of two felonies, including Negligent Operation of a Motor Vehicle.  IG Ex. 6 at 6.
5. Petitioner requested that the District Court sentence Petitioner to incarceration for 33 to 41 months in duration.  P. Ex. 2 at 3.
   1. In making this request, Petitioner asserted that Victim 2, the 89-year-old hospice patient, was not a "vulnerable victim."  P. Ex. 2 at 3.  Although Petitioner admitted that she was convicted of two criminal offenses involving driving a vehicle, Petitioner asserted that they should not be considered in sentencing.  P. Ex. 2 at 4-5.
   2. Petitioner also supported her sentencing request by asserting that Petitioner had a documented mental/emotional condition because she was a victim of multiple instances of sexual assault by two separate perpetrators.  Petitioner provided medical records to the District Court showing that, before her

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crimes occurred, Petitioner reported the assaults to medical providers.  Both assaults occurred over extended periods of time while Petitioner was a pre-teen and a teen.  Petitioner informed the District Court that she was diagnosed with "a serious mental health disorder," bipolar illness, and post-traumatic stress disorder.  Petitioner is also an opioid addict.  P. Ex. 2 at 5-6, 8; see also P. Ex. 2 at 16, 19, 22, 24, 29, 30, 33.

6. On September 14, 2020, the District Court held a hearing to state the findings related to sentencing.  IG Ex. 5.
   1. The District Court sentenced Petitioner to 60 months of incarceration.  IG Ex. 5 at 2.
   2. The District Court stated that Petitioner's crimes were appalling because they involved taking pain medication away from someone in unremitting pain.  "Whatever your goal was in seeking such an honorable profession as the nursing profession, you perverted that."  IG Ex. 5 at 2.
   3. The District Court stated that the prosecutor's recommended sentence was correct but "I went less than that . . . because of your mental health illness" and "a serious and compelling addiction."  IG Ex. 5 at 3.
7. A September 29, 2020, Judgment in Criminal Case provided for the following:
   1. The District Court adjudged Petitioner guilty of Counts One and Two in the Indictment for violating 18 U.S.C. § 1365(a)(4) (Tampering with a Consumer Product) and 21 U.S.C. § 843(a)(3) (Acquiring a Controlled Substance by Fraud, Deception, and Subterfuge).  IG Ex. 4 at 1.
   2. The District Court sentenced Petitioner to imprisonment for 60 months.  IG Ex. 4 at 2.
8. On February 23, 2021, Petitioner signed a Consent Agreement for Voluntary Surrender in which she agreed to surrender her Massachusetts nursing license for a minimum of five years.  P. Ex. 1 at 2, 5.  In doing so, she acknowledged her conduct in tampering with the morphine intended for a patient in July 2017 violated state nursing standards of conduct.  P. Ex. 1 at 2.

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VI.  Conclusions of Law and Analysis

The Secretary of Health and Human Services (Secretary) must exclude from participation in any federal health care program:

Any individual or entity that has been convicted for an offense which occurred after the date of the enactment of the Health Insurance Portability and Accountability Act of 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).

If an individual has been convicted of a crime that requires mandatory exclusion, then the Secretary must exclude the individual for at least five years.  42 U.S.C. § 1320a‑7(c)(3)(B).  However, the Secretary established, by regulation, a list of aggravating and mitigating factors that are to be considered in each case to determine whether the length of a mandatory exclusion should exceed five years.  See 42 C.F.R. § 1001.102(b)-(c).

The regulations state that the preponderance of the evidence standard of proof is employed in exclusion cases.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  The regulations provide administrative law judges with the discretion to allocate who has the burden of proof in most exclusion cases.  42 C.F.R. § 1005.15(c).  I gave notice at the beginning of these proceedings that the IG had the burden of proving the existence of all alleged aggravating factors and that Petitioner had the burden of proving all mitigating factors.  SPO ¶ 6.

When reviewing the length of exclusion, an administrative law judge may only reduce the length of exclusion when the length imposed by the IG is "unreasonable."  42 C.F.R. § 1001.2007(a)(1)(ii).

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1. Petitioner is subject to a mandatory exclusion for at least five years under 42 U.S.C. § 1320a-7(a)(3).

Petitioner does not dispute that she must be excluded for a minimum of five years under 42 U.S.C. § 1320a-7(a)(3).  A review of the record indicates that there is no doubt that Petitioner is subject to a mandatory five-year exclusion.

2. The IG appropriately considered as an aggravating factor that the District Court sentenced Petitioner to incarceration for 60 months.

The regulations state than an aggravating factor to increase the length of an exclusion occurs when "[t]he sentence imposed by the court included incarceration."  42 C.F.R. § 1001.102(b)(5).

The record is clear, and Petitioner concedes, that she was sentenced to 60 months of incarceration.  Therefore, this aggravating factor was appropriately considered in this case.

3. The IG concedes that a mitigating factor, i.e., the District Court determined that Petitioner had a mental, emotional, or physical condition that reduced her culpability, applies in this case.

The regulations state that a mitigating factor to reduce the length of an exclusion that is more than five years in length is the following:

The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual's culpability.

42 C.F.R. § 1001.102(c)(2).

The IG concedes that the record shows that the District Court specifically found that Petitioner had mental, emotional, and/or physical conditions during the commission of her crimes and that it reduced the length of incarceration based on those conditions.

4. The seven-year length of Petitioner's exclusion is not unreasonable based on the aggravating factor and mitigating factor in this case.

When considering the length of exclusion, "[t]he evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those

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factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case."  Farzana Begum, M.D., DAB No. 2726 at 2 (2016) (emphasis added).  Further, the general purpose of an exclusion under 42 U.S.C. § 1320a-7 is "to protect federal health care programs and the programs' beneficiaries and recipients from untrustworthy providers."  Susan Malady, R.N., DAB No. 1816 at 9 (2002).  Ultimately, I must decide whether the seven-year exclusion is unreasonable (i.e., is it within a reasonable range for the length of exclusion based on the relevant factors?).  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992).

In the present case, the IG concluded that a ten-year length of exclusion was warranted when considering only the aggravating factor in this case.  After Petitioner raised the mitigating factor, the IG reduced the exclusion to a seven-year exclusion.  Therefore, the IG determined that Petitioner's exclusion should only last two years longer than the minimum mandatory five-year length.

The aggravating factor in this case is very strong.  Petitioner was sentenced to 60 months of incarceration.  The Departmental Appeals Board (DAB) has concluded that a prison sentence of as little as nine months is to be considered a "relatively substantial" period of incarceration for exclusion purposes.  Jason Hollady, M.D., DAB No. 1855 at 12 (2002).  Petitioner's 60‑month sentence is more than six times longer than that and represents a substantial period, which indicates the seriousness of Petitioner's offenses.

Further, absent Petitioner's mental, emotional, and/or physical conditions, the District Court made it clear that a 70-month sentence was correct.  Therefore, while Petitioner only received a 60-month sentence, her crimes were otherwise consistent with a 70-month sentence.  The District Court briefly explained why her crimes warranted such a significant punishment – she had brought pain to patients she was to help and, in doing so, betrayed her profession.  IG Ex. 5 at 2.

I agree with the District Court that Petitioner's actions were "appalling."  IG Ex. 5 at 2.  In particular, she stole morphine from an 89-year-old hospice patient and caused that patient to receive an inadequate dose to control her pain.  While Petitioner has an addiction to opioids, this conduct goes directly to her role as a health care provider and calls into question her trustworthiness to care for patients.  Most distressing is that this was far from the only time Petitioner stole morphine.  IG Ex. 6 at 1-2.

However, like the District Court found, there is no doubt that Petitioner suffers from a variety of documented conditions that should be considered as evidence that reduces her culpability.  And while the circumstances surrounding her conditions are compelling, they do not completely balance out the aggravating factor concerning the length of imprisonment.  Petitioner's crime was not victimless.  As a result, I agree that the IG's

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seven-year length of exclusion is not unreasonable and takes into account the mitigating factor appropriately.

Petitioner also raises two other issues in mitigation that are not cognizable as mitigating factors under the regulations.  The first is that Petitioner has not been previously convicted of an offense for which Petitioner could have been excluded.  P. Br. at 3; 42 U.S.C. § 1320a-7(c)(3)(G).  However, the IG did not assert that Petitioner had been.

Petitioner also argues that she surrendered her nursing license for five years and, after that time, will be eligible for reinstatement.  Petitioner asserts that I should give significant deference to the state licensing authority's determination as to whether Petitioner is fit to be reinstated at that time rather than exclude her for a longer period of time.  P. Br. at 3.  However, as the IG argues, far from assisting Petitioner's case, Petitioner's surrender of her nursing license is an aggravating factor and could have been used to extend the length of exclusion.  IG Reply at 2; 42 C.F.R. § 1001.102(b)(9).

Further, the loss or surrender of a health care license based on reasons involving professional performance or competence is an independent ground to exclude an individual.  42 U.S.C. § 1320a-7(b)(4).  In such a circumstance, the Secretary may not impose an exclusion for a period of time that is less than the period of time that the license is surrendered.  42 U.S.C. § 1320a-7(c)(3)(E).  Therefore, even if Petitioner had only lost her license, the Secretary would still have to make an assessment as to the length of exclusion and not automatically set the length as the minimum period of time that Petitioner's license must remain surrendered.  Likewise, and with more reason, the Secretary must make an individualized determination as to the length of the exclusion when the exclusion involves a criminal conviction.  Had Congress intended for the Secretary to defer to the judgment of state licensing bodies as to the length of exclusion, Congress would have indicated that.

VII.  Conclusion

I affirm the IG's determination to exclude Petitioner for seven years from participating in all federal health care programs.