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# Janet A. Swisher, DAB CR5716 (2020)

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## Department of Health and Human Services     DEPARTMENTAL APPEALS BOARD          Civil Remedies Division        

## Janet A. Swisher(OI File No. H-19-41436-9),Petitioner,

## v.

## The Inspector General.

### Docket No. C-20-438Decision No. CR5716September 23, 2020

### DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Janet A. Swisher (Ms. Swisher or Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for five years.  42 U.S.C. § 1320a-7(a)(3).  I affirm that determination.

### I.  Background

In a January 31, 2020 notice, the IG informed Ms. Swisher that she was being excluded, effective in 20 days, from participation in all federal health care programs for five years based on 42 U.S.C. § 1320a-7(a)(3).  IG Exhibit (Ex.) 1.  It stated:

This exclusion is due to [Petitioner's] felony conviction . . . in the District Court of Oklahoma County, State of Oklahoma, of a criminal 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, including the performance of management or administrative services relating to the delivery of such items

**Page 2**

or services, 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.

Petitioner timely requested a hearing to dispute the exclusion.  This case was assigned to me and, on April 23, 2020, I held a prehearing conference, which was summarized in my April 23, 2020 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  Based on the prehearing submission schedule established at the conference, the IG filed a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  Petitioner filed a brief (P. Br.), a statement (P. Statement), and five marked exhibits (P. Exs. 1-5).  Petitioner also requested an additional ten days to procure written direct testimony from a witness.  I granted the request.  However, Petitioner did not submit the written direct testimony.  Petitioner did, however, revise P. Statement to indicate that she signed under penalty of perjury.  The IG filed a reply brief (IG Reply) in which the IG objected to P. Statement because it:  1) includes an impermissible collateral attack on Petitioner's conviction; 2) was not marked as an exhibit as required by my Standing Prehearing Order; and 3) was not originally sworn under oath or signed under penalty of perjury as required by my Standing Prehearing Order.

### II.  Issue

Whether the IG properly excluded Petitioner for five years under 42 U.S.C. § 1320a-7(a)(3).

### III.  Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007, 1005.2.

### IV.  Decision on the Record

Neither party objected to any of the proposed marked exhibits.  Therefore, I admit IG Exs. 1‐5 and P. Exs. 1-5 into the record.  Standing Prehearing Order ¶ 12; Civil Remedies Division Procedures (CRDP) § 14(e); *see also* 42 C.F.R. § 1005.8(c).  I also admit P. Statement into the record; however, as discussed below, I do not give any weight to the portions of that statement that collaterally attack Petitioner's criminal conviction.

The IG offered no witnesses and indicated that a hearing is unnecessary.  IG Br. at 11.  Petitioner submitted P. Statement as written direct testimony for herself and indicated that a hearing was justified.  P. Br. at 4.  The IG did not request to cross-examine

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Petitioner; therefore, I decide this case based on the written record.  Standing Prehearing Order ¶¶ 10-11, 16; 42 C.F.R. § 1005.16(b); CRDP §§ 16(b), 19(b), (d).

### V.  Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are in bold and italics.

The Secretary of Health and Human Services must exclude an individual from participation in all other federally-funded health care programs when that individual:

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 [section 1320a-7(a)(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).

Therefore, the five essential elements necessary in this case to support a mandatory exclusion are:  (1) the excluded individual must have been convicted of an offense; (2) the offense must be a felony; (3) the felony conviction must have been related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct; (4) the felony offense must be in connection with the delivery of a health care item or service; and (5) the felonious conduct must have occurred after August 21, 1996.

The record in the present case supports the existence of each of these elements.

**1.  *Petitioner, the administrator of a nursing facility where JC was a resident, pleaded guilty to felony Financial Exploitation by Caretaker in violation of Oklahoma law based on improperly taking $2,200 of JC's funds, and, on July 31, 2019, a judge of the District Court in and for Oklahoma County, State of Oklahoma (District Court) accepted Petitioner's guilty plea and deferred sentencing Petitioner for three years.***

On September 25, 2018, an agent with the Medicaid Fraud Control Unit of the Oklahoma Attorney General's Office signed an Affidavit of Probable Cause for Arrest Warrant for Janet Alvina Swisher (Affidavit).  IG Ex. 2 at 1-2.  The Affidavit stated that Petitioner was the administrator of North Winds Living Center (North Winds).  IG Ex. 2 at 2.  The

**Page 4**

Affidavit further indicated that, on May 25, 2017, a North Winds employee with the initials LS transported facility resident JC to a bank where he withdrew $2,200.  IG Ex. 2 at 1.  JC gave the money to LS for safekeeping and, upon returning to the facility, Petitioner told LS to secure JC's money in LS's office.  IG Ex. 2 at 1-2.  On June 1, 2017, Petitioner asked LS for JC's money and Petitioner signed a receipt for the money.  IG Ex. 2 at 2.  Finally, the Affidavit stated that Petitioner admitted to taking the $2,200 that belonged to JC and that Petitioner used the funds for her own personal use.  IG Ex. 2 at 2.

On October 19, 2018, an Oklahoma Assistant Attorney General filed an Information with the District Court charging Petitioner with one count of felony Financial Exploitation by Caretaker.  Okla. Stat. tit. 21, § 843.1(A); IG Ex. 3.  Specifically, the Information alleged that, between June 1, 2017 through June 17, 2017, Petitioner willfully and knowingly took $2,200 from JC, a vulnerable adult, for an improper use of profiting Petitioner, who was a person with the responsibility for the care of JC.  IG Ex. 3 at 1.

On October 19, 2018, a judge of the District Court found probable cause to issue an arrest warrant for Petitioner.  IG Ex. 2 at 3.

On July 31, 2019, Petitioner entered a plea of guilty to the charge of Financial Exploitation by Caretaker in exchange for a three-year deferred sentence, unsupervised probation, prohibition from working with children, vulnerable adults, and elderly during the deferred sentence, and a $500 fine.  Petitioner stated the following occurred in support of the plea:  "Borrowed $2200 of funds believed to belong to nursing home resident.  Paid back in approx 16 days but borrowing was violation of statute.  June 1, 2017."  IG Ex. 4 at 1-7; P. Ex. 5 at 1-7.

Also on July 31, 2019, a judge of the District Court accepted Petitioner's guilty plea and deferred Petitioner's sentencing until July 30, 2022.  IG Ex. 4 at 8-12; IG Ex. 5; P. Ex. 5 at 8-12.

Petitioner testified in this proceeding that she became a victim of a scam involving individuals claiming to be in Nigeria who needed financial help.  She stated that she sent one of these men a lot of money, resulting in financial problems for Petitioner.  Petitioner said she went to LS for a loan of $2,200, which she received on June 1, 2017.  After receiving the loan, Petitioner learned that the money belonged to a resident at North Winds.  Petitioner testified that she agreed to repay the money, but told LS that it had to be paid into the resident's trust account at North Winds.  According to Petitioner, LS was angered by this and reported Petitioner to the owner of North Winds, who terminated Petitioner.  Petitioner testified that she returned the resident's money to North Winds.  In Petitioner's view, she did not steal the money, but only borrowed it and returned it.  P. Statement at 1.

**Page 5**

Petitioner also submitted various articles about fraud scams perpetrated on individuals with similar situations as Petitioner.  P. Exs. 1-4.

Much of Petitioner's testimony cannot be accepted.  In the guilty plea, Petitioner made and signed the following statement:  "Borrowed $2200 of funds believed to belong to nursing home resident.  Paid back in approx. 16 days but borrowing was violation of statute.  June 1, 2017."  IG Ex. 4 at 1-7; P. Ex. 5 at 1-7.  Petitioner clearly stated that she knew that the money she took without permission belonged to one of the residents in her care.  In her testimony, Petitioner does not dispute that she signed the plea agreement.  Instead, she contradicts it.  Therefore, this is an impermissible collateral attack on her conviction.  42 C.F.R. § 1001.2007(d).  Other facts in the statement either are irrelevant or corroborate facts that serve as a basis for exclusion.

**2.  *For purposes of 42 U.S.C. § 1320a-7(a)(3), Petitioner was convicted of an offense.***

One of Petitioner's principal arguments in this case is that she has not been "convicted" of a criminal offense.  Petitioner argues that because her sentence was deferred for three years, she was not convicted under Oklahoma state law.  P. Br. at 1.  Petitioner cited a statute that states in relevant part:

A.  Upon a verdict or plea of guilty or upon a plea of nolo contendere, but before a judgment of guilt, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings upon the specific conditions prescribed by the court not to exceed a ten-year period.

* * * * *

E.  Upon violation of any condition of the deferred judgment, the court may enter a judgment of guilt and proceed as provided in Section 991a of this title or may modify any condition imposed.  Provided, however, if the deferred judgment is for a felony offense, and the defendant commits another felony offense, the defendant shall not be allowed bail pending appeal.

Okla. Stat. tit. 22, § 991c (2018).

Although Petitioner asserts that she was not convicted under Oklahoma law, federal law controls this proceeding.  For exclusions under 42 U.S.C. § 1320a-7, paragraph (i)(3) states that the word "convicted" includes "when a plea of guilty . . . by the individual . . .

**Page 6**

has been accepted by a Federal, State, or local court."  The record shows that Petitioner pleaded guilty and the District Court accepted that plea.  IG Ex. 4; P. Ex. 5.

Further, for exclusion purposes, 42 U.S.C. § 1320a-7(i)(4) also defines "convicted" as "when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld."  The record shows this is what happened in the present case when the District Court imposed conditions on Petitioner and deferred sentencing so she could comply with the conditions.  The Oklahoma statute governing deferred sentencing, quoted above, makes clear that a failure to comply with the conditions can result in immediate sentencing.  As stated in one court opinion:

In a deferred adjudication . . . if the defendant does not live up to the terms of his agreement, he is not free to set aside his plea or proceed to trial—the court may simply enter a judgment of conviction.  Under those circumstances, the entry of a judgment is a mere formality because the defendant has irrevocably committed himself to a plea of guilty or no contest which cannot be unilaterally withdrawn.

*Travers v. Shalala*, 20 F.3d 993, 997 (9th Cir. 1994).

For the reasons stated above, I conclude that Petitioner was "convicted" as that term is defined in 42 U.S.C. § 1320a-7(i)(3) and (4).

**3.  *Petitioner was convicted of a felony offense.***

The record is clear and I conclude that Petitioner pleaded guilty to a crime that is a felony offense.  Okla. Stat. tit. 21, § 843.1(B).

**4.  *Petitioner's felonious conduct was financial misconduct.***

In order for a conviction to qualify as one mandating exclusion under 42 U.S.C. § 1320a-7(a)(3), it must be a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.  The terms "related to" and "relating to" simply mean that there must be a nexus or common sense connection.  *See James Randall Benham*, DAB No. 2042 (2006) (internal citations omitted); *see also**Friedman v. Sebelius*, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase "related to" in another part of section 1320a-7 as "deliberately expansive words," "the ordinary meaning of [which] is a broad one," and one that is not subject to "crabbed and formalistic interpretation") (internal quotation marks omitted).

**Page 7**

In the present case, the record shows that Petitioner was convicted of exploiting a person entrusted to her care in a nursing home facility.  Okla. Stat. tit. 21, § 843.1(A)(1); IG Ex. 4; P. Ex. 5.  Petitioner's act of exploitation was Petitioner's improper taking of the resident's money.  Therefore, Petitioner's misconduct was financial in nature.

**5.  *Petitioner's felonious conduct was in connection with the delivery of a health care item or service.***

In order for the IG to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(3), Petitioner's felony offense must have been for conduct in connection with the delivery of a health care item or service.  To be "in connection with" the delivery of a health care item or service, there only needs to be a nexus or common sense connection to the delivery of a health care item or service.  *Charice D. Curtis*, DAB No. 2430 at 5 (2011).

Petitioner's financial misconduct conviction was in connection with the delivery of a health care item or service because Petitioner was the administrator of the nursing home where JC resided.  Petitioner only had access to JC's money due to her position, as the manager who oversaw the entire facility that provided care to JC.

**6.  *Petitioner's criminal conduct occurred after August 21, 1996.***

To be excluded pursuant to 42 U.S.C. § 1320a-7(a)(3), Petitioner's felony offense must have occurred after August 21, 1996.  The record shows that the conduct on which Petitioner's conviction was based occurred on June 1, 2017.  IG Exs. 2-4; P. Ex. 5.

**7.  *Petitioner must be excluded for five years under 42 U.S.C. § 1320a-7(a)(3).***

I conclude that Petitioner's conviction meets the five elements of a mandatory exclusion under 42 U.S.C. § 1320a-7(a)(3).  Therefore, Petitioner must be excluded for at least five years in length.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. § 1001.102(a).

### VI.  Conclusion

I affirm the IG's determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for the statutory five-year minimum period pursuant to 42 U.S.C. § 1320a-7(a)(3).

Scott AndersonAdministrative Law Judge