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# Ana Guitty, DAB CR5869 (2021)

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

## Ana Guitty,(OI File No. H-20-40329-9),Petitioner,

## v.

## The Inspector General.

### Docket No. C-21-150Decision No. CR5869May 24, 2021

### DECISION

Petitioner, Ana Guitty, was a private health care aide, caring for an elderly, bed-ridden woman in Margate, Florida.  In connection with her position, Petitioner Guitty wrote herself checks on the patient’s account, which she attempted to deposit in her own bank account; without permission, she used her patient’s credit card to buy things for herself.  She was caught and charged with the financial exploitation of an elderly person or disabled adult and with criminal use of personal identification information, both felonies. 

Based on these convictions, 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 Guitty and that the statute mandates a minimum five-year exclusion. 

### Background

In a letter dated September 30, 2020, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a

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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 healthcare item or service; or with respect to any act or omission in a healthcare 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 six exhibits (IG Exs. 1-6).  Petitioner responded to the IG’s brief (P. Br.).1  In the absence of any objections, I admit into evidence IG Exs. 1-6.

I directed the parties to indicate whether an in-person hearing would be necessary.  *See, e.g.,* (blank copy) Informal Brief of Petitioner at 2 (e-file document # 8).  They agree that it is not necessary.  IG Br. at 13; P. Br. at 2. 

### 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 healthcare service.*2**

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 healthcare item or service.  42 C.F.R. § 1001.101(c)(1). 

Petitioner Guitty was a private health care aide, hired to provide continuous care to a seriously ill, bed-ridden patient.  IG Ex. 2.  On November 1, 2017, Petitioner attempted to write herself an unauthorized check for $48,000 from the patient’s account.  When banking staff failed to deposit that check into Petitioner’s own account, she wrote herself a second check for that amount.  She also made multiple, unauthorized purchases for herself, using her patient’s credit card.  IG Exs. 2, 3, 4.

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She was caught and charged with two felonies:  financial exploitation of an elderly person or disabled adult, in violation of Fla. Stat. §§ 825.103(1)(a) and (b) and 825.103(3)(b); and criminal use of personal identification information, in violation of Fla. Stat. § 817.568(2)(a).  IG Ex. 4.  On January 30, 2020, Petitioner pled “no contest” to the charges.  IG Ex. 5.  The court accepted her plea and sentenced her to 36 months probation.  As a condition of her probation, she was not allowed to work with the elderly for one year and could not work as a bookkeeper or on financial matters.  IG Ex. 5 at 2.  She was also ordered to pay a fine of $1,001.  IG Ex. 5 at 3.  The court withheld adjudication.  IG Ex. 6.  

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).  Petitioner’s “no contest” plea is thus a conviction, within the meaning of the statute and regulation. 

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* at 7-8.

The rationale for the different meanings of “conviction” for state criminal law versus federal exclusion law 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 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.

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*Gupton* at 7-8.

Petitioner’s felony convictions were plainly related to theft in connection with the delivery of health care services.  She was employed to provide care to a vulnerable patient.  In that capacity, she had access to her patient’s checking account and credit card.  She used that access in an unsuccessful attempt to steal funds from her employer; she successfully misused her employer’s credit card.  She is therefore subject to exclusion. Act §§ 1128(i)(3) and (4); 42 C.F.R. §§ 1001.2(c) and (d).

Petitioner, however, complains that she was not guilty of the crimes and entered the pleas because she feared jail time.  The regulations preclude such a collateral attack on an underlying conviction:  

When the exclusion is based on the existence of a criminal conviction . . . or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it[,] either on substantive or procedural grounds[,] in this appeal. 

42 C.F.R. § 1001.2007(d); *Marvin L. Gibbs, Jr., M.D.*, DAB No. 2279 at 8-10 (2009); *Roy Cosby Stark*, DAB No. 1746 (2000).

Petitioner also complains that the period of exclusion exceeds the period of her probation.  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 have no authority to change that. 

### 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.

Carolyn Cozad HughesAdministrative Law Judge

                                              1. In error, I issued an order to show cause directing Petitioner to explain why I should not dismiss her case for abandonment because she had not filed her pre-hearing exchange.  In fact, Petitioner had timely filed her exchange, which staff from the Departmental Appeals Board received but misdirected.  This was our error, for which we apologize. 
                            - back to note 1
                                                  2. I make this one finding of fact/conclusion of law. 
                            - back to note 2