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# Gilda Zoe Reilly, RN, DAB CR5051 (2018)

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

## Gilda Zoe Reilly, RN,	(OI File No. H-17-41068-9),	Petitioner,	v.	The Inspector General.

### Docket No. C-18-192Decision No. CR5051March 19, 2018

### DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Petitioner, Gilda Zoe Reilly, from participating in federally funded health care programs, including Medicare and Medicaid, for a period of two years.

### I. Background

Petitioner requested a hearing to challenge the I.G.’s exclusion determination. The I.G. filed a brief plus five exhibits, identified as I.G. Ex. 1 – I.G. Ex. 5, in support of his determination to exclude Petitioner. Petitioner filed an opposing brief plus an exhibit, identified as P. Ex. 1. The I.G. filed a reply brief. Neither party requested an in-person hearing. I receive the parties’ exhibits into the record.

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### II. Issue, Findings of Fact, and Conclusions of Law

### A. Issue

The issue is whether the I.G.’s determination to exclude Petitioner for a period of two years is reasonable.

### B. Findings of Fact and Conclusions of Law

Petitioner does not dispute that she was convicted of an offense pursuant to section 1128(b)(1)(A) of the Social Security Act (Act) for which the I.G. has discretion to exclude.  This section empowers the I.G. to exclude any individual who is convicted of a misdemeanor 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.  The undisputed facts of this case are that Petitioner, while working as a nurse at a hospital in Indiana, stole and converted to her own use various controlled substances (Oxycodone, Norco/Hydrocodone, Dilaudid/Hydromorphone, and Adderall) that were prescribed to patients under her care.  I.G. Ex. 2; I.G. Ex. 3.  Petitioner eventually pled guilty to three misdemeanors, admitting that she had stolen Norco/Hydrocodone and Dilaudid/Hydromorphone from two patients.  I.G. Ex. 4; I.G. Ex. 5.  Petitioner’s crimes directly relate to theft in connection with the delivery of health care items or services; she stole health care items that were prescribed to her patients. 

Generally, the I.G. excludes individuals who are convicted of (b)(1) crimes for a minimum of three years.  *See*42 C.F.R. § 1001.201(b)(1).  In this case, however, the I.G. opted to exclude Petitioner for two years, adjusting her exclusion based on a regulatory mitigating factor that allows for reduced exclusions where an individual is convicted of three or fewer misdemeanors and the entire amount of the financial impact of that individual’s crimes is $5,000 or less.  42 C.F.R. § 1001.201(b)(3)(i).  This reduced exclusion is reasonable on its face.

Petitioner, argues, however, that the I.G. should have considered another mitigating factor and further reduced Petitioner’s exclusion.  Citing 42 C.F.R. § 1001.201(b)(3)(ii), Petitioner asserts that the I.G. should have taken into consideration the fact that Petitioner had a substance abuse disorder at the time that she committed her crimes and that this disorder reduced her culpability.  Petitioner argues that mitigation is appropriate inasmuch as the State of Indiana determined to allow Petitioner to continue to practice as a nurse after her conviction, albeit under certain conditions.  *See*P. Ex. 1; CMS Exs. 4, 5.

I accept Petitioner’s representation that she suffered from a substance abuse disorder when she committed her crimes.  Despite this, she has not proven the presence of a mitigating factor nor has she shown that the I.G.’s two-year exclusion is unreasonable.  A critical element of the mitigating factor is that the court that accepted Petitioner’s plea

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made a finding that her substance abuse disorder reduced her culpability for her crimes.  42 C.F.R. § 1001.201(b)(3)(ii); *Patel v. Shalala,*17 F. Supp. 2d 662, 667-68 (W.D. Ky. 1998); *Joseph M. Ruske, Jr. R. Ph.*, DAB No. 1851 (2002).1

Petitioner did not prove that the court that accepted her plea made a finding of reduced culpability based on her substance abuse disorder.  Petitioner argues that I should infer that the court made such a finding.  She contends that the fact that the court accepted her plea to reduced misdemeanor charges rather than to felonies is sufficient basis for me to draw that inference.  I am not persuaded by that argument.  There are other reasons besides diminished culpability due to substance abuse why a court could have accepted Petitioner’s misdemeanor pleas.  I take notice that it is a common practice in courts hearing criminal cases to accept pleas to reduced charges – even substantially reduced charges – simply as a way to save the State the expense of conducting a trial.  Such efficiency considerations have little or no relation to the defendant’s actual culpability.

Steven T. KesselAdministrative Law Judge

                                              1. Patel and Ruske address an analogous mitigating factor that may exist in cases of felony convictions for program related crimes. See 42 C.F.R. § 1001.102(c)(2). The language of this section is identical to that of 42 C.F.R. § 1001.201(b)(3)(ii), and the same criteria for determining the presence of a mitigating factor thus are present in both sections. 
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