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                              Holly Marie Whyde, DAB CR6027 (2022)
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Holly Marie Whyde, DAB CR6027 (2022)








  
  
    

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





Holly Marie Whyde
(O.I. File No. 5-16-40022-9)
Petitioner,

v.

Inspector General
U.S. Department of Health and Human Services,
Respondent.
Docket No. C-21-986Decision No. CR6027February 11, 2022

        
              
    

      DECISION

Petitioner, Holly Marie Whyde, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)), effective May 18, 2017.  There is a basis for exclusion.  Petitioner’s exclusion for a minimum of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).  An additional exclusion of three years, for a total minimum exclusion of eight years,1
 is not unreasonable based upon the existence of two aggravating factors and no mitigating factors.

Page 2

I.  Background

The Inspector General (IG) of the U.S. Department of Health and Human Services notified Petitioner by letter dated April 28, 2017, that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for eight years.  The IG cited section 1128(a)(1) of the Act as the basis for Petitioner’s exclusion.  The IG stated that the exclusion was based on Petitioner’s conviction in the United States District Court, Southern District of Indiana (district court), of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The IG notified Petitioner that the IG extended the mandatory five-year exclusion to eight years because Petitioner’s acts that resulted in a conviction were committed over a period of one year or more and the sentence imposed by the district court included incarceration.  IG Exhibit (Ex.) 1 at 1-2.

Petitioner requested a hearing on July 30, 2021 (RFH).  On August 10, 2021, the case was assigned to me to hear and decide.  I convened a telephone prehearing conference on September 1, 2021, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued on September 1, 2021 (Prehearing Order).

The IG filed a motion to dismiss and supporting memorandum on October 1, 2021, with IG Exs. 1 and 2.  The IG argued that Petitioner’s request for hearing must be dismissed because it was not timely filed.  Petitioner filed a declaration in response on October 29, 2021.  On November 2, 2021, I denied the IG’s motion to dismiss concluding Petitioner rebutted the presumption that she received the incorrectly addressed IG notice of exclusion more than 60 days prior to the filing of her request for hearing on July 30, 2021.

The IG filed a motion for summary judgment and supporting memorandum on December 3, 2021 (IG Br.) with IG Exs. 3 through 5.  On December 30, 2021, Petitioner filed a response in the form of a declaration (P. Decl.) and a single unmarked page titled “Last Page of College [T]ranscript,” which I treat as if marked P. Ex. 1.  On January 14, 2022, the IG filed a reply brief (IG Reply).  Petitioner did not object to my consideration of IG Exs. 1 through 5 and they are admitted as evidence.  The IG did not object to my consideration of P. Ex. 1 and it is admitted as evidence.

II.  Discussion

**Applicable Law**Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).

Page 3

Pursuant to section 1128(a)(1) of the Act, the Secretary must exclude from participation in any federal health care program any individual convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  A state health care program includes a state Medicaid program.  Act § 1128(h) (42 U.S.C. § 1320a-7(h)).

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(a), (c).2

Exclusion for a minimum period of five years is mandatory for any individual or entity convicted of a criminal offense for which exclusion is required by section 1128(a) of the Act.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)).  Pursuant to 42 C.F.R § 1001.102(b), an individual’s period of exclusion may be extended based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years, however, are mitigating factors considered as a basis for reducing the period of exclusion to no fewer than five years.  42 C.F.R. § 1001.102(c).

In this proceeding, the standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(b), (c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).

**Issues**The Secretary has by regulation limited my scope of review to two issues:

Whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the exclusion is unreasonable.

Page 4

42 C.F.R. § 1001.2007(a)(1).

**Findings of Fact, Conclusions of Law, and Analysis**My conclusions of law are set forth in bold text followed by my findings of fact and analysis.

**Petitioner timely filed her request for hearing, and I have jurisdiction.**I previously ruled that Petitioner’s request for hearing was timely filed.  Ruling Denying Inspector General’s Motion to Dismiss and Schedule for Prehearing Development, Nov. 2, 2021.  I conclude that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

**Summary judgment is appropriate.**Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have the right to participate in the hearing.  42 C.F.R. §§ 1005.2-.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, which are clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  *Tanya A. Chuoke, R.N.*, DAB No. 1721 (2000); *David A. Barrett,* DAB. No. 1461 (1994); *Robert C. Greenwood*, DAB No. 1423 (1993); *Thelma Walley*, DAB No. 1367 (1992); *Catherine L. Dodd, R.N.*, DAB No. 1345 (1992); *John W. Foderick, M.D.*, DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  *Surabhan Ratanasen, M.D.*, DAB No. 1138 (1990); *Foderick*, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmovant must allege facts that show there is a genuine dispute of material fact that affects the proponent’s prima facie case or that might establish a defense.  The nonmovant may not rely upon mere allegations or denials to defeat a properly supported motion for summary judgment.  To defeat a properly supported motion for summary judgment and proceed to a trial, the nonmovant must show there is a genuine dispute as to a material fact that requires determination by the fact finder.  On summary judgment, the judge does not weigh the

Page 5

evidence or attempt to determine the truth.  Rather, the judge accepts the nonmovant’s evidence as true and draws all permissible inferences in the nonmovant’s favor.  *Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 247-57 (1986).

There are no genuine issues of material fact in dispute in this case.  Petitioner does not dispute that she pleaded guilty to, and was convicted of, aggravated identity theft and making false statements relating to health care matters.  P. Decl.  Petitioner does not dispute that she was sentenced to incarceration.  P. Decl.; IG Ex. 5 at 2.  Petitioner states that she does not dispute summary judgment is appropriate.  However, she argues that the eight-year period of exclusion is unreasonable.  P. Decl.  I accept Petitioner’s assertions of fact as true for purposes of summary judgment.  However, the facts that Petitioner asserts do not establish any of the mitigating factors I am authorized to consider under the regulations discussed hereafter.  Therefore, the reasonableness of the eight-year period of exclusion must be resolved against Petitioner as a matter of law.  Accordingly, I conclude that summary judgment is appropriate.

**Section 1128(a)(1) of the Act requires Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs.****Facts**The material facts are undisputed.

On March 1, 2016, Petitioner was charged by an Information in the district court with two felony offenses occurring from about September 1, 2014 until about December 21, 2015:  one count of making false statements relating to health care matters in violation of 18 U.S.C. § 1035, and one count of aggravated identity theft by using a means of identification of another in violation of 18 U.S.C. § 1028A.  IG Ex. 3. **The Information was based on an investigation that found Petitioner had unlawfully obtained and used a Registered Nurse’s (RN) license and unique Indiana license number that belonged to someone else in order to obtain employment as a director of nursing in a nursing home.  IG Ex. 4.  On July 30, 2016, Petitioner pleaded guilty to both counts, her guilty pleas were accepted, and she was sentenced to 30 months in prison and to pay a fine of $500.  IG Ex. 5.

**Analysis**The IG cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute provides in relevant part:

(a)  MANDATORY EXCLUSION. – The Secretary shall exclude the following individuals and entities from

Page 6

participation in any Federal health care program (as defined in section 1128B(f)):

(1)  CONVICTION OF PROGRAM-RELATED CRIMES. – Any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or under any State health care program.

Act § 1128(a)(1).  Congress has, by the plain language of section 1128(a)(1) of the Act, required the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs any individual or entity:  (1) convicted of a criminal offense, whether a misdemeanor or felony; (2) where the offense is related to the delivery of an item or service; and (3) the delivery of the item or service was under Medicare or a state health care program.

The elements that trigger an exclusion under section 1128(a)(1) of the Act are triggered in this case.  Petitioner does not dispute that she was convicted of a criminal offense.  The district court accepted Petitioner’s guilty pleas to aggravated identity theft and making false statements related to health care matters.  IG Ex. 5 at 1-2.  Accordingly, Petitioner was convicted within the meaning of the Act.  Act § 1128(i)(1), (3).  Petitioner does not dispute that her offenses were related to the delivery of an item or service under Medicare or a state health care program.  P. Decl.  Count 1 of the Information specifically alleges that Petitioner’s false statements were related to health care matters.  IG Ex. 3 at 1.  Petitioner also admitted by her guilty plea that she used the RN license and identity of another to obtain a position as a director of nursing in a nursing home as alleged by the Criminal Complaint and its supporting affidavit.  IG Ex. 4.  I conclude, based on the undisputed facts, that there is a common-sense connection or nexus between Petitioner’s aggravated identity theft and making false statements relating to health care matters and the delivery of an item or service under the Medicare and Medicaid programs.  *Saadite A. Green*, DAB No. 2940 at 6-7 (2019) (and cases cited therein).

Accordingly, I conclude that all elements that trigger mandatory exclusion pursuant to section 1128(a)(1) of the Act are satisfied and the IG has a basis to exclude Petitioner.  Because I have found that there is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act, Congress has mandated her exclusion.  Neither the IG nor I have any discretion not to exclude Petitioner in this case as we are both bound to follow the federal statutes and regulations.  42 C.F.R. § 1005.4(c)(1).

Page 7

**Pursuant to section 1128(c)(3)(B) of the Act, a five-year period of exclusion is mandatory.**I have concluded that there is a basis to exclude Petitioner pursuant to section 1128(a)(1) of the Act.  Therefore, the IG must exclude Petitioner for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act.  The IG has no discretion to impose a lesser period, and I may not reduce the period of exclusion to fewer than five years.

The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional three years.  My determination of whether the period of exclusion in this case is unreasonable turns on whether:  (1) the IG has proven that there are aggravating factors; (2) Petitioner has proven that the IG considered an aggravating factor that does not exist or that there are mitigating factors that the IG failed to consider; and (3) the period of exclusion is within a reasonable range.

**Two aggravating factors authorized by 42 C.F.R. § 1001.102(b) are present that justify extending the minimum period of exclusion to eight years.**The IG notified Petitioner that two aggravating factors are present in this case that justify an exclusion of more than five years:

Petitioner’s acts that resulted in her conviction, or similar acts, were committed over a period of one year or more from about September 2014 to about December 2015.
	The sentence imposed by the court included a period of incarceration.IG Ex. 1 at 2.  I conclude that each aggravating factor is established by undisputed facts.

Count I of the information charged that Petitioner’s conduct occurred from on or about September 1, 2014 and continued through on or about December 21, 2015.  IG Ex. 3 at 1.  Petitioner does not dispute that the acts for which she was convicted were committed for over a year.  P. Decl.  The regulation states the aggravating factor as follows:  “[t]he acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.”  42 C.F.R. § 1001.102(b)(2).  The regulation is clear that the entire period of criminal activity is to be considered an aggravating factor.  The Departmental Appeals Board (Board) has previously discussed the purpose of the aggravating factor under 42 C.F.R. § 1001.102(b)(2), saying that it reflects “the Secretary’s recognition that an individual whose lapse in integrity occurs over a period of one or more years poses a far greater threat to federal health care programs and beneficiaries than an individual ‘whose lapse in integrity is short-lived.’”  *Hussein Awada*, *M.D.*, DAB No. 2788 at 8 (2017) (quoting *Donald A. Burstein*, *Ph.D.*, DAB No. 1865 at 8 (2003)).  Petitioner’s acts were

Page 8

not short-lived and were committed over a period of more than a year.  The facts Petitioner admitted by her guilty plea establish the existence of the first aggravating factor considered by the IG under 42 C.F.R. § 1001.102(b)(2).

It is also undisputed that the court sentenced Petitioner to incarceration for 30 months, which establishes the existence of the second aggravating factor considered by the IG under 42 C.F.R. § 1001.102(b)(5).  IG Ex. 5 at 2.

**Petitioner has not met her burden to establish by a preponderance of the evidence a mitigating factor authorized by 42 C.F.R. § 1001.102(c).**If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) justify an exclusion of longer than five years, as they do in this case, then mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).  The IG did not list, and therefore did not consider, any mitigating factors in deciding to extend Petitioner’s exclusion to eight years.  IG Ex. 1 at 2.

The only mitigating factors that I am authorized to consider are listed in 42 C.F.R. § 1001.102(c):

(1)  In the case of an exclusion under § 1001.101(a), whether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;

(2)  The record in the criminal proceeding, 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 that individual’s culpability; or

(3)  The individual’s or entity’s cooperation with Federal or State officials resulted in –

(i)  Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

Page 9

(ii)  Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii)  The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for me to consider.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.

Petitioner argues that an eight-year exclusion is extreme, and she requests that I reduce the period of exclusion.  Petitioner urges me to consider the following to be mitigating factors that justify reducing the period of her exclusion:

The exclusion did not begin until one year into her incarceration;
	She did not defraud the Medicare or Medicaid programs;
	She did not obtain anything of monetary value;
	She only wanted to take care of residents;
	She only wanted to make policy changes that she could not do as a Licensed Practical Nurse;
	She has been rehabilitated since her release;
	She completed her probation without issue;
	She obtained a Bachelor’s Degree in Psychology;
	She is unable to complete further educational training;
	She is unable to work to support her family; and
	She has a serious health condition for which she is seeking treatment.P. Decl.; P. Ex. 1. I accept Petitioner’s assertions and representations as true for purposes of summary judgment. However, not one of Petitioner’s asserted mitigating factors is a mitigating factor that the IG or I am authorized to consider under 42 C.F.R. § 1001.102(c).  Therefore, Petitioner has failed to meet her burden to show the existence of a mitigating factor.  I conclude that Petitioner has failed to show any genuine dispute that there is a mitigating factor that may be considered under 42 C.F.R. § 1001.102(c), even if I accept her allegations as true for purposes of summary judgment.  Accordingly, this case presents no mitigating factors the IG failed to consider.

Petitioner also argues that her exclusion should have been effective immediately after her conviction rather than one year into her prison sentence.  However, the applicable regulation is clear that the effective date of exclusion is 20 days after the date of the IG’s

Page 10

notice of exclusion, and the IG, the Board, and I have no discretion to change the effective date.  42 C.F.R. § 1001.2002(b).

**Exclusion for eight years is not unreasonable in this case.**The regulation states that the ALJ must determine whether the length of exclusion is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1).  The Board, however, has made clear that the role of the ALJ in exclusion cases is to conduct a de novo review of the facts related to the basis for the exclusion and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102 and to determine whether the period of exclusion imposed by the IG falls within a reasonable range.  *Juan de Leon, Jr.*, DAB No. 2533 at 4-5 (2013); *Craig Richard Wilder*, DAB No. 2416 at 8 (2011); *Joann Fletcher Cash*, DAB No. 1725 at 17 n.6 (2000).  The Board has explained that, in determining whether a period of exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a reasonable range.”  *Cash*, DAB No. 1725 at 17 n.6.  The Board cautions that whether the ALJ thinks the period of exclusion is too long or too short is not the issue.  The ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances.

In *John (Juan) Urquijo*, DAB No. 1735 (2000), the Board made clear that, if the IG considers an aggravating factor to extend the period of exclusion and that factor is not later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum.  In *Gary Alan Katz, R.Ph.*, DAB No. 1842 (2002), the Board suggested that when it is found that an aggravating factor considered by the IG is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected absent some circumstances that indicate no such adjustment is appropriate.  Thus, the Board has by these various prior decisions significantly limited my authority under the applicable regulation to judge the unreasonableness of the period of exclusion.

Based on my de novo review, I conclude that a basis for the exclusion exists and that the undisputed evidence established the two aggravating factors the IG considered in determining to impose the eight-year exclusion.  Petitioner has not presented evidence that shows a genuine dispute that the IG failed to consider a mitigating factor authorized by 42 C.F.R. § 1001.102(c) or considered an aggravating factor that did not exist.  I conclude that a period of exclusion of eight years is in a reasonable range and not unreasonable considering the existence of two aggravating factors and no mitigating factors.  Accordingly, no basis exists for me to reassess the period of exclusion.

Page 11

III.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of eight years, effective May 18, 2017.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Pursuant to 42 C.F.R § 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires.  Reinstatement is not automatic upon completion of the minimum period of exclusion. back to note 1
                      2. Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the IG action, unless otherwise stated. back to note 2 Back to top
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