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                              Alieu Drammeh, CR6275 (2023)
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Alieu Drammeh, CR6275 (2023)








  
  
    

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





Alieu Drammeh,
(OI File No.: 9-19-40229-9),
Petitioner,

v.

The Inspector General.
Docket No. C-23-230Decision No. CR6275April 26, 2023

        
              
    

      DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Alieu Drammeh, from participation in Medicare, Medicaid, and all other federal health care programs based on his federal conviction that related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of any health care item or service pursuant to section 1128(b)(1) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(b)(1)).  For the reasons discussed below, I conclude that the IG has a basis for excluding Petitioner.  An exclusion for a minimum of six years, effective January 19, 2023, is not unreasonable based on the application of four aggravating factors and no mitigating factors.

I.  Background

In a letter dated December 30, 2022, the IG informed Petitioner that she had imposed an exclusion pursuant to section 1128(b)(1) of the Act, 42 U.S.C. § 1320a-7(b)(1), for a minimum period of six years, effective 20 days from the date of the letter.  IG Ex. 1.  The IG explained that the exclusion was based on “[Petitioner’s] conviction (as defined in section 1128(i) of the Act) in the United States District Court for the Western District of Washington,” of the following, in pertinent part:

**Page 2**

a misdemeanor offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of any health care item or service, including the performance of management or administrative services relating to the delivery of such items 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.1

IG Ex. 1 at 1 (citing 42 U.S.C. § 1320a-7(b)(1), 42 C.F.R. § 1001.201).  The IG informed Petitioner that, based on her application of four aggravating factors and no mitigating factors, she had imposed a six-year exclusion.  IG Ex. 1 at 1-2; *see*42 C.F.R. § 1001.201(b)(2)(ii) (“The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.”); 42 C.F.R. § 1001.201(b)(2)(iv) (“The sentence imposed by the court included incarceration”); 42 C.F.R. § 1001.201(b)(2)(v) (“The individual or entity has a documented history of criminal, civil or administrative wrongdoing.”); 42 C.F.R. § 1001.201(b)(2)(vii) (“The individual or entity has been the subject of any other adverse action by any Federal, state, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.”).

Petitioner submitted a timely request for an administrative law judge (ALJ) hearing on January 15, 2023.  The Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) on January 23, 2023.  On February 2, 2023, I presided over a telephonic pre-hearing conference, and that same day I issued an order summarizing the discussions that took place during the conference.

The IG filed a brief and a reply brief, along with 10 proposed exhibits (IG Exs. 1-10).  Petitioner filed an informal brief (P. Br.) and a follow-up letter, entitled “ADDITIONAL INFORMATION.”2  In the absence of objections, I admit IG Exs. 1-10 into the evidentiary record.

Because neither party has submitted the written direct testimony of any witnesses, a hearing is unnecessary for the purpose of cross-examination of any witnesses. Pre‐Hearing Order §§ 14-16; *see Lena Lasher*,DAB No. 2800 at 4 (2017) (discussing

**Page 3**

that when neither party submits written direct testimony as directed, “no purpose would be served by holding an in-person hearing . . . .”),*aff’d, Lasher v. Dep’t of Health & Human Servs.*, 369 F.Supp.3d 243 (D.D.C. 2019).  I will decide this case on the written submissions and documentary evidence.

II.  Issues

Whether there is a basis for exclusion, and if so, whether a minimum period of exclusion of six years is unreasonable.  42 C.F.R. § 1001.2007(a)(1).

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and Analysis3

******On or about July 27, 2011, the Board of Nursing of the State of Oregon revoked Petitioner’s nursing license after he fraudulently obtained his registered nurse license by forging the signature of his preceptor on his re-entry paperwork and used a fraudulent Social Security number on his re-entry application.***
	***In September 2012, Petitioner and the State of Washington Department of Health Nursing Care Quality Assurance Commission entered into an Agreed Order revoking Petitioner’s nursing license.  That order stipulated that, while Petitioner’s Washington nursing license was suspended, he continued to practice nursing and also submitted an employment application listing the name of another registered nurse, an unidentified Social Security number, and an unidentified driver’s license number.***
	***On March 10, 2022, the United States filed a superseding information charging that Petitioner committed Fraud in Connection with Identification Documents – Possession of Identification Document to Defraud the United States, in violation of 18 U.S.C. § 1028(a)(4), (b)(6).***
	***On March 14, 2022, Petitioner entered into a plea agreement in which he admitted that, dating back to March 22, 2013, and continuing until on or around September 18, 2019, while his********Page 4**

***nursing license was revoked, he used a forged driver’s license and Social Security card to falsely establish an identity as an actively licensed nurse in order to apply for and obtain employment as a registered nurse and director of nursing at a skilled nursing facility where he supervised 42 licensed nurses, conducted patient assessments, and was responsible for the destruction of narcotics.***

******On or about March 14, 2022, Petitioner entered a guilty plea before a magistrate judge, and a district court judge accepted that plea on March 30, 2022.***
	***On July 1, 2022, the district court imposed sentence and judgment for the offense of Fraud in Connection with Identification Documents – Possession of Identification Document to Defraud the United States.***
	***Petitioner’s criminal conviction was related to fraud, theft, embezzlement, breach of fiduciary responsibility or other misconduct in connection with the delivery of a health care item or service.***
	***The IG was authorized to impose an exclusion pursuant to section 1128(b)(1) of the Act.******Section 1128(b)(1)(A) of the Act authorizes the Secretary to permissively exclude an individual or entity from participation in any federal health care program under certain circumstances, to include:

**(1) Conviction relating to fraud**

Any individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law—

(A)  of a criminal offense consisting of a misdemeanor relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct—

(i)    in connection with the delivery of a health care item or service, or

(ii)   with respect to any act or omission in a health care program (other than those specifically described in

**Page 5**

subsection (a)(1)) operated by or financed in whole or in part by any Federal, State, or local government agency . . . .

42 U.S.C. § 1320a-7(b)(1).  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.201(a).  Pursuant to 42 U.S.C. § 1320a-7(c)(3)(D), the exclusion will be for a period of three years, unless the IG determines, in accordance with regulations, that a longer period is appropriate because of aggravating circumstances or a shorter period is appropriate because of mitigating circumstances.  42 C.F.R. § 1001.201(b)(2) and (3).

On or about July 20, 2010, the Oregon State Board of Nursing determined that Petitioner “fraudulently obtained his Registered Nurse license by forging the signature of his preceptor on his re-entry paper work.  The social security number used by [Petitioner] on his application for re-entry was also fraudulent.”  IG Ex. 4 at 1.  On July 27, 2011, the Oregon State Board of Nursing revoked Petitioner’s registered nurse license.  IG Ex. 4 at 1-2.

In September 2012, Petitioner entered into an Agreed Order with the State of Washington Department of Health Nursing Care Quality Assurance Commission.  IG Ex. 5.  The parties stipulated that Petitioner continued to practice nursing in Washington between October 21, 2011 and March 5, 2012, while his Washington nursing license was suspended.  The parties also stipulated that Petitioner submitted an employment application under the name of another active registered nurse, along with unidentified Social Security and driver’s license numbers.  IG Ex. 5 at 3.  The Agreed Order revoked Petitioner’s Washington registered nurse license.  IG Ex. 5 at 4.

On March 10, 2022, in the Western District of Washington, the United States filed a superseding information charging that Petitioner “possessed a Washington state driver’s license and Social Security card, both of which were forged to bear the personally identifiable information of A.K., a real person, and used the documents to earn income without properly reporting or paying taxes owed on such income to the Internal Revenue Service,” in violation of 18 U.S.C. § 1028(a)(4), (b)(6).  IG Ex. 3 at 1-2.  Shortly thereafter, Petitioner entered into a plea agreement in which he admitted using A.K.’s name, date of birth, Social Security number, and driver’s license number to obtain employment as a nurse.  IG Ex. 7 at 6.  Petitioner admitted that not only did he generate income without properly reporting the earnings, but he used A.K.’s identity and credentials to obtain a position as the Director of Nursing at a skilled nursing facility where he supervised 42 licensed nurses, conducted patient assessments, and was responsible for the destruction of narcotics.  IG Ex. 7 at 6.  Petitioner admitted that the offense conduct occurred between on or about March 22, 2013, and September 18, 2019.  IG Ex. 7 at 6-7.

**Page 6**

Petitioner entered a guilty plea before a magistrate judge on or about March 14, 2022 (IG Ex. 9), and that plea was accepted by a district judge on March 30, 2022.  IG Ex. 10.  The district court imposed sentence and judgment on July 1, 2022, for the offense of Fraud in Connection with Identification Documents – Possession of Identification Document to Defraud the United Sates.  IG Ex. 2 at 1.  The sentence included that Petitioner “participate in the location monitoring program with Active Global Positioning Satellite for a period of 30 days,” during which time he would be “restricted to his . . . residence at all times except for employment, religious services, medical, legal reasons, or as otherwise approved by the location monitoring specialist.”  IG Ex. 2 at 4.

In his brief, Petitioner does not dispute that he was convicted of the criminal offense that is the subject of the exclusion notice.  P. Br. (Response of “YES” to a question asking, “Were you convicted of a criminal offense?”).  Nor does Petitioner dispute that he was convicted of an offense for which exclusion is authorized.  P. Br. (Response of “YES” in response to a question asking, “Were you convicted of an offense for which exclusion is authorized?”).

Several decades ago, Congress added new exclusion authorities, to include the permissive exclusion authority enumerated at 1128(b)(1), when it ratified the Medicare and Medicaid Patient and Program Protection Act of 1987, Pub. L. No. 100-93 (1987).  A stated purpose of these amendments was to “protect Medicare, Medicaid . . . programs from fraud and abuse, and to protect the beneficiaries of those programs from incompetent practitioners and from inappropriate or inadequate care.”  S. REP. No. 100-109, 100th Cong., 1st Sess. 1-2 (1987), reprinted in 1987 U.S. Code Cong. & Admin. News 682.  Although an exclusion under section 1128(b)(1) is a permissive exclusion, the legislative history explains that “the bill makes it clear that, if the Secretary found that an exclusion was warranted, these authorities would have to be exercised in a manner that resulted in the exclusion of the individual or entity from all of the Medicare and State health programs for which the individual or entity was otherwise eligible to participate.”  *Id.*at 6.  The legislative history further explained that “[t]he bill includes among the grounds for permissive exclusion convictions relating to fraud (1128(b)(1)),” and “[w]hile the Committee expects that most of these cases will result in exclusion, it wishes to give the Secretary the option to avoid exclusion if, in his judgment, exclusion would jeopardize another investigation.”  *Id.*

Addressing the IG’s permissive exclusion authority under section 1128(b)(1), the Departmental Appeals Board (DAB) has held that “section 1128(b)(1) of the Act ‘does not restrict exclusions to only offenses constituting or consisting of fraud, but requires merely that the offense at issue be one ‘relating to fraud.’’”  *Richard E. Bohner*, DAB No. 2638 at 10 (2015), *aff’d, Bohner v. Burwell*, Civ. A. No. 15-4088 (E.D. Pa. Dec. 2, 2016), quoting *Paul D. Goldenheim, M.D., et al.*, DAB No. 2268 at 10 (2009).  Thus, I need not determine that Petitioner’s conviction, itself, was for committing fraud; I need only determine that the offense was *related to* fraud.  The DAB has stated there should be

**Page 7**

a “common sense connection” between the underlying crime and the delivery of a health care item or service in order to meet the statutory basis for exclusion.  *Erik D.**DeSimone, R.Ph.*,DAB No. 1932 at 5 (2004).

The U.S. Court of Appeals for the District of Columbia, in addressing an argument that a “strict liability” misdemeanor offense cannot form a basis for exclusion under section 1128(b)(1), remarked that section 1128(b)(1) has a “broad scope” and held that it authorizes the Secretary to exclude from participation in federal health care programs “an individual convicted of a misdemeanor if the conduct underlying that conviction is *factually* related to fraud.”  *Friedman v. Sebelius*,686 F.3d 813 at 820, 824 (D.C. Cir. 2012) (emphasis added).  Notably, the D.C. Circuit rejected the argument that an exclusion under section 1128(b) could yield an “absurd result” when “one ‘who pleads guilty of a strict liability misdemeanor offense that requires no proof of conscious wrongdoing, fraud, or falsehoods is excludable based on misconduct by others that he had no knowledge of.’”  *Id.*at 823.  The Court explained that, “viewed in context, however, there is no absurdity,” and “a lesser *mens rea* requirement, or indeed no *mens rea* requirement at all, is not illogical.”  *Id*.  The Court further explained that “although exclusion may indeed have serious consequences, we do not think excluding an individual under [section 1128(b)] on the basis of his conviction for a strict liability offense raises any significant concern with due process.”  *Id*. at 824.  The Court explicitly held that section 1128(b)(1)(A) “authorizes the Secretary to exclude from participation in Federal health care programs an individual convicted of a misdemeanor if the conduct underlying that conviction is factually related to fraud.”  *Id*. 
I conclude that the IG had a basis to exclude Petitioner pursuant to section 1128(b)(1)(A)(i) of the Act.  Petitioner was convicted within the meaning of 1128(i) of the Act when the district court accepted his guilty plea to a superseding misdemeanor information, and Petitioner’s criminal conduct occurred well after August 21, 1996.  IG Ex. 7 (plea agreement).  Petitioner was convicted of “Fraud in Connection with Identification documents – Possession of Identification Document to Defraud the United States.”  IG Ex. 2 at 1.  On its face, Petitioner’s crime is undoubtedly related to fraud.  Further, Petitioner’s offense was committed in connection with the delivery of a health care item or service, as evidenced by the fact that Petitioner acknowledged that he used the identity and credentials of another individual so that he could obtain employment as a registered nurse and director of nursing.  IG Ex. 7 at 6-7.

Petitioner’s conviction clearly meets the elements set forth in section 1128(b)(1) of the Act.  Petitioner has a federal conviction for knowingly possessing a false identification document to defraud the United States.  IG Ex. 2 at 1; *see*IG Ex. 7 at 2.  But for this fraud, Petitioner, as a nurse whose license had been revoked in both Oregon and Washington, would have been unable to obtain employment as a registered nurse and director of nursing.  IG Ex. 7 at 6-7.

**Page 8**

Petitioner received a largely favorable outcome from the criminal justice system, in that he evaded a felony conviction and a lengthy sentence of incarceration.  *See*IG Ex. 6 at 2 (probable cause affidavit reporting that “there is substantial evidence supporting probable cause to believe that [Petitioner] committed the felony violation of Social Security Number Misuse” pursuant to 42 U.S.C. § 408(a)(7)(B)).  IG Ex. 6 at 2.  The instant IG exclusion is a backstop that prevents the continued participation of an untrustworthy individual in federal health care programs.  *See Valentine Okonkwo*, DAB No. 2832 at 5 (2017) (stating that exclusion is “a remedial measure to ‘protect federal health care programs and their beneficiaries from individuals who have been shown to be untrustworthy.’”);*Donald A. Burstein*, *Ph.D.*, DAB No. 1865 at 12 (2003) (“It is well-established that section 1128 exclusions are remedial in nature, rather than punitive, and are intended to protect federally-funded health care programs from untrustworthy individuals.”).  The IG had a legitimate basis to exclude Petitioner pursuant to section 1128(b)(1) of the Act because he committed fraud in order to continue to be employed as a registered nurse after two jurisdictions had revoked his fraudulently obtained nursing licenses.  *See Friedman v. Sebelius*, 686 F.3d at 824.

******The length of a permissive exclusion under section 1128(b)(1) is three years, unless a longer period is appropriate based on aggravating factors or a shorter period is appropriate based on mitigating factors.***
	***Pursuant to 42 C.F.R. § 1001.201(b)(2)(ii), it is an aggravating factor when the acts resulting in the conviction, or similar acts, were committed over a period of one year or more.***
	***Petitioner admitted that his offense conduct began on or about March 22, 2013, and continued through September 18, 2019.***
	***The IG properly applied the aggravating factor that the acts resulting in the conviction, or similar acts, were committed over a period of one year or more.***
	***Pursuant to 42 C.F.R. § 1001.201(b)(2)(iv), it is an aggravating factor when the sentence of a court included incarceration.***
	***Petitioner was ordered to participate in the location monitoring program with Active Global Positioning Satellite for a period of 30 days, during which time he was restricted to his residence “at all times except for employment, religious services, medical, legal reasons, or otherwise approved by the location monitoring specialist.”********Page 9**

******The IG properly applied the aggravating factor that the sentence included incarceration.***
	***Pursuant to 42 C.F.R. § 1001.201(b)(2)(v), it is an aggravating factor when the individual or entity has a documented history of criminal, civil or administrative wrongdoing.***
	***Petitioner had a documented history of administrative wrongdoing, as evidenced by the revocation of his fraudulently obtained nursing licenses in two jurisdictions.***
	***The IG properly applied the aggravating factor of a documented history of criminal, civil, or administrative wrongdoing.***
	***Pursuant to 42 C.F.R. § 1001.201(b)(2)(vii), it is an aggravating factor when the individual or entity has been the subject of any other adverse action by any Federal, State, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.***
	***Petitioner was the subject of a July 2021 cease and desist order to not practice nursing without a license in the state of Washington based on his continued practice of nursing under a “stolen identity.”***
	***The IG properly applied the aggravating factor that Petitioner had been the subject of an adverse action based on the same set of circumstances that serves as the basis for the imposition of the exclusion.***
	***Petitioner has not shown the presence of any mitigating factors.***
	***Based on the IG’s application of four aggravating factors and no mitigating factors, a six-year exclusion, effective January 19, 2023, is not unreasonable.******The period of exclusion under section 1128(b)(1) is three years, unless “the Secretary determined in accordance with published regulations that a shorter period is appropriate because of mitigating circumstances or that a longer period is appropriate because of aggravating circumstances.”  42 U.S.C. § 1320a-7(c)(3)(D); *see*42 C.F.R. § 1001.201(b)(2), (3).  An ALJ may consider only the aggravating and mitigating factors enumerated in 42 C.F.R. § 1001.201(b)(2) and (3).

**Page 10**

First, the IG considered that the acts resulting in Petitioner’s conviction were committed over a period of one year or more.  IG Ex. 1 at 1; *see*42 C.F.R. § 1001.201(b)(2)(ii).  In his plea agreement, Petitioner admitted that his offense conduct began on or about March 22, 2013, and continued through September 18, 2019.  IG Ex. 7 at 6-7.  Petitioner does not dispute the IG’s application of this aggravating factor, and the evidence of record supports the more than six-year duration of the criminal activity underlying Petitioner’s conviction.

The IG also considered that Petitioner was sentenced to incarceration.  IG Ex. 1 at 2; *see*42 C.F.R. § 1001.201(b)(2)(iv).  The district court ordered that Petitioner “participate in the location monitoring program with Active Global Positioning Satellite for a period of 30 days,” during which time he was restricted to his residence “at all times except for employment, religious services, legal reasons, or otherwise approved by the location monitoring specialist.”  IG Ex. 2 at 4.  Petitioner does not dispute the IG’s application of this aggravating factor, and the evidence of record supports that the IG was authorized to lengthen the exclusion based on Petitioner being sentenced to incarceration.  *See*42 C.F.R. § 1001.2 (defining “incarceration” as “imprisonment or any type of confinement with or without supervised release, including, but not limited to, community confinement, house arrest and home detention”); *Roji Esha*, DAB No. 3076 at 15 (2022) (“Although [the ALJ] noted that [the petitioner] served the sentence via an ‘electronic monitoring program,’ she correctly recited the regulatory definition of ‘incarceration,’ which encompasses both prison and non-prison forms of ‘confinement’ such as ‘community confinement, house arrest and home detention,’ and renders irrelevant any differences among them for the purpose of determining whether a petitioner was or was not sentenced to ‘incarceration.’”).

The IG also considered as a basis for lengthening the exclusion that Petitioner had a documented history of criminal, civil or administrative wrongdoing, noting that both Oregon and Washington had revoked his nursing license.  IG Ex. 1 at 2; *see*42 C.F.R. § 1001.201(b)(2)(v).  In fact, the basis for the revocation of Petitioner’s Oregon nursing license was that he “fraudulently obtained his Registered Nurse license by forging the signature of his preceptor on his re-entry paper work” and used a fraudulent Social Security number on his application for re-entry.  IG Ex. 4 at 1.  And the Agreed Order revoking his Washington nursing license stipulated that after his nursing license had been suspended, Petitioner submitted an employment application in someone else’s name that included unidentified Social Security and driver’s license numbers.4  IG Ex. 5 at 3.  The

**Page 11**

evidence reflects that Petitioner’s nursing licenses were revoked based on his fraudulent acts to obtain a license and his continuation of work as a nurse even after his licenses had been suspended.  Although Petitioner disputes that he used a fraudulent Social Security number, claiming that there was an error in his Social Security record, he does not dispute that he stipulated that he continued to practice nursing in Washington after his license had been suspended in that jurisdiction, submitted an employment application listing someone else’s name rather than his own name, and listed another driver’s license number on his application.  IG Ex. 5 at 3.  Petitioner also attempts to justify his conduct that resulted in the revocation of his Oregon license, yet he does not deny that his Oregon license was revoked and he withdrew his request for hearing to challenge the revocation of his Oregon nursing license.  IG Ex. 4 at 1-2.  The revocation of Petitioner’s Oregon and Washington licenses, and the misconduct underlying those revocations, both amount to administrative wrongdoing; the IG was authorized to lengthen the exclusion pursuant to 42 C.F.R. § 1001.201(b)(v).

Finally, the IG applied a fourth aggravating factor based on Petitioner being “the subject of any other adverse action by any Federal, State, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.”  IG Ex. 1 at 2; *see*42 C.F.R. § 1001.201(b)(2)(vii).  The IG determined that “[t]he State of Washington ordered [Petitioner] to cease and desist from engaging in any and all conduct constituting the practice of nursing in the state of Washington.”5  IG Ex. 1 at 2; *see also*IG Ex. 8 at 7-10 (order finding that Petitioner engaged in the unlicensed practice of nursing through his use of a “stolen identity” and ordering that he permanently cease and desist “from engaging in any and all conduct constituting practice of nursing in the state of Washington unless [he] has first obtained appropriate licensure or otherwise meets an exemption”).  Petitioner does not dispute that he was the subject of a cease and desist order, or that the order was based on the same conduct serving as the basis for the exclusion (e.g., using another individual’s name, identification, and credentials to circumvent a nursing license revocation and obtain employment as a nurse).  Rather, Petitioner argues that he has complied with the cease and desist order.  P. Br.  Petitioner’s purported compliance with an adverse action by a state licensing board is irrelevant; the relevant question is whether the Washington State Department of Health *issued* a cease and desist order based on the same circumstances that served as the basis for the exclusion; it did.  The IG appropriately considered this aggravating factor.

A six-year period of exclusion, with a lengthening of the standard period of exclusion, is not unreasonable and is undoubtedly within a reasonable range, particularly when several of the aggravating factors relate to fraudulent conduct.  The DAB has explained that

**Page 12**

“[c]omparisons with other cases are not controlling and of limited utility,” and that the length of an exclusion “must be evaluated based on the circumstances of a particular case.”  *Robert Hadley Gross*, DAB No. 2807 at 6 (2017).  The DAB has further explained that, in determining the duration of an exclusion, the IG “chose to rely on predominantly quantifiable standards, such as incarceration, the amount of the damage, the duration of the conduct, and prior records of wrongdoing,” and “go to assessing the seriousness of the past misdeeds in order to assess the nature of the future threat to the programs or patients.”  *Joann Fletcher Cash*, DAB No. 1725 (2000).  Petitioner has a history of fraudulent conduct dating back well more than a decade.  Petitioner’s nursing license was revoked because he submitted fraudulent documents to obtain that license.  And despite a suspension and revocation of his license, he continued to work as a nurse by fraudulently using another nurse’s identity.  The IG had a legitimate basis to lengthen Petitioner’s exclusion by three years based on the application of four aggravating factors.

Without citing a specific regulatory mitigating factor or factors, Petitioner argues that the IG did not adequately consider evidence warranting mitigation of the length of his exclusion.6  P. Br.; *see*42 C.F.R. § 1001.201(b)(3) (list of mitigating factors).  Petitioner has the burden of proving any mitigating factors.  *See*42 C.F.R. § 1005.15(b); *Andrew Louis Barnett*, DAB No. 2887at 8 (2018), citing *Hussein Awada, M.D.*, DAB No. 2788 at 3 (2017) (“Petitioner had the burden in the ALJ proceeding to prove the existence of any mitigating factor.”); *see also*Standing Pre-Hearing Order § 7.  Petitioner compares himself to a “Good Samaritan,” arguing that his unauthorized practice of nursing under a stolen identity was beneficial due to an “acute staffing shortage.”  P. Br.  Although irrelevant to these proceedings, Petitioner also attempted to justify his underlying conduct that caused the revocation of his license (i.e., forging the signature of his preceptor on his re-entry paperwork).  P. Br.; *see*IG Ex. 4.  Finally, Petitioner self-identifies mental disorders, argues that he was hospitalized for a panic attack in 2006, and claims that childhood trauma adversely affected him.  P. Br.  However, Petitioner has not argued, much less presented evidence, that “[t]he record of criminal proceedings, including sentencing documents, demonstrates that the court determined that [he] had a mental, emotional, or physical condition, before or during the commission of the offense, that reduced [his] culpability.”  42 C.F.R. § 1001.201(b)(3)(ii).

Petitioner has not identified any regulatory mitigating factors that were not considered by the IG in determining the length of the exclusion.  I conclude that an exclusion for a minimum period of six years is not unreasonable.

**Page 13**

V.  Conclusion

For the foregoing reasons, I affirm the IG’s exclusion of Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a period of six years, effective January 19, 2023.

Endnotes

1  I omit reference to 42 U.S.C. § 1320a-7(b)(1)(B), which was cited by the IG in her December 2022 notice, because it is irrelevant to the instant circumstances.  *See*IG Ex. 1 at 1 (paraphrasing entire text of 42 U.S.C. § 1320a-7(b)).

2  Because Petitioner’s brief is not paginated, I do not provide pinpoint citations to his brief.

3  My findings of fact and conclusions of law are set forth in italics and bold font.

4  The basis for the suspension of Petitioner’s Washington nursing license was that his “credential to practice as a registered nurse in the State of Oregon was revoked by the Board Nursing for fraudulently obtaining his registered nurse license by forging the signature of his preceptor on his re-entry paper work” and using “a fraudulent social security number on his re-entry application.”  IG Ex. 5 at 3.

5   Although not addressed by the IG in her December 30, 2022 notice, the cease and desist order also imposed a civil fine of $1,000.  IG Ex. 8 at 3; *see*IG Ex. 1.

6  I note that the short-form brief I provided as a template for Petitioner included a list of the regulatory mitigating factors.
  
          /s/
        Leslie C. Rogall

                      Administrative Law Judge Back to top
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