Aria Westfall, DAB CR6208 (2022)

DECISION

The Inspector General of the U.S. Department of Health and Human Services (IG) excluded Petitioner Aria Westfall (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for 12 years pursuant to section 1128(a)(4) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(4)).  Petitioner challenges the exclusion.  For the reasons stated below, it is concluded that the IG had a basis for excluding Petitioner from program participation and that the 12-year exclusion period is reasonable. 

I. Background and Procedural History

On April 29, 2022, the IG notified Petitioner of her exclusion from participation in Medicare, Medicaid, and all federal healthcare programs under section 1128(a)(4) of the Act for a minimum of 12 years.  IG Exhibit (Ex.) 1.  The exclusion is due to Petitioner’s felony convictions in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, State of Florida (State Court) for criminal offenses related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  IG Ex. 1.

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In the exclusion notice, the IG listed two aggravating factors that were the basis for increasing the exclusion period: 1) the State Court sentenced Petitioner to 6 years of incarceration and 2) the State of Florida Board of Nursing (State Board) revoked, on July 13, 2021, Petitioner’s nursing license and advanced practice nursing license due to her felony convictions.  IG Ex. 1 at 1-2; IG Ex. 7 at 3-7. 

On June 22, 2022, Petitioner timely sought a hearing before an administrative law judge (ALJ).  On June 29, 2022, the Civil Remedies Division (CRD) issued an acknowledgement letter setting a date for a prehearing conference, along with the CRD Procedures and a non-discrimination notice. 

A prehearing conference was held by telephone on July 26, 2022.  At the conference, Petitioner requested a waiver from using the Departmental Appeals Board electronic filing system due to her incarceration, and her request was granted.  Following the prehearing conference, on July 27, 2022, an Order and Schedule for Filing Briefs and Documentary Evidence was issued.  In that Order, the substance of the prehearing conference was summarized, and a briefing schedule was set. 

On August 26, 2022, the IG submitted an informal brief (IG Br.) and seven proposed exhibits (IG Exs. 1-7).  On October 25, 2022, Petitioner submitted a prehearing exchange, consisting of an informal brief with supporting documents (P. Br.).  The IG submitted a reply brief on November 3, 2022. 

II. Admission of Exhibits and Decision on the Record

The parties agree that an in-person hearing is not necessary to resolve this matter.  IG Br. at 9; P. Br. at 14.  Therefore, this matter will be decided on the written record.

The IG did not object to Petitioner’s prehearing exchange, so it will be admitted into the record.  Petitioner did not file any objections to the IG’s proposed exhibits.  Therefore, IG Exs. 1-7 will be admitted into the record.

III. Issues

The issues are whether the IG has a basis to exclude Petitioner from participation in Medicaid, Medicare, and any federal healthcare programs and, if so, whether the 12-year exclusion imposed by the IG is reasonable. 

IV. Jurisdiction

Jurisdiction is provided under 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

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V. Legal Authorities

The Secretary of the U.S. Department of Health and Human Services shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual or entity has been convicted of a criminal offense related to the delivery of an item or service under title XVIII or any State health care program.  42 U.S.C. § 1320a-7(a)(1).  The Act requires a minimum exclusion period of five years when the exclusion is mandated under section 1320a-7(a).  42 U.S.C. § 1320a-7(c)(3)(B).  The IG has the discretion to impose an exclusion longer than the minimum period when aggravating factors are present.  42 C.F.R. § 1001.102.  Here, the IG has imposed a 12‑year exclusion.

In exclusion cases, the IG has the burden of proving the basis for the exclusion and the existence of any aggravating factors.  42 C.F.R. § 1001.102(b).  The standard of proof is a preponderance of the evidence, which means a fact is proven if the evidence shows that it is more likely true than not true.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  In this case, the IG must prove that Petitioner was convicted of a felony offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance under state law. 

The standard of proof is a preponderance of the evidence, and there may be no collateral attack of the conviction that provides the basis of the exclusion.  42 C.F.R. § 1001.2007(c), (d).  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).

An excluded individual may request a hearing before an ALJ, but only on the issues of whether the IG had a basis for the exclusion and whether an exclusion longer than the required minimum period is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a), 1005.2(a). 

VI. Findings of Fact

At all times relevant to this matter, Petitioner was a registered nurse or an advanced practice registered nurse in the State of Florida.  IG Ex. 7 at 8.

In February and March 2019, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) were investigating a report of methamphetamine trafficking involving Petitioner and her husband, D.W.  P. Br. at 26.

On or about March 29, 2019, a search warrant was executed on Petitioner’s home.  Law enforcement agents found six large Ziploc bags containing methamphetamine in a kitchen cabinet above the refrigerator.  P. Br. at 27.  Also found was a large amount of

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cash, a “ledger,” a scale in the laundry room, and a receipt for a $2000 wire transfer with Petitioner’s name.  P. Br. at 27. 

The State of Florida charged Petitioner and D.W. with numerous felony offenses related to the trafficking and conspiracy to traffic controlled substances.  IG Exs. 1, 2.  Petitioner was convicted, by jury, of one count of Possession of a Place for Trafficking in or Manufacturing a Controlled Substance (a second-degree felony) and one count of Conspiracy to Traffic in 14 Grams or More of the Controlled Substance of Methamphetamine (a first-degree felony).  IG Exs. 3, 4.  The proceedings took place in the Circuit Court of the Fourth Judicial Circuit in and for Duval County, State of Florida.  IG Exs. 3, 4. 

On June 2, 2021, the State Court sentenced Petitioner to six years of incarceration, to be served concurrently.  IG Ex. 5.  Petitioner is currently incarcerated for those convictions.  

On October 25, 2021, the State of Florida Board of Nursing issued a Final Order regarding settlement agreements with Petitioner.  IG Ex. 7.  The settlement agreements revoked Petitioner’s license to practice as a registered nurse and an advanced practice registered nurse in the State of Florida.  IG Ex. 7 at 4, 9. 

VII. Analysis and Conclusions of Law¹

A. Petitioner was convicted of felony offenses related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, which subjects her to a mandatory exclusion from all federal health care programs for a minimum of five years. 

In order to prevail, the IG must prove that Petitioner was convicted of an offense, which occurred after August 21, 1996, under Federal or State law, consisting of a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  42 U.S.C. § 1320a-7(a)(4).  Under the Act, an individual is considered to have been convicted of a criminal offense “when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to the criminal record has been expunged.”  Act § 1128(i)(3) (42 U.S.C. § 1320a-7(i)(3)); see also 42 C.F.R. § 1001.2 (paragraph (c) under the definition of “Convicted”). 

It is undisputed that Petitioner was convicted of one count of Possession of a Place for Trafficking in or Manufacturing a Controlled Substance (a second-degree felony) and one

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count of Conspiracy to Traffic in 14 Grams or More of the Controlled Substance of Methamphetamine (a first-degree felony).  P. Br. at 1; IG Exs. 3, 4. 

The IG has the burden of proving that Petitioner’s conviction was related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.  The term “related to” simply means that there must be a nexus or common-sense connection.  See 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); see also Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998). 

Based on the evidence, it is clear that Petitioner’s conviction meets that broad, common‑sense standard.  After an investigation, a search of Petitioner’s home, by law enforcement, yielded methamphetamine, a large amount of cash, and other items that allude to the trafficking and distribution of a controlled substance. 

While Petitioner does not dispute that she was convicted of a criminal offense, she argues that her “individual case has no involvement regarding [her] professional conduct, competence, performance as a medical professional for over 14 years, or financial integrity.”  P. Br. at 3.²  Petitioner explains at length that the evidence does not support her conviction, explaining that her husband is the one responsible for storing and trafficking the drugs in her home.  RFH; see P. Br. at 4-5.  However, Petitioner’s arguments are collateral attacks on the underlying conviction.  The record shows that Petitioner was convicted, by jury, of two felonies related to the trafficking of a controlled substance and was sentenced to six years of incarceration.  IG Exs. 2, 4, 5.  The details of Petitioner’s convictions and sentence are outlined in a signed judgment issued by the State Court.  IG Exs. 4, 5.  Petitioner’s attempts to deny guilt, shift blame, or downplay her role in the underlying criminal conduct resulting in her conviction constitutes an impermissible collateral attack on her convictions, which is prohibited by the regulations.  

When the exclusion is based on the existence of a . . . determination by another Government agency, or any other prior determination where the facts were adjudicated and a

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final decision was made, the basis for the underlying . . . determination 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). 

The IG has provided sufficient, relevant evidence to prove that Petitioner was convicted of felony offenses related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance that occurred after August 21, 1996.  As such, the IG has met the burden of proof and there is a basis for the exclusion. 

B. The IG has identified two aggravating factors that support an exclusion beyond the five-year minimum.

Exclusions imposed under section 1128(a)(4) carry a five-year mandatory minimum exclusion period.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)); 42 C.F.R. § 1001.102(a).  The IG may extend the five-year exclusion period based on the application of the aggravating factors listed in 42 C.F.R. § 1001.102(b).  If any of the aggravating factors set forth in 42 C.F.R. § 1001.102(b) justifies an exclusion longer than five years, mitigating factors listed at 42 C.F.R. § 1001.102(c) may be considered as a basis for reducing the period of exclusion to no less than five years.  The IG bears the burden of persuasion with respect to aggravating factors and Petitioner bears the burden of persuasion with respect to mitigating factors.  42 C.F.R. § 1005.15(c).  Here, the IG relies on two aggravating factors to impose a 12-year exclusion:  1) Petitioner’s sentence included incarceration; and 2) Petitioner was subject to an adverse action by the Florida Board of Nursing.  IG Br. at 4-5. 

The State Court sentenced Petitioner to a term of six years, to be served concurrently, with 32 days of credit for time served.  IG Ex. 5 at 3-6.  Because Petitioner was sentenced to a substantial term of incarceration, the IG had a reasonable basis to lengthen the exclusion.  42 C.F.R. § 1001.102(b)(5). 

In addition, Petitioner was subject to other adverse actions based on the same circumstances that support the exclusion.  As a result of her conviction, the Florida State Board revoked Petitioner’s licenses to practice as a registered nurse and advanced practice registered nurse.  IG Ex. 7.  However, Petitioner argues that the revocation of her nursing licenses should not be considered an aggravating factor; instead, it should be considered a mitigating factor, because her “cooperation” with the State Board “resulted in a formal settlement agreement in which [she] forewent a formal hearing in exchange for [her] ability to reapply for licensure in the future.”  P. Br. at 6, 8.

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Petitioner’s argument is without merit.  The administrative complaint from the Florida Department of Health, states that Petitioner’s convictions “constitute[] grounds for disciplinary action.”  See IG Ex. 7 at 19; see also Fla. Stat. § 464.018 (2021).  Petitioner agreed for the State Board to revoke her licenses in lieu of an administrative hearing, so she would reserve the right to apply for reinstatement in the future.³  See IG Ex. 7;P. Br. at 79.  The record shows that the State Board sought disciplinary action, regardless of whether Petitioner agreed to the revocations.  Furthermore, as explained below, this conduct does not rise to the level of cooperation as defined in the regulations to establish a mitigating factor.  Because the State Board’s adverse action was based on the same facts and circumstances underlying Petitioner’s convictions and exclusion, the IG had a reasonable basis to lengthen the exclusion based on this aggravating factor.  42 C.F.R. § 1001.102(b)(9). 

C. No mitigating factors exist to reduce the exclusion period.  

The regulations provide a list of mitigating factors that may be applied to reduce an exclusion to no less than five years if aggravating factors are present.  42 C.F.R. § 1001.102(c).  The applicable regulations identify only three mitigating factors that may be considered to reduce a period of exclusion:  (1) a petitioner was convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $5,000; (2) the record in the criminal proceedings demonstrates that the court determined that a petitioner had a mental, physical, or emotional condition that reduced their culpability; and (3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty (CMP) being imposed.  42 C.F.R. § 1001.102(c).

Petitioner argues that a mitigating factor exists under 42 C.F.R. § 1001.102(c)(3).  P. Br. at 7-8.  In support of her argument, Petitioner states that her “cooperation” with the State Board “resulted in a formal settlement agreement in which [she] forewent a formal hearing in exchange for [her] ability to reapply for licensure in the future.”  P. Br. at 8.  In addition, Petitioner argues that she “surrendered [her] license with the [Drug

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Enforcement Administration (DEA)]” and “cooperated with state officials and the ATF to convict her co-conspirator prior to her trial and provided any information [she] possessed during a ‘proffer.’”  P. Br. at 10. 

While Petitioner argues that there is mitigating evidence in this case, she has not submitted any probative evidence to substantiate the presence of any regulatory mitigating factors.  Petitioner’s “cooperation” with the State Board or her license surrender to the DEA does not meet the requirements of 42 C.F.R. § 1001.102(c)(3) because it did not result in others being convicted or excluded, additional cases being investigated, or a CMP being imposed.  Likewise, Petitioner did not provide evidence to establish that her alleged cooperation with law enforcement officials resulted in the conviction of her husband and co-defendant.  Petitioner’s prehearing exchange contains an appellant brief that establishes, at best, that she and her husband were co-conspirators.  See P. Br. at 18-72.  There is no evidence that Petitioner testified against her husband at trial, or that she provided information before her trial that led to her husband’s conviction.  Mitigation pursuant to section 1001.102(c)(3) not only requires cooperation, but it also requires that the cooperation produce a specific result, namely other convictions, exclusions, investigations, reports being issued that identify program vulnerabilities and/or civil monetary penalties or assessments.  Begum v. Hargan, No. 16 CV 9624, 2017 WL5624388, at *8 (N.D. Ill. Nov. 21, 2017) (“The text of 42 C.F.R. § 1001.102(c)(3) raises a high standard. . . . Mere cooperation is not enough to establish the mitigating factor; the cooperation must result in an investigation, conviction, or report.”).  As such, Petitioner has failed to meet her burden to establish any mitigating factors under 42 C.F.R. § 1001.102(c).

Petitioner also argues that her work ethic and performance prior to her conviction support a shortened term of exclusion.  RFH.  To support her argument, Petitioner provided several letters written by her colleagues to the sentencing judge in her criminal matter.  P. Br. at 73-78.  However, as the IG correctly points out, an individual’s good character and reputation are not cognizable mitigating factors under the governing regulations and, therefore, cannot be considered in determining the length of exclusion.  See 42 C.F.R. § 1001.102(c); see also Yolanda Hamilton, M.D., DAB No. 3061 at 18-19 (2022) (Board agreeing with the ALJ that petitioner’s arguments that her patients thought well of her and that she is a good physician are to no avail).  Petitioner also cites a nursing shortage in challenging the length of exclusion.  RFH.  Likewise, a nursing shortage cannot be considered in determining the length of exclusion.  See 42 C.F.R. § 1001.102(c).

D. Based on the two aggravating factors and lack of mitigating factors, I find that the 12-year exclusion imposed by the IG is not unreasonable. 

In determining whether the length of exclusion is unreasonable, I must determine whether the length of the exclusion falls into a “reasonable range” based on the evidence in the record.  The IG has broad discretion in determining the length of an exclusion, based on

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the IG’s “vast experience” in implementing exclusions.  Craig Richard Wilder, DAB No. 2416 at 8 (2011) (citing 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992)).  The regulations provide that the IG’s proposed exclusion must be upheld as long as the length of exclusion is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  It is important to note that it is the quality of the aggravating (or mitigating) factors that is most important when considering the length of exclusion and not the sheer number of aggravating factors that are present in a given case.  As the Secretary stated in the preamble to the final rule establishing the exclusion regulations:

We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case.  For example, in one case many aggravating factors may exist, but the subject’s cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating.  Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating.  The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue. 

57 Fed. Reg. at 3314-15 (1992).  

Petitioner argues that the “lengthened exclusion period is nonetheless not justified by the cited aggravating factors by the IG.”  P. Br. at 7.  However, the severity of two aggravating factors and the absence of any mitigating factors support an increase in length of Petitioner’s exclusion period beyond the five-year minimum.  Petitioner was sentenced to a term of six years of incarceration—double the three-year mandatory minimum.  See IG Ex. 5 at 6.  This substantial prison term reflects the seriousness of Petitioner’s offense, justifying a longer period of exclusion.  See, e.g., Gracia L. Maynard, M.D., DAB No. 2767 at 8 (2017) (petitioner’s sentence is “an unmistakable reflection of the . . . Court’s assessment of Petitioner’s untrustworthiness”); see also Raymond Lamont Shoemaker, DAB No. 2560 at 8 (2014); Juan De Leon, Jr., DAB No. 2533 at 6 (2013) (noting that “a substantial period of incarceration would, on its own, justify the I.G. in increasing an exclusion significantly in excess” of the mandatory minimum and noting that the Board “once characterized a nine month incarceration, which included a period of work release, as relatively substantial”); Jason Hollady, M.D., DAB No. 1855 at 12 (2002) (the Board characterizing a nine-month incarceration as “relatively substantial”).

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In addition, the adverse actions taken against Petitioner by the State Board serve as additional evidence of the seriousness of Petitioner’s criminal offense.  See Maynard, DAB No. 2560 at 8 (citing Narendra M. Patel, M.D., DAB No. 1736 at 29 (2000) (noting that “the fact of additional adverse action beyond the conviction could be considered as additional evidence of the seriousness of the underlying conduct”), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003)); see also Fereydoon Abir, M.D., DAB No. 1764 at 8 (2001) (stating that “a determination by a state regulatory body that the conduct in question was not only criminal but was a basis for exclusion from the Medicaid program has a bearing on trustworthiness.”). 

Petitioner argues that the length of her exclusion is punitive in nature and violates the double jeopardy clause.  See P. Br. at 10-11.  Exclusions imposed by the IG are civil sanctions, remedial in nature, and not punitive and criminal.  Because exclusions are remedial sanctions, they do not violate the double jeopardy clause or the prohibition against cruel and unusual punishment.  Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Greene v. Sullivan, 731 F. Supp. 838 (E.D. Tenn. 1990); Joann Fletcher Cash, DAB No. 1725 (2000); Douglas Schram, R.Ph., DAB No. 1372 (1992); Janet Wallace, L.P.N., DAB No. 1326 (1992).  Arguments that the exclusion provisions are anything but remedial have been found to be without merit.  Manocchio, 961 F.2d at 1541-42; Greene, 731 F. Supp. at 839-40.  Many federal courts have also rejected claims that the Secretary’s exclusion procedures amount to a deprivation of due process, finding no constitutionally protected property or liberty interests.  Rodabaugh v. Sullivan, 943 F.2d 855 (8th Cir. 1991); Lavapies v. Bowen, 883 F.2d 465 (6th Cir. 1989); Hillman Rehab. Ctr. v. U.S. Dep’t. of Health & Human Servs., No. 98-3789 (GEB), slip op. at 16, 1999 WL 34813783, at 16 (D.N.J. May 13, 1999); Travers v. Sullivan, 801 F. Supp. 394, 404-05 (E.D. Wash. 1992), aff’d, Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994). 

To the extent that Petitioner seeks equitable relief on grounds that her exclusion is unfair, I have no authority to grant such relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).  Based on the evidence submitted, I find that the 12-year exclusion imposed by the IG is not unreasonable.

VIII. Conclusion

The IG properly excluded Petitioner from participating in Medicare, Medicaid, and other federal health care programs.  The 12-year exclusion is reasonable based upon the circumstances of this case.

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Endnotes

¹ My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

² In her brief, Petitioner cites to 42 C.F.R. § 1001.501(a)(2) (42 U.S.C. § 1320a-7(b)(4)(B)) to support this argument.  That regulation authorizes the IG to exclude an individual who surrendered a license to provide health care “while a formal disciplinary proceeding concerning the individual’s . . . professional competence, professional performance[,] or financial integrity was pending before a State licensing authority.”  This regulation is applicable to permissive exclusions, not mandatory exclusions, as imposed by the IG in the instant case.  Also, Petitioner did not surrender her license—it was revoked, as further explained below.  See infra p. 7.

³ Even if Petitioner surrendered her nursing license, the fact that it was in lieu of revocation is enough to establish an adverse action under the regulations.  See, e.g., Richard Duane Johns, DAB CR5379 at 6 (2019) (Petitioner’s surrender of his Arkansas medical license in lieu of his appearance for a disciplinary hearing was based on the same facts underlying his conviction and exclusion and is also properly considered an adverse action that is an aggravating factor pursuant to 42 C.F.R. § 1001.102(b)(9)); Jason RH Castle, M.D., DAB CR6112 at 8 (2022) (The fact that [Petitioner] surrendered his license does not negate the fact that this was “in lieu of revocation” and he is unable to practice medicine in the Commonwealth of Kentucky for a minimum of two years.)(emphasis added).