Norlane Sloan, CR6272 (2023)

DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, Norlane Sloan, from participating in Medicare, Medicaid, and other federally funded healthcare programs for a minimum period of five years.  

I.  Background

Petitioner requested a hearing to challenge the IG’s exclusion determination.  The IG filed a brief and a reply brief along with five exhibits that are identified as IG Ex. 1-IG Ex. 5.  Petitioner filed a brief (P. Br.).  In addition, she filed documents that are unmarked as exhibits.  One of these is a Stipulation and Consent Order issued by the Minnesota Board of Nursing with an attached cover letter dated August 8, 2022.  I identify this exhibit as P. Ex. 1.  Another document consists of an apparent performance appraisal.  I identify this exhibit as P. Ex. 2. 

Neither party objected to my receiving exhibits.  I receive into evidence IG Ex. 1-IG Ex. 5 and P. Ex. 1-P. Ex. 2.  Neither the IG nor Petitioner offered witness testimony.  Consequently, I decide this case based on the parties’ written exchanges. 

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II.   Issue, Findings of Fact and Conclusions of Law

A.  Issue

The issue is whether the IG is required to exclude Petitioner for a minimum of five years. 

B.  Findings of Fact and Conclusions of Law.

The IG excluded Petitioner pursuant to the requirements of section 1128(a)(1) of the Social Security Act (Act).  This section mandates the exclusion of any individual who is convicted of a crime relating to the delivery of an item or service under Medicare or a state health care program (Medicaid program). 

Petitioner is a nurse.  Petitioner does not deny that she was convicted of a section 1128(a)(1) crime.  On August 30, 2021, a state court jury in Minnesota found Petitioner guilty of charges that she had defrauded that State’s Medicaid program by submitting time sheets for private duty nursing services to that program for services that she and her sister did not provide.  IG Ex. 3; IG Ex. 2 at 1-5.  Her crimes had a substantial financial impact:  Petitioner was charged with and convicted of unlawfully obtaining more than $48,000 in public funds.  IG Ex. 2 at 1-5; IG Ex. 3. 

Petitioner’s conviction plainly was for a crime as described at section 1128(a)(1) of the Act.  Conviction of fraud committed against Medicare or a Medicaid program is the essence of an excludable offense under that section. 

The Act requires that any individual excluded pursuant to section 1128(a)(1) be excluded for a minimum period of at least five years.  Act § 1128(c)(3)(B).  Here, the IG excluded Petitioner for the minimum mandatory period.¹ 

Petitioner challenges the length of the exclusion.  She argues that the exclusion should not be for a period that is longer than the period of nursing license revocation imposed against her by the Minnesota Board of Nursing – three years.  P. RFH at 2; see P. Ex. 1.  

I have no authority to reduce the length of Petitioner’s exclusion.  As I have explained, the Act requires that any exclusion that is imposed pursuant to section 1128(a)(1) must be for a period of at least five years.  

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Petitioner argues also that the start date of her period of exclusion should begin on November 2, 2021, the date when she was sentenced for her crimes, rather than in November 2022, when the IG determined to exclude her.  P. RFH at 2; IG Ex. 1; IG Ex. 4. 

I lack authority to backdate the start of Petitioner’s exclusion.  The inception of an exclusion is established by regulation and may not be changed on appeal.  42 C.F.R. §§ 1001.2002(b), 1005.4(c)(1). 

¹  Although the IG excluded Petitioner for the minimum mandatory period, there exists evidence that might have justified a lengthier exclusion period had the IG opted to impose one.  This evidence includes an adverse state administrative determination (license revocation by the Minnesota Board of Nursing) and a sentence that required a brief period of incarceration.  See P. Ex. 1; IG Ex. 1; 42 C.F.R. § 1001.102(b)(5), (9).