Diamond Deshields, DAB CR6439 (2024)

DECISION

Petitioner, Diamond Deshields, is excluded from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(3) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(3)), effective September 20, 2023.  Petitioner’s exclusion for the minimum period of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).¹  

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I.   Background

The Inspector General (IG) notified Petitioner by letter dated August 31, 2023, that she ² was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  The IG cited section 1128(a)(3) of the Act as the authority for Petitioner’s exclusion based on her felony conviction in the Commonwealth of Massachusetts Superior Court (state court) of a 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 IG excluded Petitioner for the minimum statutory period of five years.  IG Exhibit (Ex.) 1. 

Petitioner filed a request for hearing on September 19, 2023 (RFH).  The case was docketed and assigned to me on September 26, 2023.  I convened a prehearing conference by telephone on November 27, 2023, the substance of which is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated November 27, 2023 (Prehearing Order). 

The IG filed a motion for summary judgment and supporting brief on December 27, 2023, with IG Exs. 1 through 6.  Petitioner filed a response in opposition to the IG’s motion on January 22, 2024 (P. Br.) with no exhibits.  The IG filed a reply brief on February 1, 2024.  

Petitioner has not objected to my consideration of IG Exs. 1 through 6, and they are admitted as evidence. 

II.   Discussion

A.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights 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). 

Pursuant to section 1128(a)(3) of the Act, the Secretary must exclude from participation in any federal health care program: 

Any individual or entity that has been convicted for an offense which occurred after [August 21, 1996], under

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Federal or State law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program (other than those specifically described in [section 1128(a)(1)]) operated by or financed in whole or in part by any Federal, State, or local government agency, of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct. 

Act § 1128(a)(3); 42 C.F.R. § 1001.101(c).  

Pursuant to section 1128(i) of the Act, an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered by a federal, state, or local court whether or not an appeal is pending or the record has been expunged; (2) there is a finding of guilt in 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 has been withheld.  Act § 1128(i) (42 U.S.C. § 1320a-7(i)); 42 C.F.R. § 1001.2. 

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for no fewer than five years.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)); 42 C.F.R. § 1001.102(a).  

The standard of proof is a preponderance of the evidence.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  There may be no collateral attack of the conviction that is the basis for the exclusion on either substantive or procedural grounds.  42 C.F.R. § 1001.2007(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(c); Prehearing Order ¶ 4. 

B.  Issues

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

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

Whether the length of the period of exclusion is unreasonable. 

42 C.F.R. § 1001.2007(a)(1). 

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When, as in this case, the IG imposes the minimum authorized five-year exclusion under section 1128(a) of the Act, there is no issue as to whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(2). 

C.  Findings of Fact, Conclusions of Law, and Analysis

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

1.  Petitioner’s request for hearing was timely and I have jurisdiction. 

There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005. 

2.  Summary judgment is appropriate in this case. 

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 a 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, 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 set forth specific 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 evidence or attempt to determine the truth.  Rather, the judge accepts the

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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). 

The IG has moved for summary judgment.  There are no genuine disputes of material fact in this case.  All issues must be resolved against Petitioner as matters of law.  Accordingly, I conclude that summary judgment for the IG is appropriate. 

3.  Petitioner’s exclusion from participation in Medicare, Medicaid, and all other federal health care programs is required by section 1128(a)(3) of the Act. 

a.  Undisputed Facts

The following facts are undisputed.  All factual inferences are drawn in Petitioner’s favor on summary judgment. 

Petitioner was licensed to practice as a certified nurse aide (CNA) by the state of Massachusetts beginning February 12, 2020.  The license expired February 13, 2022.  IG Ex. 2. 

On October 27, 2022, Petitioner was charged in the state court by a grand jury indictment of one count of stealing or obtaining by false pretenses money in the amount and of a value more than to $250 from DG, a person over 60 years old between about November 17 and 20, 2020, in violation of Massachusetts law.  IG Ex. 3. 

On December 1, 2022, the Commonwealth of Massachusetts (Commonwealth) filed a statement of the case in the state court.  According to the document, investigators of the Attorney General’s Medicaid Fraud Division investigated an allegation that Petitioner committed larceny of over $250 from a person over 60 years of age or who was disabled.  More specifically it was alleged that between November 17 and 20, 2020, Petitioner was working as a CNA at a long-term care facility.  A resident of the facility – DG – who was over 60 years old, asked Petitioner to use his debit card to buy snacks for him, which Petitioner apparently did.  DG subsequently made the same request and Petitioner used DG’s debit card to withdraw $1,000 from DG’s account without permission.  Petitioner was confronted by facility staff and DG about the stolen money.  Petitioner did not return the money and her employment at the facility ended.  IG Ex. 4 at 1-2. 

The state court docket sheet shows that Petitioner pleaded not guilty to the charge on December 1, 2022.  IG Ex. 5 at 2.  On April 25, 2023, Petitioner withdrew her not guilty plea and pleaded guilty to the charge of larceny of over $250 from an individual over 60 years old.  The state court ordered that the case be “continued without a finding” until October 25, 2024.  Petitioner was sentenced to one year and six months of probation ending on October 24, 2024, and to pay a $90 victim/witness assessment.  IG Ex. 5 at 4.

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The state court’s findings on Petitioner’s guilty plea included the finding that there was a factual basis for the guilty plea.  IG Ex. 6.

b.  Analysis

The IG cites section 1128(a)(3) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute requires the Secretary to exclude from participation in any federal health care program any individual or entity:  

1. Convicted of a criminal offense under federal or state law;
2. The criminal offense occurred after August 21, 1996 (the date of enactment of the Health Insurance Portability and Accountability Act of 1996);
3. The criminal offense was committed
   1.  in connection with the delivery of a health care item or service, or
   2. with respect to any act or omission in a health care program other than Medicare or Medicaid, that is operated or financed by the federal, state, or a local government;
4. The criminal offense was a felony; and
5. The criminal offense was related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.  

Act § 1128(a)(3); 42 C.F.R. § 1001.101(c).  When the elements of section 1128(a)(3) of the Act are satisfied, Congress mandates exclusion and the Secretary and I have no discretion not to exclude.  I conclude that the elements that trigger mandatory exclusion under section 1128(a)(3) of the Act are satisfied in this case.  

Petitioner does not dispute that she pleaded guilty to stealing more than $250 dollars from DG, who was over 60 years old, by using his debit card to withdraw cash from his account.  IG Exs. 3, 4, and 5.  In Massachusetts, a crime punishable by death or imprisonment in the state prison is a felony.  Mass. Gen. Laws, ch. 274, § 1.³  Petitioner

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was charged with violation of Mass. Gen. Laws, ch. 266, § 30(5),⁴ which provides that stealing or other wrongful taking of an amount in excess of $250 from a person over 60 years old or from one who is disabled may be punished by 10 years in the state prison.  Therefore, Petitioner was convicted of a felony, specifically theft, under Massachusetts law. 

There is no dispute that the offense to which Petitioner pleaded guilty occurred between about November 17 and 20, 2020, which is after August 21, 1996. 

There is no dispute that the offense to which Petitioner pleaded guilty involved the theft of money from a resident of a long-term care facility where Petitioner was employed as a CNA and while she was acting in that role or had access to facility residents due to her role.  Petitioner does not dispute that she obtained DG’s debit card while she was delivering health care to DG.  Therefore, the undisputed facts show that the theft from DG was in connection with the delivery of a health care item or service because Petitioner was employed as a CNA to provide health care services to DG and other residents at her long-term care facility employer.  I conclude that the undisputed facts establish the required connection, rational link, or nexus between Petitioner’s criminal offense and the delivery of a health care item or service.  W. Scott Harkonen, MD, DAB No. 2485 at 6-10 (2012), aff’d, Harkonen v. Sebelius, No. C 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013). 

Petitioner argues, however, that mandatory exclusion pursuant to section 1128(a)(3) of the Act is not triggered because she was not convicted of any offense because the state court ordered that the case be continued without a finding until October 25, 2024, the day after Petitioner is scheduled to complete her probation.  RFH; P. Br.  Petitioner’s argument that she was not convicted of the criminal offense must be resolved against her as a matter of law. 

A continuance without a finding is authorized by Mass. Gen. Laws, ch. 278, § 18.⁵  Mass. Gen. Laws, ch. 6, § 1 ⁶ provides the following definition of conviction: 

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''Conviction'', an adjudication of a criminal matter resulting in any outcome except wherein the matter is dismissed or the accused is found to be not guilty, including, but not limited, to an adjudication of guilt with or without the imposition of a sentence, a plea of guilty, a plea of nolo contendere, an admission to sufficient facts, a continuance without a finding or probation. 

Therefore, in Massachusetts, any outcome of an adjudication in a criminal case is a conviction, unless that outcome is a dismissal or an acquittal.  The definition specifically lists a continuance without a finding as a conviction.  

The IG’s exclusion action is pursuant to federal law and federal law controls.  See Travers v. Shalala, 20 F.3d 993, 996 (9th Cir. 1994); Marc Schneider, DMD, DAB No. 2007 at 4-7 (2005); Henry L. Gupton, DAB No. 2058 at 5-8 (2007), aff’d sub nom. Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008); 42 C.F.R. § 1005.4(c)(1) (ALJ must follow federal statutes and regulations).  Therefore, the definition of conviction under Massachusetts law, which negates Petitioner’s argument, is not controlling.  Pursuant to section 1128(i) of the Act, an individual is convicted of a criminal offense when: 

1. a judgment of conviction has been entered by a federal, state, or local court whether or not an appeal is pending or the record has been 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 a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.  

(42 U.S.C. § 1320a-7(i)(1)-(4)); 42 C.F.R. § 1001.2.  There is no dispute that the state court ordered that Petitioner’s case be continued without a finding until October 25, 2024, the day after her probation is scheduled to end.  However, there is also no dispute that prior to issuing the order to continue the case the state court accepted Petitioner’s guilty plea and imposed a sentence.  IG Ex. 5 at 4.  Therefore, Petitioner was convicted as that term is defined by section 1128(i)(3) of the Act by the acceptance of her plea.  Further, by continuing Petitioner’s criminal case without a finding the state court did not enter a finding of guilt after accepting Petitioner’s guilty plea but delayed such a finding until after Petitioner had the opportunity to successfully complete the terms of her probation.  I assume that if Petitioner does successfully complete the terms of her

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probation, the state court will then take action to end Petitioner’s criminal proceedings without the need to find her guilty of the offense.  However, even if that is the case and it does occur, Petitioner remains convicted under section 1128(i)(3) of the Act because her guilty plea was accepted.  The state court’s action also amounts to a conviction under section 1128(i)(4) of the Act because a continuance without a finding is a deferred adjudication of guilt or other arrangement or program under which judgment of conviction is withheld. 

Accordingly, I conclude that Petitioner was convicted within the meaning of the Act.  I further conclude that all elements of section 1128(a)(3) of the Act are satisfied, and Congress has mandated that she be excluded from participation in Medicare and all federal health care programs.  

4.  Section 1128(c)(3)(B) of the Act requires a minimum exclusion of five years for any exclusion pursuant to section 1128(a) of the Act.  

I have concluded that a basis exists to exclude Petitioner pursuant to section 1128(a)(3) 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.  There is no review of the reasonableness of the five-year period of exclusion or any discretion to impose a lesser period.  42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2). 

5.  Petitioner’s exclusion is effective 20 days after the IG’s notice of exclusion.  

The regulation specifies that the effective date of Petitioner’s exclusion is 20 days after the date of the IG’s 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); Shaikh M. Hasan, M.D., DAB No. 2648 at 9 (2015) aff’d Hasan v. HHS, No. 1-15-cv-4687, ECF No. 27 (E.D.N.Y. July 10, 2017). 

6.  No equitable relief is available in this forum. 

Petitioner argues that one of the long-term care facility residents where she worked, who she refers to as a client, asked her to get snacks for him at the store using his debit card to pay for the snacks.  She argues she was charged with a crime because the resident later accused her of taking more money than was necessary to get his snacks.  Petitioner points out the accusation seems inconsistent with the fact that the resident asked her to make a second trip to the store for him.  She asserts the resident died and she was given a continuance without a finding and her case is scheduled to be dismissed in October 2024.  She requests another chance because she did not commit the crime and has no prior negative history.  She knows right from wrong.  She’s a single mother of a young girl and now she has no livelihood even though she committed no crime.  Petitioner informs me

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that she has completed two college courses, one for medical assistants and another for dental assistants, and she hopes to get a nursing degree.  She states this case has been very stressful for her and makes caring for her child difficult.  Caring for people is her passion and she has done that for nearly 10 years.  She concludes by stating she is determined and striving for greatness.  RFH; P. Br. 

Because she was convicted by the state court, I may not review whether Petitioner committed the crime and Petitioner may not attack or obtain review of her conviction in this forum.  42 C.F.R. § 1001.2007(d).  My review in this case is limited by regulation to whether there is a basis for Petitioner’s exclusion, that is, whether she was convicted of an offense that triggers exclusion under section 1128(a)(3) of the Act. 

I have no authority to review whether the length of Petitioner’s exclusion is unreasonable in this case because five years is the minimum period of exclusion authorized for an exclusion under section 1128(a) of the Act.  42 C.F.R. § 1001.2007(a)(2).  Mitigating factors established by 42 C.F.R. § 1001.102(c), none of which are alleged by Petitioner, may only be considered if the IG cites aggravating factors to extend the period of exclusion beyond five years.  42 C.F.R. § 1001.102(c). 

Petitioner’s arguments may also be construed as a request for equitable relief, but I have no authority to grant such relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).  Congress required Petitioner’s exclusion pursuant to section 1128(a)(3) and that requirement is binding upon the Secretary and me.  I am bound to follow the Act and the Secretary’s regulations.  42 C.F.R. § 1005.4(c)(1). 

III.   Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years effective September 20, 2023. 

Endnotes

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.  Citations are to the 2022 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.

²  The pronouns she and her are used in this decision as Petitioner indicated no other preference.

³  Available at https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter274/Section1.

⁴  Available at https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter266/Section30.

⁵  Available at https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleII/Chapter278/Section18.

⁶  Available at https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter6E/Section1.