Leslie Appiah-Kubi, DAB CR6475 (2024)

DECISION

Respondent, the Inspector General of the United States Department of Health and Human Services (the IG), excluded Petitioner, Leslie Appiah-Kubi, from participation in Medicare, Medicaid, and all other federal health care programs because he surrendered his license during the pendency of a formal disciplinary against him.  Petitioner sought review of the exclusion action.  For the reasons stated below, I conclude a factual basis permitting the IG to take this action exists. 

I. Procedural History

By letter dated October 31, 2023, the IG notified Petitioner of his exclusion from participation in Medicare, Medicaid, and all federal health care programs under section 1128(b)(4) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(b)(4), because his license to provide health care was revoked, suspended, or otherwise lost, or was surrendered while a formal disciplinary proceeding was pending for reasons bearing on his professional competence, professional performance, or financial integrity.  IG Ex. 1 at 1.  The IG advised Petitioner his exclusion would remain in effect until the IG reinstated him, which could only occur if he regained his health care license, obtained a new license in any state, or his period of exclusion exceeded three years.  Id. 

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Petitioner timely requested a hearing before an administrative law judge (ALJ) in the Civil Remedies Division, resulting in my designation to hear and decide this case.  I held a pre-hearing telephone conference with the parties on December 14, 2023, the substance of which is set forth in an order issued that same day (Summary Order).  See 42 C.F.R. § 1005.6.  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments as well as identifying witnesses and exhibits in support thereof.  Summary Order ¶ 7.  

The IG filed a brief (IG Br.) and three proposed exhibits (IG Exs. 1-3).  Petitioner filed a brief (P. Br.) and five proposed exhibits (P. Exs. 1-5).  The IG declined the opportunity to file a reply. 

II. Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  Accordingly, I admit their proposed exhibits into the record.  42 C.F.R. § 1005.8(c); Civ. Remedies Div. P. § 14(e). 

Neither party requested an in-person hearing.  IG Br. at 7; P. Br. at 6.  I therefore decide this case on the written record.  See Civ. Remedies Div. P. § 19(d). 

III. Issue

Whether the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs under 42 U.S.C. § 1320a-7(b)(4).¹ See 42 C.F.R. § 1001.2007(a)(1). 

IV. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an administrative hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth at 42 C.F.R. §§ 1001.2007(a) and 1005.2, while the rights of both the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3. 

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The Act permits the Secretary² to exclude individuals or entities whose license to provide health care has been revoked or suspended: 

(b) PERMISSIVE EXCLUSION.—The Secretary [of the Department of  Health and Human Services] may exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)): 

* * * *

(4) LICENSE REVOCATION OR SUSPENSION.—Any individual or entity—
(A) whose license to provide health care has been revoked or suspended by any State licensing authority, or who otherwise lost such a license or the right to apply for or renew such a license, for reasons bearing on the individual’s or entity’s professional competence, professional performance, or financial integrity, or 
(B) who surrendered such a license while a formal disciplinary proceeding was pending before such an authority and the proceeding concerned the individual’s or entity’s professional competence, professional performance, or financial integrity. 

Act § 1128(b)(4); see also 42 C.F.R. § 1001.501(a). 

The length of an exclusion imposed under section 1001.501 may not be for a period shorter than the period during which the individual’s or entity’s license is revoked, suspended, or otherwise not in effect as a result of, or in connection with, a state licensing agency action.  42 C.F.R. § 1001.501(b).  

The standard of proof I apply in this proceeding 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; the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c). 

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

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

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A. Petitioner timely requested a hearing, and I have jurisdiction.

Petitioner timely requested a hearing.  See 42 C.F.R. § 1005.2(c).  I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1). 

B. There is a basis for Petitioner’s exclusion pursuant to section 1128(b)(4) of the Act.

The IG is authorized to exclude an individual from participation in Medicare, Medicaid, and all federal health care programs where:  (1) the individual’s license to provide health care was revoked or suspended by any state licensing authority, or the license was otherwise lost, including the right to apply for or renew such a license, for reasons bearing on the individual’s professional competence, professional performance or financial integrity; or (2) the individual surrendered such a license while a formal disciplinary proceeding concerning the individual’s professional competence, professional performance or financial integrity was pending before a state licensing authority.  Act § 1128(b)(4); 42 C.F.R. § 1001.501(a). 

As discussed below, I find the IG established a basis to exclude Petitioner because he surrendered his nursing license during the pendency of a formal disciplinary proceeding concerning his professional competence, professional performance, or financial integrity. 

1. Relevant Facts

Florida’s Department of Health authorized Petitioner to practice as a Registered Nurse in March 2022.  IG Ex. 3.  In February 2023, the Department initiated an investigation after becoming aware the Federal Bureau of Investigation and the National Council of State Boards of Nursing suspected Petitioner of engaging in “duplicitous activities to obtain fraudulent nursing degree diplomas and transcripts” to obtain licensure as a Registered Nurse without the necessary training or clinical experience.  IG Ex. 2 at 8. 

As a result, the Department of Health filed a complaint³ against Petitioner, docketed before its Board of Nursing as Case No. 2023-08135.  Id. at 4-5.  On March 23, 2023, Petitioner agreed to voluntarily relinquish his nursing license to avoid further administrative action against him.  Id. at 4.  On August 17, 2023, the Board of Nursing issued a Final Order accepting Petitioner’s voluntary relinquishment to resolve the case.  Id. at 1. 

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2. Petitioner surrendered his health care license during the pendency of a formal disciplinary proceeding.

The Act permits the IG to exclude an individual who surrenders their license during the pendency of a formal disciplinary proceeding concerning that individual’s professional competence, professional performance, or financial integrity.  Act § 1128(b)(4); 42 C.F.R. § 1001.501(a)(2).  The record before me confirms Petitioner surrendered his license to provide health care during the pendency of a formal disciplinary proceeding. 

There is no dispute Petitioner surrendered his nursing license by submitting a “Voluntary Relinquishment” accepted by the Board of Nursing on August 17, 2023.  IG Ex. 2 at 1-2, 4-7.  There is equally no dispute he did so while an administrative proceeding was pending.  The Board of Health filed an investigative report (possibly a complaint) on February 22, 2023.  Id. at 8.  Petitioner submitted the Voluntary Relinquishment on March 23, 2023.  Id. at 4.  The Board of Nursing did not issue its final order closing the case until August 17, 2023.  Id. at 1-2. 

There is no dispute the proceeding pending when Petitioner surrendered his nursing license was disciplinary in nature.  The Florida Department of Health sought to take “administrative action” against Petitioner through its Board of Nursing, and Petitioner acknowledged this action against him as a disciplinary one pursuant to Fla. Stat. § 456.072(1)(f).⁴ Id. at 4.  

Finally, there is no dispute the disciplinary proceeding bore all the hallmarks of formality.  The Florida Department of Health filed a complaint against Petitioner.  That complaint was docketed before its Board of Nursing and assigned a case number.  Id. at 4-5.  Petitioner waived a determination of probable cause, his right to seek judicial review or otherwise appeal, and executed notarized stipulations to relinquish his nursing license.  Id. at 5.  This resulted in an issuance of a “Final Order” by the Florida Board of Nursing acknowledging Petitioner relinquished his nursing license.  Id. at 1-2.

The evidence of record establishes Petitioner surrendered his nursing license to Florida’s Board of Nursing during the pendency of a formal disciplinary proceeding. 

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3. The disciplinary proceeding pending before the Florida’s Board of Nursing concerned Petitioner’s professional competence, professional performance, or financial integrity.

The IG must also establish the formal disciplinary proceeding pending when Petitioner surrendered his nursing license concerned his professional competence, professional performance, or financial integrity.  Act § 1128(b)(4); 42 C.F.R. § 1001.501(a)(2).  The IG has met this burden.  Here, Florida’s Department of Health investigated Petitioner for allegedly obtaining licensure as a Registered Nurse through fraudulent means.  IG Ex. 2 at 8.  The Department’s report provided probable cause for the Board of Nursing’s disciplinary proceeding and asserts statutory violations as bases for disciplinary action that included obtaining a license by bribery or fraudulent representation; making deceptive, untrue, or fraudulent representations related to practice; and making fraudulent representations on a licensure application.  Id., citing Fla. Stat. §§ 456.072(1)(h), (k), (m), (w), (dd), 464.018(1)(a)(o). 

Petitioner contends he did not surrender his license for any of these reasons.  He asserts he was led to do so relying on false representations made to him by Department of Health investigator Donna Hawkins, who he contends stated he had no choice but to surrender his license because of the broader FBI investigation into his nursing school.  P. Br. at 3. 

Unfortunately, Petitioner’s assertions, even if true, would not affect the outcome here.  It is not necessary to establish why Petitioner chose to surrender his license.  The only relevant inquiry is whether the disciplinary proceeding pending when he did so concerned his professional competence, performance, or financial integrity.  42 C.F.R. § 1001.501(a)(2).  There is no dispute that it did.  The Department of Health relied on an investigative report to initiate a disciplinary proceeding against Petitioner before the Board of Nursing.  IG Ex. 2 at 8.  That report alleged statutory violations by Petitioner that all pertained to the use of fraudulent or deceptive means to obtain a professional license or to practice under that license.  See id., citing Fla. Stat. §§ 456.072(1)(h), (k), (m), (w), (dd), 464.018(1)(a)(o).  Professional licensure requirements exist to ensure professional competence and performance.  A disciplinary proceeding based on the possibility that a licensed health care professional may have obtained that license by fraud or deceit therefore clearly concerns that individual’s professional competence or performance. 

In sum, Florida’s Department of Health initiated an investigation against Petitioner and filed a complaint against him before its Board of Nursing.  The formal disciplinary proceeding initiated by that complaint concerned the allegation Petitioner fraudulently obtained his nursing license and therefore concerned his professional competence or performance.  Petitioner opted to resolve that pending formal disciplinary proceeding against him by surrendering his license.  While I am sympathetic to Petitioner’s claim that he did not intend to admit to the allegations against him when he did so, the IG’s

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exclusion action against him is not based on the veracity of those claims.  Exclusion under section 1128(b)(4) of the Act and 42 C.F.R. § 1001.501(a)(2) requires only that the IG establish Petitioner surrendered his nursing license while a formal disciplinary proceeding against him concerning his professional competence or performance was pending.  The IG has done so. 

C. I do not have the authority to reinstate Petitioner.

In documents submitted after his request for hearing but before the pre-hearing conference I convened in this case, Petitioner asserted he did not intend to contest his exclusion based on the surrender of his Florida nursing license but instead sought removal of his name from the exclusion list by the IG because he has obtained a different nursing license in New York.  DAB E-file Dkt. No. C-24-60, Doc. No. 5 at 2. 

The IG acknowledges early reinstatement is possible where an excluded individual like Petitioner obtains a health care license from a different licensing authority or where that licensing authority takes no adverse action against a license already held by the individual.  IG Br. at 8-9, citing 42 C.F.R. § 1001.501(c)(1).  The IG considers various regulatory factors to decide whether to grant early reinstatement.  42 C.F.R. § 1001.501(c)(1)(i)-(xi). 

The IG also asserts she will apply a presumption against early reinstatement where the exclusion has been in effect for less than three years.  Id. at 9 (citing 42 C.F.R. § 1001.501(c)).  Here, IG counsel misstates the regulations.  42 C.F.R. § 1001.501(c) contains two subsections; subsection (c)(1) pertains to early reinstatement where an excluded individual obtains a health care license from a different licensing authority.  Subsection (c)(2) applies to excluded individuals who have not obtained a valid health care license of any kind who nevertheless seek early reinstatement.  Only in the latter situation will the IG apply a presumption against reinstatement of individuals excluded less than three years.  42 C.F.R. § 1001.501(c)(2)(i).  Individuals like Petitioner who successfully obtain a health care license from a different licensing authority are not subject to any such presumption against early reinstatement.  42 C.F.R. § 1001.501(c)(1). 

The remainder of the IG’s response is accurate.  The IG retains exclusive discretion over the decision whether to reinstate and the IG’s denial of a reinstatement request is not subject to administrative or judicial review.  IG Br. at 9, citing 42 C.F.R. §§ 1001.3001, 1001.3002, 1001.3004(c).  I do not have the authority to require the IG to reinstate Petitioner.  42 C.F.R. § 1001.3002(f). 

Should he wish to pursue early reinstatement, Petitioner may do so by following the instructions set forth at https://oig.hhs.gov/exclusions/reinstatement.asp.  Given the vagueness of the investigative report provided by the IG in this case, the absence of a complaint containing any allegations against Petitioner, and the lack of stipulated conduct

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underlying the Board of Nursing’s order accepting Petitioner’s voluntary relinquishment, there is little actual evidence of fraudulent conduct by Petitioner.  As such, Petitioner may wish to provide the IG more specific evidence that he legitimately obtained his nursing degree.  For example, he may wish to seek out and submit attendance records.  He may wish to submit sworn declarations or affidavits from individuals who can attest to his weekly presence at classes, including faculty and administrative staff of the nursing school, fellow students, or the employer who permitted him to take every Monday off to attend lectures.  Petitioner should also carefully review the factors the IG will consider in assessing his request for early reinstatement and address them should he choose to seek reinstatement.  See 42 C.F.R. § 1001.3002(b). 

VI. Conclusion

For the foregoing reasons, I affirm the IG’s determination to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(b)(4) of the Act (42 U.S.C. § 1320a-7(b)(4)). 

Endnotes

¹  Because the period of exclusion is premised on a contingent condition – license revocation or suspension – the IG cannot select a period shorter than while the contingent condition persists.  See 42 C.F.R. § 1001.501(b)(1) (an individual excluded on the basis of license revocation or suspension shall not be excluded for a period less than the period during which the individual’s license to provide health care is revoked, suspended, or otherwise not in effect).  The IG did not apply aggravating factors to increase Petitioner’s period of exclusion beyond this minimum period.  42 C.F.R. § 1001.501(b)(2).  The length of exclusion is therefore per se reasonable and not at issue. 

²  The Secretary has delegated this exclusion authority to the IG.  48 Fed. Reg. 21,662 (May 13, 1983). 

³  It is unclear whether a separate complaint was filed or whether the investigative report served the purpose of a complaint.  See IG Ex. 2 at 8 (“Investigative Report” indicating the “Date of Complaint” to be February 22, 2023).  However, the stipulations Petitioner submitted to the Board of Nursing twice refer to a complaint, so I need not resolve this question.  Id. at 5.  

⁴  This section provides in full:  “Having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law.  The licensing authority’s acceptance of a relinquishment of licensure, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of charges against the license, shall be construed as action against the license.”  Fla. Stat. § 456.072(1)(f).