Sarah Sanders, DAB CR5471 (2019)

DECISION

I sustain the determination of the Inspector General (IG) to exclude Petitioner, Sarah Sanders, from participating in Medicare, Medicaid, and other federally funded health care programs for a period of five years.  Section 1128(a)(3) of the Social Security Act (Act) mandates Petitioner’s exclusion. 

I. Background

The IG filed a brief and eight supporting exhibits, identified as IG Ex. 1-IG Ex. 8.  Petitioner filed a short-form brief with a letter and two supporting exhibits, identified as P. Ex. 1-P. Ex. 2.1  Neither Petitioner nor the IG offered the testimony of a witness.2  I receive the parties’ exhibits into the record and decide this case based on their written exchanges.

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II. Issue, Findings of Fact, and Conclusions of Law

A. Issue

The issue is whether Petitioner was convicted of a felony mandating her exclusion pursuant to section 1128(a)(3) of the Act.

B. Findings of Fact and Conclusions of Law

Section 1128(a)(3) mandates the exclusion of any individual who is convicted of a felony, occurring after August 21, 1996, relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct, in connection with the delivery of a health care item or service or with respect to any act or omission in a government-funded health care program other than Medicare or a State Medicaid program. 

Neither the IG nor I have any discretion in such cases.  The IG must exclude, and I must affirm the exclusion, of any individual convicted of a felony described by that section of the Act.  The minimum exclusion period – defined at section 1128(c)(3)(B) of the Act – is five years.

The facts unequivocally establish that Petitioner was convicted of a section 1128(a)(3) felony.  Consequently, the IG has no choice but to exclude her.  In this case, the IG opted to impose the minimum exclusion period of five years.  There is thus no issue as to the reasonableness of the length of the exclusion.

On September 12, 2017, a one-count indictment issued under Illinois State law charging Petitioner with the felony (a Class 4 Felony under Illinois State law) of unlawful delivery of a controlled substance on the real property of a rehabilitation and nursing center.  IG Ex. 3.  Petitioner subsequently pled guilty to unlawful possession of a controlled substance (also a Class 4 Felony under Illinois State law) and a state court placed her on probation.  IG Ex. 6.

The facts underlying the indictment establish that Petitioner’s crime constituted a section 1128(a)(3) felony.  An investigation determined that Petitioner, acting in her capacity as a nurse, diverted several doses of Hydrocodone, a controlled substance, from her employer, a nursing facility, for the personal use of her then-boyfriend.  IG Exs. 2, 8.  This diversion is an act of “theft” within the meaning of section 1128(a)(3).  Petitioner committed this theft in connection with the delivery of a health care item or service because the controlled substances that she stole from her employer were medications that were part of a supply of drugs intended for patient use.  She would not have had access to these medications but for the fact that she was a nurse working in a health care facility, who had access to controlled substances intended for patients.

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In her request for a hearing, Petitioner argues that she was not convicted of a felony because she was put on probation with the possibility that her conviction might be expunged upon completion of her sentence.  That may be so, but her guilty plea nevertheless is a conviction as defined by the Act.  The Act defines as convictions guilty pleas (whether or not they are subsequently expunged) and related arrangements such as first-time offender programs, deferred adjudication programs, and other similar arrangements.  Act § 1128(i)(1)-(4).

Petitioner asserts also that the medications that she stole from her employer were expired.  From this I infer that Petitioner argues that her theft of these medications was not in connection with the delivery of a health care item or service because the medications would not, in any event, have been administered to patients.  I find that Petitioner’s theft of these medications – even if they were expired – was in connection with the delivery of a health care item or service.  Petitioner would not have had access even to expired medications but for her employment as a nurse in a nursing facility with medications that were at some point intended for patient use.  In this case, Petitioner’s status plus the fact that even expired medications originated from a health care delivery system establish the requisite relationship between the theft and the delivery of health care items or services.

Petitioner also raises several equitable arguments.  She avers that she has a previously unblemished record, that she is remorseful for her actions, and that she needs to work as a nurse in order to support her family.  I am not unsympathetic, but I have no choice in this matter.  As I have explained, I have no choice but to sustain the IG’s exclusion determination.