Musu Kandeh, DAB CR5992 (2021)

DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Petitioner, Musu Kandeh, from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(3) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(3)).  Petitioner’s exclusion for the minimum period of 10 years is required by section 1128(c)(3)(G)(i) of the Act (42 U.S.C. § 1320a‑7(c)(3)(G)(i)).  For the reasons stated below, I conclude that the IG had a basis for excluding Petitioner from program participation, and the 10-year exclusion period is mandatory.  I affirm the IG’s exclusion determination.

I.   Procedural History

The IG issued a notice to Petitioner on April 30, 2021, informing her that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for 10 years.  IG Ex. 1 at 1.  The IG cited section 1128(a)(3) of the Act as the basis,

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which mandates exclusion, in relevant part, when an individual is convicted 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.  Id.  The Petitioner timely requested a hearing, and I was designated to hear and decide this case.

I conducted a pre-hearing telephone conference on July 7, 2021, the substance of which I memorialized in my July 8, 2021 Order (Summary Order), including a schedule for submission of arguments and evidence by the parties.  The IG submitted a brief (IG Br.), and five exhibits (IG Exs. 1-5), while Petitioner submitted a brief (P. Br.) without exhibits.  The IG also submitted a reply brief (IG Reply).

II.   Exhibits and Decision on the Record

Petitioner does not object to the IG’s proposed exhibits.  I therefore admit IG Exhibits 1 through 5 into evidence.

Neither party indicated a hearing was necessary in this matter.  P. Br. at 6; IG Br. at 11.  I therefore proceed to a decision based on the record before me.  See Civ. Remedies Div. P. § 19(d).

III.   Applicable Law

The Secretary of Health and Human Services (Secretary) shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual:

[H]as been convicted for an offense which occurred after [August 21, 1996], under 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 . . . 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 U.S.C. § 1320a-7(a)(3).  The Secretary has promulgated regulations implementing this provision of the Act.  42 C.F.R. § 1001.101(c).

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of no fewer than five years.  42 C.F.R. § 1001.102(a).  Section 1128(c)(3)(G)(i) of the Act further provides that for a mandatory

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exclusion under Section 1128(a) of the Act, the mandatory exclusion will be for no fewer than 10 years if the individual has been convicted on one prior occasion of one or more offenses for which exclusion is required under Section 1128(a) of the Act.

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(c).

IV.   Issues

The Secretary has by regulation limited my scope of review to two issues:  Whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs and, if so, whether the length of the exclusion imposed by the IG is unreasonable.  See 42 C.F.R. § 1001.2007(a)(1).

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.

A. I have jurisdiction to hear this case.

Petitioner timely requested a hearing.  I therefore have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a‑7(f)(1).

B. Petitioner was convicted of a felony 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, requiring exclusion under 42 U.S.C. § 1320a-7(a)(3).

The IG must exclude an individual from participation in federal health care programs if the individual was convicted, under Federal or State law, of a criminal offense that occurred after August 21, 1996, consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct that was committed in connection with the delivery of a health care item or service.  42 U.S.C. § 1320a-7(a)(3); 42 C.F.R. § 1001.101(c).  The IG has established these elements by a preponderance of the evidence.

Here, Petitioner concedes that on October 30, 2018, she was convicted of “Felony Theft – Scheme,” but disputes that the conviction is one requiring exclusion.  P. Br. at 1-2. 

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Specifically, Petitioner argues that the offense (1) “was not related to theft in the manner the Act intended to exclude[,]” and (2) “was not committed in connection with the delivery of a health care item or service.”  Id. at 2-5.

On October 30, 2018, Petitioner pleaded guilty to Felony Theft – Scheme, and the Circuit Court for Anne Arundel County, Maryland (Anne Arundel County Court), found Petitioner guilty of that offense.  IG Ex. 3 at 1.  Petitioner admitted to a number of facts as part of her plea that are relevant to this proceeding; I recount these below.

On November 20, 2012, the Maryland Board of Nursing suspended Petitioner and issued an order suspending her Licensed Practical Nurse (LPN) license and Nursing Assistant (CNA) certificate due to a May 25, 2011 criminal conviction in Montgomery County, Maryland, of Exploitation of a Vulnerable Adult.  IG Ex. 4 at 1.  On February 6, 2013, Petitioner surrendered her LPN license and CNA certificate for a period of at least two years.  Id. 

In 2012, around the same time her license and certificate were suspended, Petitioner assumed the identity of her relative, D.T., a Registered Nurse (RN).  IG Ex. 4 at 1.  Assuming D.T.’s identity, Petitioner was hired as an RN to provide, in part, services to Medicaid recipients and supervision of LPNs.  Id.  From 2013 through 2016, while employed as an RN using D.T.’s identity, Petitioner received $201,026.80 in compensation.  Id. at 1-2.  

In 2016, a Medicaid Fraud Control Unit (MFCU) investigator met with Petitioner.  IG Ex. 4 at 1.  Petitioner identified herself as D.T. to the MFCU investigator and explained her background and role and duties at her employer.  Id. at 1-2.  Petitioner specifically explained how she provided services to Medicaid recipients by reviewing plans of care and doctor’s notes and by performing monthly visits of Medicaid recipients assigned to her.  Id. at 2.  During the meeting with the MFCU investigator, Petitioner was unable to produce her driver’s license, provided the wrong date of birth for D.T., and stated that she did not recognize D.T. when the MFCU investigator presented D.T.’s picture to Petitioner.  Id.  Shortly thereafter, Petitioner’s employment with the entity was terminated and Petitioner was charged with, pleaded guilty to, and was convicted of Felony Theft – Scheme.  Id.; IG Ex. 2 at 2; IG Ex. 3 at 1.  While employed as an RN under D.T.’s identity, Petitioner caused her employer to submit more than 2,000 claims to Medicaid, totaling more than 5 million dollars.  IG Ex. 4 at 2.

1. Petitioner was convicted of a felony relating to theft.

Contrary to Petitioner’s argument, the offense of “Felony Theft – Scheme” falls within the scope of the term “theft” as used in the Act.  For an offense to be “related to” theft, there must be a “common sense connection” or “nexus” between the underlying offense and fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial

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misconduct.  Ronald Grusd, M.D., DAB CR5800 at 8 (2021) (citing James Randall Benham, DAB No. 2042 at 5–6 (2006)); Kevin J. Bowers, DAB No. 2143 (2008), aff’d, Bowers v. Inspector Gen. of the Dep’t of Health & Human Servs., No. 1:08-CV-159, 2008 WL 5378338 (S.D. Ohio Dec. 19, 2008).  Such connection or nexus may be established through an analysis of the specific facts associated with the underlying offense.  Id.; Erik DeSimone, R.Ph., DAB No. 1932 (2004).  Petitioner admits that she was convicted of violating Md. Code Ann., Crim. Law § 7‑104, because she stole money in the form of compensation via her unlawful employment as an RN.  IG Ex. 2 at 2; IG Ex. 3 at 1.  However, Petitioner contends that because she actually performed work in the role as an RN, the facts of her conviction are not “related to” theft.  P. Br. at 2-3.  While Petitioner may have performed work in the course of the employment she obtained through posing as D.T., Petitioner would not otherwise have been qualified and hired as an RN supervisor but for the deception.  At a minimum, Petitioner’s LPN license and CNA certificate were suspended for the vast majority, if not the entirety, of the time she was deceptively posing as D.T. to work as an RN supervisor.  Further, Petitioner’s license was that of an LPN, not an RN.  IG Ex. 4 at 1; IG Ex. 5 at 5.  No amount of work that Petitioner performed could have rightly entitled her to the compensation she received while she fraudulently assumed the identity of another to gain employment for which she otherwise would not have qualified.  As such, the underlying facts of Petitioner’s conviction of “Felony Theft – Scheme” is indeed related to theft.1

2. Petitioner was convicted of a felony in connection with the delivery of a health care item or service.

The facts pertaining to Petitioner’s October 30, 2018, conviction clearly establish that Petitioner was convicted of a criminal offense in connection with the delivery of a health care item or service requiring exclusion under 42 U.S.C. § 1320a-7(a)(3).  To be “in connection with” the delivery of a health care item or service, there need only be a “‘common sense connection or nexus’ between the offense and the delivery of a health care item or service . . . .” .” Grusd, DAB CR5800 at 7 (citing Charice D. Curtis, DAB No. 2430 at 5 (2011)).  Such a connection is present when the offense occurs “in the context of an individual’s participation in the chain of delivery of health care items or services,” including offenses which could not have been accomplished but for an individual’s position in that chain of delivery.  Kenneth M. Behr, DAB No. 1997 at 9 (2005); Erik DeSimone, R.Ph., DAB No. 1932.

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Here, Petitioner provided health care services to Medicaid recipients and supervised others providing health care services under an assumed identity and credentials.  IG Ex. 4 at 1-2.  As an RN supervisor, Petitioner reviewed plans of care and doctor’s notes, and performed monthly visits of Medicaid recipients assigned to her.  Id. at 2.  Petitioner’s ongoing theft was only possible through her performing these professional health care services by deception under an assumed identity.  Using D.T.’s identity and credentials, Petitioner received $201,026.80 in compensation, and caused the submission of over 2,000 claims to Medicaid, totaling more than 5 million dollars.  IG Ex. 4 at 2.  These facts are sufficient to establish a “common sense connection” between Petitioner’s underlying offense and the delivery of a health care item or service.

3. Petitioner must be excluded for the statutory minimum period of 10 years.

Congress requires that an individual or entity excluded pursuant to section 1128(a) of the Act be excluded for no fewer than five years.  Act § 1128(c)(3)(B).  Congress also requires that an individual who is excluded pursuant to section 1128(a) of the Act be excluded for 10 years if the individual has been convicted:

[O]n one previous occasion of one or more offenses for which an exclusion may be effected under such subsection, the period of the exclusion shall be not less than 10 years[.]

Act § 1128(c)(3)(G)(i). 

Petitioner admits that on March 28, 2011, in the Circuit Court for Montgomery County, Maryland, she was convicted of a felony:  Exploitation of a Vulnerable Adult in violation of Md. Code Ann., Crim. Law § 8-801.  P. Br. at 5.  While employed as a nurse at a hospital, Petitioner stole the credit card of an admitted elderly patient and used it for personal purchases.  IG Ex. 5 at 1, 8-14, 16.  Though Petitioner was not initially excluded from participating in federal health care programs following her 2011 conviction, Petitioner does not dispute that her 2011 offense was one for which exclusion may be effected under section 1128(a)(3).  P. Br. at 5.  The IG has met its burden in proving by a preponderance of the evidence that Petitioner’s 2011 offense was related to fraud, theft, and financial misconduct and that it was committed in connection with the delivery of a health care item or service.  See Georgina A. Molina,DAB CR3632 (2015) (petitioner, who was convicted of fraud when she stole a terminally ill man’s credit card while employed as his caregiver and used it to make personal purchases, was excluded from participation in Medicare, Medicaid, and all federal health care programs). 

Petitioner requests that her 2011 and 2018 offenses not be combined for purposes of exclusion.  P. Br. at 5.  Petitioner asserts that her first conviction was over 10 years ago and that she “was young and made an error in judgment.”  Id.  Petitioner further asserts

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that she was incarcerated for her 2011 conviction, placed on probation, and believes she has paid her debt to the patient and society.  Id.  Petitioner states that she would never again knowingly cause harm to a patient, and she believes that “continuing to be punished for her prior offense is unreasonable[,]” especially since her prior conviction was unrelated to her more recent Felony Theft - Scheme conviction.  Id.  Even if I were inclined to grant Petitioner’s request, Congress has not afforded me discretion to impose a lesser period where Petitioner was also convicted on a previous occasion of an offense for which an exclusion may be effected under section 1128(a). 

Based on these undisputed facts, I conclude that Petitioner’s exclusion for 10 years is mandated by Congress pursuant to Act § 1128(c)(3)(G)(i).  Because the minimum period mandated by Congress is 10 years, I conclude that a 10-year period is not unreasonable as a matter of law.  42 U.S.C. § 1320a-7(c)(3)(G)(i); 42 C.F.R. § 1001.102(d)(1).

VI.   Conclusion

For the foregoing reasons, I affirm the IG’s determination to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for the minimum statutory period of 10 years.