Fakayatu Ibironke Agboola, DAB CR6520 (2024)

DECISION

Petitioner, Fakayatu Ibironke Agboola, was licensed as a registered nurse in the State of Missouri until the State Board of Nursing (Nursing Board), in response to her application to renew her nursing license, issued an order denying licensure based on its determination that she had obtained her nursing degree/diploma through fraudulent means by purchasing a fraudulent degree/diploma.  Pursuant to section 1128(b)(4) of the Social Security Act (Act), the Inspector General (IG) excluded her from participation in Medicare, Medicaid, and all federal health care programs until she regains her Missouri nursing license.  Petitioner now appeals the exclusion.

For the reasons set forth below, I find that the IG had a legitimate basis to exclude Petitioner pursuant to section 1128(b)(4) of the Act because she lost her right to renew her Missouri registered nurse license for reasons bearing on her professional competence.

I. Background

Petitioner was licensed to practice as a registered nurse in the State of Missouri from March 16, 2021, through the expiration of her license on April 30, 2023.  IG Ex. 2 at 2.

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On or about March 16, 2023, Petitioner submitted an application to renew her registered nurse license.  IG Ex. 2 at 2.  Thereafter, the Nursing Board initiated an investigation.  IG Ex. 2 at 2.  In connection with that investigation, Petitioner reported that she “attended classes for six (6) to (9) months and used her [licensed practical nurse] experience as her [registered nurse] education program.”  IG Ex. 2 at 2.  In a June 2, 2023 order denying licensure, the Nursing Board explained that Petitioner had been “named by [the IG] and its law enforcement partners as part of a national scheme involving the sale and use of fraudulent nursing degree diplomas/transcripts,” and that she “appears on the list as having received a fraudulent degree/diploma and transcript.”¹  IG Ex. 2 at 2-3.  The Nursing Board determined that Petitioner had obtained her degree/diploma “through fraudulent means by purchasing a fraudulent degree/diploma.”  IG Ex. 2 at 2.

The Nursing Board concluded, as a matter of law, that “[c]ause exists for the Board to deny [Petitioner’s] request for a license to practice as a registered professional nurse pursuant to the provisions of §§ []335.046.2, 335.066.1, and .2(3), (6), (7), (12), and (26)” of the Missouri Revised Statutes.  IG Ex. 2 at 3.  One statutory provision cited by the Nursing Board in its conclusions of law included the requirement that a registered nurse license applicant “be of good moral character” and have earned a nursing degree, certificate, or diploma and completed a state-approved course.  IG Ex. 2 at 3, citing Mo. Rev. Stat. § 335.046.2.  The Nursing Board also explained in its conclusions of law that it may cause a complaint to be filed in circumstances including, but not limited to, when a person has failed to renew a license based on the “[u]se of fraud, deception, misrepresentation . . . in securing any . . . license,” a license has been granted “based upon a material mistake of fact,” or when the licensee has failed to answer, disclose, or “fully provide all information requested on any application or renewal for a license.”  IG Ex. 2 at 4, citing Mo. Rev. Stat. § 355.066.2(3), (12), and (26).  The order stated that its decision to deny Petitioner’s license renewal would be reported to data banks and other appropriate entities.  IG Ex. 2 at 5.

On December 29, 2023, the IG notified Petitioner that she would be excluded from participation in Medicare, Medicaid, and all federal health care programs based on section 1128(b)(4) of the Act.  IG Ex. 1 at 1.  The IG’s notice informed Petitioner that she would be eligible for reinstatement upon regaining her license as a registered nurse in Missouri.  IG Ex. 1 at 1.  The IG also informed Petitioner that she could be eligible for early reinstatement if she obtained a health care license in any state or had been excluded for a minimum period of three years.  IG Ex. 1 at 1; see 42 C.F.R. § 1001.501(c).

Petitioner, through counsel, submitted a request for hearing on February 27, 2024.  Shortly thereafter, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order).  I convened a pre-hearing conference on April 15, 2024, and I

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issued an order that same day in which I memorialized certain matters discussed during the pre-hearing conference and established a briefing schedule.  The IG submitted her brief (IG Br.) and two exhibits (IG Exs. 1-2), and Petitioner filed a brief (P. Br.) and two exhibits (P. Exs. 3-4).  The IG also filed a Reply Brief.  In the absence of any objections, I admit IG Exs. 1-2 and P. Exs. 3-4 into the evidentiary record.

Neither party submitted the written direct testimony of any witnesses.  See Pre-Hearing Order §§ 12, 14; see, e.g., Lena Lasher, DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, “no purpose would be served by holding an in-person hearing”), aff’d, Lasher v. Dep’t of Health & Human Servs., 369 F. Supp. 3d 243 (2019).  Consequently, it is unnecessary to convene a hearing for the purpose of cross-examination of any witnesses.  See Pre-Hearing Order §§ 15, 16.  The record is closed, and the case is ready for a decision on the merits.

II. Issue

Whether the IG has a basis for exclusion and, if so, whether the length of the exclusion is reasonable.  42 C.F.R. § 1001.2007(a)(1).

III. Jurisdiction

I have jurisdiction to adjudicate this case.  Act § 1128(f)(1) (42 U.S.C. § 1320a-7(f)(1)); 42 C.F.R. § 1005.2.

IV. Findings of Fact, Conclusions of Law, and Analysis²

The IG had a legitimate basis to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs because she lost her right to renew her Missouri registered nurse license for reasons bearing on her professional competence, and the length of the exclusion is reasonable as a matter of law.³ 

The Act authorizes the Secretary of Health and Human Services to exclude from program participation an individual 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 . . . professional competence, professional performance, or financial integrity.”  Act § 1128(b)(4)(A) (42 U.S.C. § 1320a-7(b)(4)(A)); see also 42 C.F.R. § 1001.501(a)(1).

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An exclusion based on section 1128(b)(4) of the Act is discretionary.  If the IG exercises her discretion to proceed with the sanction, then the mandatory minimum period of exclusion to be imposed under section 1128(b)(4) of the Act “shall not be less than the period during which the individual’s or entity’s license to provide health care is revoked, suspended, or surrendered . . . .”  Act § 1128(c)(3)(E) (42 U.S.C. § 1320a-7(c)(3)(E)).  Regulatory language at 42 C.F.R. § 1001.501(b)(1), stating that the IG may exclude an individual who has lost “the right to apply for or renew such a license,” implements the statutory provision.  Although an exclusion based on section 1128(b)(4) of the Act is discretionary, the IG’s decision to exercise her discretion and proceed with a sanction is not subject to review.  Donna Rogers, DAB No. 2381 at 6 (2011) (stating that 42 C.F.R. § 1005.4(c)(5) provides that an ALJ “does not have the authority to . . . review the exercise of discretion by the [IG] to exclude an individual . . . under section 1128(b) of the Act”).

The Nursing Board determined that Petitioner obtained her nursing degree “through fraudulent means by purchasing a fraudulent degree/diploma,” and that she had been “named by [the IG] and its law enforcement partners as part of a national scheme involving the sale and use of fraudulent nursing degree diplomas/transcripts.”  IG Ex. 2 at 2.  Section 335.046.2 of the Missouri Revised Statutes requires that an applicant for a nursing license not only have “good moral character,” but also “have successfully completed a basic prescribed curriculum in a state-accredited or approved school of nursing, earned a nursing degree, certificate or diploma and completed a course approved by the board on the role of the practical nurse.”  See also IG Ex. 2 at 3.  As cited by the Nursing Board, a licensee “has the burden of proving that she is eligible for licensure.”  IG Ex. 2 at 4, citing Mo. Rev. Stat. § 621.120.

Because the Nursing Board denied Petitioner a nursing license when she attempted to renew her license, the first element of section 1128(b)(4), as relevant here, that Petitioner lost the right to renew her nursing license, is satisfied.  Although Petitioner argues the Nursing Board’s action did not amount to a loss of her right to renew her license, she is mistaken.  Not only did the Nursing Board explain the education requirements necessary to be licensed as a registered nurse, but it also explained that Petitioner lacked this education requirement because she had “fraudulently” obtained her degree/diploma.  IG Ex. 2 at 1-2; see Mo. Rev. Stat. § 335.046.2.  Petitioner met neither the education requirement nor the good moral character requirement addressed by the Nursing Board in its conclusions of law and thus lost her right to renew the nursing license that she had received by means of a fraudulent diploma/degree.  IG Ex. 2 at 1-2 ; see Mo. Rev. Stat. § 335.056 (addressing that “[t]he license of every person licensed under the provisions of this chapter shall be renewed as provided”).

The second element of section 1128(b)(4) requires that Petitioner lost her right to renew her license “for reasons bearing on [her] . . . professional competence [or] professional performance . . . .”  The Nursing Board’s determination that Petitioner had a “fraudulent

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nursing degree” and “obtained the degree/diploma through fraudulent means by purchasing a fraudulent degree/diploma” directly bears on professional competence, i.e., the threshold amount and type of education the State of Missouri has determined is required of a licensed registered nurse.

The question I must resolve is whether the IG was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act, and I may not review the IG’s exercise of discretion in such a determination as long as the IG was authorized to impose the exclusion.  42 C.F.R. § 1005.4(c)(5); Monica Ferguson, DAB No. 3013 at 12 (2020) (“[A]n ALJ [administrative law judge] has no authority to review the I.G.’s exercise of discretion to exclude an individual under section 1128(b) of the Act, the permissive exclusion authority, or determine the scope or effect of the exclusion.”).  Because the Nursing Board determined that Petitioner had obtained her nursing degree/diploma through fraudulent means (e.g., she did not have a legitimate nursing degree/diploma), she had no right to renew her license.  The Nursing Board’s determination that Petitioner obtained her nursing degree/diploma through fraudulent means bears on her professional competence, and the IG was authorized to impose an exclusion pursuant to section 1128(b)(4) of the Act.  See Tracey Gates, R.N., DAB No. 1768 (2001).

Finally, Petitioner argues that there has not been a final decision in the matter involving her nursing license.  P. Br. at 5.  However, Petitioner has not submitted evidence that she submitted a request for hearing to the Administrative Hearing Commission, which the Nursing Board’s order explained is an independent tribunal that is not part of the Nursing Board.  IG Ex. 2 at 1.  Rather, Petitioner submitted evidence that she had been contacted in May 2024 by an investigator from the Nursing Board.  P. Br. 2-3; see P. Ex. 4.  Absent evidence that the Nursing Board’s June 2023 order denying her license does not remain in effect, the IG was authorized to exclude Petitioner pursuant to section 1128(b)(4) of the Act until such time that she regains her Missouri registered nurse license.  See Act § 1128(c)(3)(E) (42 U.S.C. § 1320a-7(c)(3)(E)); see also 42 C.F.R. § 1001.501(b)(1); Richard R. Jimenez, DAB No. 2986 at 6 (2020) (“Where, as here, the I.G. excludes an individual based on revocation of the individual’s health care license for reasons bearing on his or her professional competence or performance, the individual must be excluded for a period not less than the period of revocation of that license.”).  The duration of the exclusion is a matter of law and is therefore reasonable.

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V. Conclusion

For the above reasons, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid, and all federal health care programs until she regains her Missouri registered nurse license.

Endnotes

¹  Petitioner obtained her nursing degree from Siena Education Center, LLC, d/b/a/ Siena College of Health.  P. Br. at 1.

²  My findings of fact and conclusions of law are set forth in italics and bold font.

³  I make this one finding of fact/conclusion of law.