Clarissa Reyes, DAB CR6531 (2024)

DECISION

Respondent, the Inspector General of the United States Department of Health and Human Services (the IG), excluded Petitioner, Clarissa Reyes, from participation in Medicare, Medicaid, and all other federal health care programs, claiming she surrendered her nursing license during the pendency of a formal disciplinary proceeding for reasons bearing on her professional competence, professional performance, or financial integrity.  Petitioner sought review of this action.  For the reasons stated below, I conclude the IG has established a basis to exclude Petitioner. 

I.        Procedural History

By letter dated December 29, 2023, the IG notified Petitioner of her 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Social Security Act (Act), 42 U.S.C. § 1320a-7(b)(4), because her license to provide healthcare as a registered nurse was revoked, suspended, or otherwise lost or was surrendered while a formal disciplinary proceeding was pending for reasons bearing on her professional competence, professional performance, or financial integrity.  IG Ex. 1 at 1.  The IG advised Petitioner her exclusion would remain in effect until her

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reinstatement, which could occur if she regained her nursing license, obtained a new license in any state, or her period of exclusion exceeded three years.  Id. 

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 conference by telephone with the parties on March 7, 2024, the substance of which is set forth in my Order Summarizing Pre-Hearing Conference and Setting Briefing Schedule (Summary Order), issued the same day.  See 42 C.F.R. § 1005.6.  Among other things, I directed the parties to file pre-hearing briefs articulating their respective arguments and identify witnesses and exhibits in support thereof.  Summary Order ¶ 7.  

The IG filed a brief (IG Br.) and six proposed exhibits (IG Exhibits 1 through 6).  Petitioner filed a short-form brief (P. Br.) and one proposed exhibit (P. Exhibit 1).  The IG subsequently filed a reply brief (IG Reply) and one supplemental exhibit (IG Exhibit 7). 

II.       Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  However, I reject IG Exhibit 7 because the IG did not seek leave to amend her pre-hearing exchange.  See Summary Order at ¶ 8(a) (requiring the IG to submit her proposed exhibits by April 27, 2024).  Moreover, while styled as an exhibit, IG Exhibit 7 does not pertain to the IG’s presentation of its case-in-chief.  It instead confirms IG counsel’s assertion that she provided guidance to Petitioner concerning the process of seeking reinstatement by the IG.  IG Reply at 4.  I therefore also exclude IG Exhibit 7 as irrelevant.  42 C.F.R. § 1005.17(c).  Accordingly, I admit all proposed exhibits except IG Exhibit 7 into the record.  42 C.F.R. § 1005.8(c); Civ. Remedies Div. P. § 14(e). 

The IG did not assert a position as to the necessity of a hearing.1  Petitioner indicated she believed an in-person hearing to be necessary and identified herself as a witness.  P. Br. at 4-5.  However, Petitioner did not submit her written direct testimony as an exhibit.  My Summary Order required the parties to proffer testimony from any proposed witness in writing as an affidavit or declaration and marked as an exhibit in its pre-hearing exchange.  Summary Order at ¶ 7(c)(ii).  I also advised the parties I would only hold an in-person hearing if a party requested to cross-examine a witness for whom the opposing party provided written direct testimony.  Summary Order ¶ 9; Civ. Remedies Div. P. § 19(d).

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I am not inclined to deny an unrepresented party’s request to testify on purely procedural grounds.  But considering Petitioner’s request, I note her description of the purpose of her testimony – to demonstrate she credibly and sincerely believes herself to be a victim of fraud and only surrendered her license on that basis – will not affect the outcome here even if I fully credit it, as I explain herein.  For these reasons, I proceed to a decision based on the record before me.  Civ. Remedies Div. P. § 19(d). 

III.     Issue

Whether 42 U.S.C. § 1320a-7(b)(4) authorized the IG to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs.2  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. 

The Act authorizes the Secretary to exclude3 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

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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 exclusion imposed under this section 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. 

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

Petitioner timely requested a hearing.  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). 

2. 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 pursuant to section 1128(b)(4) of the Act and 42 C.F.R. § 1001.501(a) 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)(1), (2).

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As discussed below, I find the IG has demonstrated a basis to exclude Petitioner because she surrendered her health care license to a state licensing authority while a formal disciplinary proceeding concerning Petitioner’s professional competence, professional performance, or financial integrity was pending before that authority. 

1. Relevant Facts

On August 8, 2022, Petitioner applied for a license to practice as a Registered Nurse (RN) in Connecticut by endorsement based on the RN license she acquired by examination in Florida on September 18, 2020.  IG Ex. 2 at 1; IG Ex. 3.  Petitioner received her Connecticut RN license on October 6, 2022.  IG Ex. 2 at 1. 

On January 25, 2023, the Federal Bureau of Investigation (FBI) and the IG jointly alerted the National Council of the State Boards of Nursing that Siena College of Health, a nursing school in Florida, had issued diplomas and transcripts to individuals lacking the requisite instruction or clinical training.  IG Ex. 4 at 1.  The FBI and the IG included an affidavit from Eunide Sanon, the owner of Siena College, identifying individuals who had not completed training at Siena and possibly received illegitimate diplomas and transcripts.  Id.  They encouraged state nursing boards to conduct their own investigations against the individuals identified in Sanon’s affidavit.  Id. 

Shortly thereafter, Special Investigator Brendan Hosey of the Healthcare Quality and Safety Branch of the Practitioner Licensing and Investigations Section of Connecticut’s Department of Public Health (PLIS) issued an investigative report noting the IG contacted the Department in February 2023 and provided information suggesting Petitioner had obtained her RN license without completing a prelicensure nursing program.  IG Ex. 2 at 1.  The IG provided the earlier circulated affidavit of Eunide Sanon in which Sanon identified Petitioner among the individuals who had not completed training at Siena College and possibly received an illegitimate diploma or transcript.  IG Ex. 2 at 1; IG Ex. 4 at 1-3, 40. 

Special Investigator Hosey reported the Connecticut Department of Public Health notified Petitioner of the allegation and offered her the opportunity to voluntarily surrender her RN license.  IG Ex. 2 at 2.  On March 27, 2023, Petitioner executed a sworn, notarized statement in which she agreed to voluntarily surrender her license and, for the purpose of resolving the action against her license, admitted as true the allegations against her.  IG Ex. 5 at 1-2.  PLIS received Petitioner’s response on March 30, 2023, IG Ex. 2 at 2, and accepted Petitioner’s voluntary surrender of her Connecticut RN license on April 6, 2023.  IG Ex. 5 at 2.  

On March 9, 2023, Florida’s Department of Health issued an investigative report concerning the allegations against Petitioner made by the FBI and the IG to the National Council of State Boards of Nursing.  IG Ex. 6 at 7.  On March 27, 2023, Petitioner

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executed another sworn, notarized affidavit by which she voluntarily surrendered her Florida RN license to avoid further administrative action against her.  Id. at 3-6. 

2.  Petitioner surrendered her 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)(B); 42 C.F.R. § 1001.501(a)(2).  The record before me confirms Petitioner surrendered her license to provide health care during the pendency of a formal disciplinary proceeding against her.  

Petitioner surrendered her nursing license by submitting an affidavit entitled “Voluntary Surrender of License Affidavit” to PLIS.  IG Ex. 5.  She did so during the pendency of an administrative proceeding.  PLIS initiated its investigation of Petitioner based on information it received from the IG on February 13 and 17, 2023.  IG Ex. 2 at 1-2.  Petitioner executed the affidavit by which she surrendered her RN license on March 27, 2023, and the administrative matter pending against her was not resolved until PLIS accepted her Voluntary Surrender on April 6, 2023.4  IG Ex. 5 at 1-2. 

The proceeding pending when Petitioner surrendered her nursing license was formal and disciplinary in nature.  PLIS initiated an investigation after receiving information suggesting Petitioner obtained her RN license without completing a prelicensure nursing program.  IG Ex. 2 at 1.  It assigned that investigation a case number, Petition #2023-243.  Id.  To accept Petitioner’s surrender of her license, PLIS required her to deem the allegations against her under Petition #2023-243 true and waive her hearing and appeal rights related to subsequent requests to reinstate her license.  IG Ex. 5 at 1; IG Ex. 2 at 1.  Finally, Petitioner acknowledged she executed the Voluntary Surrender affidavit “in settlement of the allegations” against her with the purpose of “resolv[ing] the pending matter against [her] license. . . .”  IG Ex. 5 at 1-2.  The evidence of the record establishes Petitioner surrendered her RN license during the pendency of a formal disciplinary proceeding.  IG Ex. 2; IG Ex. 5. 

3.  The pending disciplinary proceeding concerned Petitioner’s professional competence, professional performance, or financial integrity.  

The IG must also establish the formal disciplinary proceeding pending against Petitioner when she surrendered her nursing license concerned her professional competence,

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professional performance, or financial integrity.  Act § 1128(b)(4)(B); 42 C.F.R. § 1001.501(a)(2).  The IG has met this burden.  Here, PLIS initiated its investigation of Petitioner for allegedly obtaining licensure as a Registered Nurse without completing the necessary prelicensure nursing program.  IG Ex. 2 at 1. 

Petitioner contends she did not surrender her license due to reasons concerning her professional competence, professional performance, or financial integrity but because “she was defrauded by a nursing school that took her tuition but did not tell her the school was not accredited and would not provide her with the education necessary to qualify for an RN license.”  P. Br. at 3.  

Unfortunately, Petitioner’s assertions, even if I fully credit them, would not affect the outcome here.  It is not necessary to establish why Petitioner chose to surrender her license.  The only relevant inquiry is whether she did so to resolve a disciplinary proceeding pending against her that concerned her professional competence, professional performance, or financial integrity.  42 C.F.R. § 1001.501(a)(2).  There is no dispute that she did. 

The disciplinary proceeding PLIS initiated stemmed from an allegation Petitioner improperly obtained her RN license without completing the necessary prelicensure requirements.  IG Ex. 2.  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 without completing the necessary prelicensure requirements plainly concerns that individual’s professional competence or performance. 

In sum, the Connecticut Department of Public Health, acting through its investigative arm, initiated a formal disciplinary proceeding against Petitioner concerning the allegation that she obtained her nursing license without completing the necessary prelicensure requirements.  Petitioner opted to resolve that pending formal disciplinary proceeding by surrendering her license.  I acknowledge Petitioner’s claim that she was defrauded by Siena College of Health and surrendered her license for that reason alone.  But the IG’s authority to exclude Petitioner does not require the IG to prove she did not complete the necessary prelicensure requirements.  Instead, the IG needs only establish Petitioner surrendered her nursing license while a formal disciplinary proceeding against her concerning her professional competence or performance was pending.  Act § 1128(b)(4)(B); 42 C.F.R. § 1001.501(a)(2).  The IG has done so. 

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

Petitioner asserts her exclusion is disproportionate because she was the victim of fraud, not a perpetrator.  P. Br. at 5.  While I am sympathetic to Petitioner’s claim, I have no discretion to supersede the IG’s judgment once she has established a factual basis to

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exercise her permissive exclusion authority.  42 C.F.R. § 1005.4(c)(5); see also Christy Nichols Frugia, DAB No. 2736 at 4 (2016) (“where the statutory requirements for a permissive exclusion are met, the ALJ, and thus the Board, may not look behind the I.G.’s decision to impose an exclusion . . . .”). 

Petitioner otherwise contends she holds a valid licensed practical nurse (LPN) license in the state of New York and asserts New York did not take action against her LPN license because she obtained it from a different school.  P. Br. at 4-5; P. Ex. 1.  Petitioner appears to cite grounds that would serve as a basis for her early reinstatement.  See 42 C.F.R. § 1001.501(c)(1) (providing the IG may reinstate an excluded individual before the three-year minimum period if that individual obtains or retains a health care license from a different licensing authority after “fully and accurately” disclosing the circumstances underlying the basis for exclusion). 

To the extent Petitioner seeks reinstatement, I have no authority to provide that relief.  42 C.F.R. § 1001.3002(f).  Only the IG may do so.  42 C.F.R. § 1001.3001(a).  The IG acknowledges early reinstatement is possible in this instance, see IG Reply at 4, and has submitted evidence confirming IG counsel corresponded with Petitioner’s counsel and provided instructions for Petitioner to apply for early reinstatement based on her current LPN licensure. 

If Petitioner wishes to pursue early reinstatement, she should follow the instructions set forth at https://oig.hhs.gov/exclusions/reinstatement.asp.  She should submit evidence confirming she has “fully and accurately” disclosed the circumstances underlying her exclusion to the appropriate New York licensing authority.  42 C.F.R. § 1001.501(c)(1).  Petitioner should also carefully review the factors the IG will consider in assessing her request for early reinstatement and address them to the best of her ability.  See 42 C.F.R. §§ 1001.501(c)(1)(i)-(ix), 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)).