Denesha Latoya Knight, DAB CR6538 (2024)

DECISION

I uphold the determination of the Inspector General (IG) of the United States Department of Health and Human Services to exclude Denesha Latoya Knight (Petitioner) from participation in all federal health care programs.

Because Petitioner may qualify for early reinstatement, I encourage Petitioner to file an application for reinstatement with the IG.

I. Background and Procedural History

In a January 31, 2024 notice, the IG excluded Petitioner from participation in all federal health care programs.  The IG cited section 1128(b)(4) of the Social Security Act (42 U.S.C. § 1320a-7(b)(4)) as the basis for Petitioner’s exclusion.  The IG took this action because Petitioner’s license to provide health care as a registered nurse (RN) in Florida was revoked, suspended, or otherwise lost, or was surrendered while a formal disciplinary proceeding was pending, for reasons bearing on Petitioner’s professional competence, professional performance, or financial integrity.  The notice indicated that the exclusion would be effective 20 days from the date of the notice.  IG Ex. 1 at 1.

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The January 31 exclusion notice also stated that the exclusion would remain in effect until the IG reinstated Petitioner.  To be reinstated, the notice specified that Petitioner must regain her Florida RN license.  However, the notice also indicated that the IG could consider early reinstatement if Petitioner obtains another state health care license or Petitioner has completed three years of exclusion.  IG Ex. 1 at 1.

In response to the IG’s January 31 exclusion notice, on February 28, 2024, Petitioner sent an email to the IG’s exclusion email address indicating that Petitioner needed assistance filing an appeal of the exclusion.  The February 28 email also stated that Petitioner still had a valid licensed practical nurse (LPN) license in Connecticut.  The IG forwarded that email to the Civil Remedies Division on February 29, 2024.  On March 4, 2024, Petitioner electronically filed the February 28 email with the Civil Remedies Division.  Electronic Filing System (E-File) Doc. Nos. 1, 2.

On March 5, 2024, the Civil Remedies Division acknowledged receipt of the hearing request, informed the parties that I would hold a prehearing conference on March 26, 2024, and issued my Standing Order.

On March 26, 2024, I held a telephonic prehearing conference, the substance of which is summarized in my March 26, 2024 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  At the conference, I advised Petitioner of the right to be represented by counsel; however, Petitioner decided to proceed self-represented.  I discussed the prehearing exchanges the parties would need to submit, and the parties agreed to a prehearing submission schedule.  In addition, the IG stated that, based on Petitioner’s active LPN license, the IG would determine whether Petitioner was eligible to seek reinstatement from exclusion.

On March 26, 2024, the IG sent an email to Petitioner stating that Petitioner was eligible to apply for reinstatement under 42 C.F.R. § 1001.501(c)(1) based on Petitioner’s LPN license and that, in order to seek reinstatement, Petitioner needed to submit various documents to the IG.  IG Ex. 8.  On April 23, 2024, the IG sent Petitioner an email with detailed instructions for filing a reinstatement application.  IG Ex. 9.

On April 24, 2024, the IG requested an extension of time to file a prehearing exchange so that the IG would have enough time to process Petitioner’s request for early reinstatement.  E-File Doc. No. 6.  I granted the IG’s request.  E-File Doc. Nos. 7-9.

On June 28, 2024, the IG timely filed a brief (IG Br.) and seven proposed exhibits (IG Exs. 1-7) with the Civil Remedies Division.

On July 9, 2024, the IG sent an email to Petitioner stating that the IG had not yet received Petitioner’s application for reinstatement.  The IG encouraged Petitioner to review the

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April 23 email and instructions for applying for reinstatement.  The IG stated that reinstatement could not be granted unless Petitioner first filed an application.  IG Ex. 10.

On August 2, 2024, Petitioner timely filed a brief (P. Brief) with the Civil Remedies Division.  On August 13, 2024, the IG timely filed a reply brief (IG Reply) and three additional proposed exhibits (IG Exs. 8-10).

II. Issue

Whether the IG had a legitimate basis to exclude Petitioner from participation in all federal health care programs under 42 U.S.C. § 1320a-7(b)(4).

III. Evidentiary Rulings

I admit IG Exhibits 1 through 10 into the record, without objection.  See Standing Order ¶ 13; see also 42 C.F.R. § 1005.8(c).

IV. Decision on the Record

Both of the parties indicated that they did not have any witnesses to present and that an in-person hearing was not necessary to decide this case.  P. Br. at 3; IG Br. at 6-7.  Therefore, I render this decision on the basis of the written record.  Standing Order ¶¶ 12, 16; see also 42 C.F.R. § 1005.6(b)(5).

V. Jurisdiction

I have jurisdiction to hear and decide this case.  42 U.S.C. §§ 405(b), 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a).

VI. Findings of Fact

1) The Florida Department of Health licensed Petitioner as an RN on December 17, 2020.  IG Ex. 2.

2) On March 7, 2023, the Florida Department of Health received information from the National Council of State Boards of Nursing and the Federal Bureau of Investigation that alleged Petitioner received a fraudulent diploma from Siena College to obtain a Florida RN license.  IG. Ex. 5 at 7.

3) On March 15, 2023, the Florida Department of Health completed the investigation into Petitioner based on the alleged violation of Fla. Stat. §§ 456.072(1)(h), (k), (m), 464.018(1)(a), (o).  IG Ex. 5 at 7.

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4) On March 24, 2023, Petitioner signed a Voluntary Relinquishment of License and, on March 29, 2023, filed that document with the Deputy Clerk for the Florida Department of Health.  IG Ex. 5 at 3-6.

5) The Voluntary Relinquishment of License had a case caption indicating that the adjudicatory body was the “Department of Health, Board of Nursing.”  The case caption styled the parties as “Department of Health, Petitioner, v. Denesha Latoya Knight, RN, Respondent.”  IG Ex. 5 at 3.

6 ) The Voluntary Relinquishment of License stated the following (IG Ex. 5 at 3):

1. Petitioner voluntarily relinquished her license to practice as an RN in Florida.
2. Petitioner executed the Voluntary Relinquishment “to avoid further administrative action” and acknowledged that the “Voluntary Relinquishment shall be construed as disciplinary action against [Petitioner’s] license pursuant to section 456.072(1)(f), Florida Statutes.”
3. Petitioner agreed to voluntarily cease practicing as an RN immediately.
4. Petitioner waived “a determination of probable cause . . . regarding the complaint, the investigative report of the Department of Health, and all other information obtained pursuant to the Department’s investigation . . . .”

7) On May 1, 2023, the Florida Board of Nursing held a teleconferenced public meeting to consider Petitioner’s voluntary relinquishment of her Florida RN license.  IG Ex. 5 at 1.

8) On May 26, 2023, the Florida Board of Nursing issued a Final Order accepting Petitioner’s Voluntary Relinquishment of License as a resolution to the disciplinary matter pending against Petitioner.  IG Ex. 5 at 1-2.  The Final Order also had a case caption styled as “Department of Health, Petitioner, v. Denesha Latoya Knight, Respondent.”  IG Ex. 5 at 1.

VII. Conclusions of Law and Discussion

A. The IG excluded Petitioner under 42 U.S.C. § 1320a-7(b)(4)(B), and the IG has proven each required element under the statute.

The IG cites 42 U.S.C. § 1320a-7(b)(4) as the basis for Petitioner’s permissive exclusion.  IG Ex. 1.  The statute provides, in pertinent part:

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(b) PERMISSIVE EXCLUSION. – The Secretary may exclude the following individuals and entities from participation in any Federal health care program

* * * *

(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.

42 C.F.R. § 1320a-7(b)(4) (emphasis added).

The IG excluded Petitioner due to “Petitioner’s voluntary surrender of her license to practice as a [RN] in Florida while a formal disciplinary proceeding was pending before the State of Florida Department of Health.”  IG Br. at 2.

Petitioner admits that she surrendered her Florida RN license while a state formal disciplinary proceeding was pending against her and that the proceeding concerned professional competence, professional performance, or financial integrity.  P. Br. at 2.  Petitioner explained that, while she surrendered her RN license, Petitioner did not admit any guilt concerning her license situation.  P. Br. at 4.  Petitioner asserts:  “I was unaware that the school I attended was selling fraudulent diplomas, as I flew to Florida every month for three days for six months to attend classes.”  P. Br. at 4.  Petitioner states that her appeal of the IG’s exclusion is based on the fact that Petitioner has “an active unencumbered LPN license in Connecticut” and Petitioner is “simply asking that I am allowed to work and go back to school.”  P. Br. at 4; IG Ex. 3.

I accept Petitioner’s statements concerning the surrender of her Florida RN license.  The record supports the conclusion that Petitioner surrendered her RN license while formal disciplinary proceedings were pending.  The Florida Department of Health, Board of

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Nursing, conducted a teleconferenced public meeting under provisions in the Florida Administrative Procedure Act and accepted Petitioner’s voluntary relinquishment in a formal Final Order.  IG Ex. 5 at 1.  Both the Voluntary Relinquishment of License document and the Final Order have case captions indicating that a formal proceeding had been initiated.  IG Ex. 5 at 1, 3.  Finally, Petitioner surrendered her RN license “to avoid further administrative action” and understood that the voluntary relinquishment of the RN license is a disciplinary action under Florida law.  IG Ex. 5 at 3.

In addition, the record supports the conclusion that the voluntary relinquishment involved Petitioner’s professional competence.  In order to be licensed as an RN in Florida, one must be a graduate of an approved or accredited program.  Fla. Stat. § 464.008(c)(1), (3).  However, the diploma Petitioner received from Siena College was fraudulent.  IG Ex. 5 at 7; IG Ex. 6.  Regardless as to whether Petitioner knew that the diploma she received did not qualify her to be an RN, there is no doubt that she surrendered her license because her nursing education was insufficient.  See IG Reply at 1.  The lack of sufficient education means that the voluntary surrender involved a lack of professional competency.  Fakayatu Ibironke Agboola, DAB CR6520 at 5 (2024) (citing Tracey Gates, R.N., DAB No. 1768 (2001)).

Although Petitioner argues that she should not be excluded because she still maintains an active LPN license in Connecticut, I agree with the IG that nothing in the text of 42 U.S.C. § 1320a-7(b)(4) limits exclusion to circumstances where an individual has lost all licenses to provide health care.  IG Br. at 3-4.  Rather, relevant to that argument, the regulations implementing that statutory provision allow the IG to reinstate an excluded individual in the following circumstances:

If an individual or entity that is excluded in accordance with this section fully and accurately discloses the circumstances surrounding the action that formed the basis for the exclusion to a licensing authority of a different State or to a different licensing authority in the same State and that licensing authority grants the individual or entity a new health care license or has decided to take no adverse action as to a currently held health care license, the OIG will consider a request for early reinstatement.  The OIG will consider the following factors in determining whether a request for early reinstatement under this paragraph (c)(1) will be granted:

(i) The circumstances that formed the basis for the exclusion;

(ii) Whether the second licensing authority is in a state that is not the individual's primary place of practice;

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(iii) Evidence that the second licensing authority was aware of the circumstances surrounding the action that formed the basis for the exclusion;

(iv) Whether the individual has demonstrated that he or she has satisfactorily resolved any underlying problem that caused or contributed to the basis for the initial licensing action;

(v) The benefits to the Federal health care programs and program beneficiaries of early reinstatement;

(vi) The risks to the Federal health care programs and program beneficiaries of early reinstatement;

(vii) Any additional or pending license actions in any State;

(viii) Any ongoing investigations involving the individual; and

(ix) All the factors set forth in [42 C.F.R.] § 1001.3002(b).

42 C.F.R. § 1001.501(c)(1) (emphasis added).

The record in this case indicates that Petitioner may qualify for early reinstatement.  IG Exs. 3-4, 6-7.  However, Petitioner must first submit an application to the IG.  42 C.F.R. § 1001.3001(a)(2); IG Reply at 2.1

Therefore, I conclude that the IG had a legitimate basis to exclude Petitioner from participation in all federal health care programs.

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B. The length of Petitioner’s exclusion is reasonable as a matter of law.

Under 42 U.S.C. § 1320a-7(c)(3)(E), the period of exclusion “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 . . . .”  Because Petitioner has not asserted that her RN license has been reinstated, I conclude that an indefinite period of exclusion is warranted under 42 U.S.C. § 1320a-7(c)(3)(E).

VIII. Conclusion

I affirm the IG’s determination to exclude Petitioner from participating in all federal health care programs under 42 U.S.C. § 1320a-7(b)(4).