Yvrose Thermitus A.K.A Yvrose Thompson, DAB CR6691 (2025)

DECISION

I affirm the 5-year exclusion of Petitioner, Yvrose Thermitus A.K.A. Yvrose Thompson, from participation in all federal health programs.

I.     Background

In a September 30, 2024 notice, the Inspector General (IG) of the Department of Health and Human Services excluded Petitioner from participation in all federal health care programs under section 1128(a)(3) of the Social Security Act (42 U.S.C. § 1320a-7(a)(3)) for a period of five years due to her felony conviction in the United States District Court for the Southern District of Florida 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.  The notice stated that the exclusion would take effect 20 days after the date on the notice.  IG Exhibit (Ex.) 1 at 1.

On October 22, 2024, Petitioner requested a hearing to dispute the exclusion.  On October 24, 2024, the Civil Remedies Division acknowledged receipt of the hearing request, gave notice of a prehearing conference on November 19, 2024, and issued my

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Standing Order.  On November 18, 2024, Petitioner’s counsel moved for a continuance of the prehearing conference.  I granted the motion and rescheduled the conference.

On January 21, 2025, I held a telephonic prehearing conference with the parties, the substance of which is summarized in my January 22, 2025 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  At the conference, I denied Petitioner’s request for a stay of the exclusion pending the outcome of this case because the regulations, issued pursuant to a statute, require the exclusion to take effect 20 days after the date on the exclusion notice.  42 U.S.C. § 1320a-7(c)(1); 42 C.F.R. §§ 1001.2002(b), 1005.4(c)(1), (4); Ali v. U.S. Dep’t of Health and Human Srvs., No. 21-CV-12365, 2022 WL 3130227 *4 (E.D. Mich. Aug. 4, 2022); Seide v. Shalala, 31 F. Supp. 2d 466, 469 (E.D. Pa. 1998).  Also at the conference, the parties agreed to a prehearing submission schedule.

On February 4, 2025, the IG submitted a prehearing exchange consisting of a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  On March 31, 2025, Petitioner requested a 30-day extension to file a prehearing exchange.  I granted Petitioner’s request.  Despite this extension, Petitioner did not file a prehearing exchange.

II.     Admission of Exhibits

I admit IG Exhibits 1 through 5 into the record, without objection.  Standing Order ¶ 13; see 42 C.F.R. § 1005.8(c).

III.     Decision on the Written Record

I directed the parties to submit written direct testimony from all witnesses that the parties wanted to present in this case and stated that the opposing party could request to cross-examine the witnesses.  Standing Order ¶¶ 11-12; see also 42 C.F.R. § 1005.16(b); Civil Remedies Division Procedures (CRDP) § 16(b).  I also advised the following:

I will not conduct a hearing in this case unless a party files admissible, written direct testimony, and the opposing party asks to cross-examine one or more witnesses.  If I do not conduct a hearing, then I will issue [a decision] based on the written record.

Standing Order ¶ 12; see also CRDP § 19(b).  Consistent with my Standing Order, the CRDP states the following:

The ALJ may determine that an oral hearing is unnecessary and not in the overall interest of judicial economy if the parties do not identify any proposed witnesses, do not offer

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the written direct testimony of any witnesses when ordered to do so, or do not request an opportunity to cross-examine a witness whose written direct testimony has been offered.  Under these circumstances, the ALJ may decide the case based on the written record.

CRDP § 19(d).

In the present case, all deadlines for prehearing exchanges have passed and neither party filed written direct testimony.  Indeed, the IG does not have any witness testimony to offer and does not believe that an in-person hearing is necessary.  IG Br. at 6.  Petitioner neither filed written direct testimony for witnesses nor requested the issuance of subpoenas for any witnesses to appear at a hearing.  As a result, I do not need to hold an in-person hearing and may issue a decision based on the written record.  EI Medical, Inc., DAB No. 3117 at 15 (2023); Vandalia Park, DAB No. 1940 (2004).  Petitioner’s failure to file a prehearing exchange does not preclude me from issuing a decision based on the written record.  Anil Hanuman, D.O., DAB No. 3080 at 12 (2022).

IV.     Issue

Whether the IG had a legitimate basis to exclude Petitioner for five years under 42 U.S.C. § 1320a-7(a)(3).

V.     Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007, 1005.2.

VI.     Findings of Fact

1) On January 12, 2023, a grand jury empaneled by the United States District Court for the Southern District of Florida (District Court) returned an Indictment against Petitioner and several other individuals.  IG Ex. 2.  Count 1 of the Indictment charged Petitioner and several others with Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. § 1349.  IG Ex. 2 at 9-13.

2) On November 13, 2023, Petitioner signed a Plea Agreement in which she agreed to plead guilty to Count 1 of the Indictment in exchange for the dismissal of the other charges pending against her.  IG Ex. 3. 

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3) In the Plea Agreement, Petitioner stated that she “understands and acknowledges that because of this plea, [Petitioner] will be excluded from Medicare, Medicaid, and all Federal health care programs.  [Petitioner] agrees to complete and execute all necessary documents provided by any department or agency of the federal government, including this exclusion within 60 days of receiving the documents.”  IG Ex. 3 at 2.

4) On November 13, 2023, Petitioner signed a document entitled Factual Basis in Support of Plea.  IG Ex. 5.  Petitioner agreed to the following facts:

1. Petitioner owned and operated Unity Health Care Training & Employment LLC, a limited liability company located in Maplewood, New Jersey.  IG Ex. 5 at 2, 4.
2. Petitioner, with various co-conspirators, recruited additional co-conspirators who were seeking nursing credentials and employment as registered nurses, licensed practical nurses, and licensed vocational nurses in the health care field.  IG Ex. 5 at 6.
3. Petitioner, with various co-conspirators, “caused to be created and distributed, via interstate wire communications, false and fraudulent transcripts and diplomas to co-conspirators . . . and others falsely and fraudulently representing that the co-conspirators attended Palm Beach School of Nursing, Quisqueya, or Florida College of Health in Florida and completed the necessary courses and/or clinicals to obtain [registered nurse] or [licensed practical nurse/licensed vocational nurse] diplomas, when in fact the co-conspirators had never actually completed the necessary courses and/or clinicals.”  IG Ex. 5 at 6-7.
4. Petitioner’s co-conspirators used the false and fraudulent diplomas and transcripts to obtain licensure in Ohio, New York, New Jersey, and Massachusetts as registered nurses, licensed practical nurses, and licensed vocational nurses, and to be hired by health care providers.  IG Ex. 5 at 7.
5. “[Petitioner] as owner and operator of Unity Health Care Training . . . used the private business to recruit and train aspiring nurses in New Jersey.  In or around 2018 or 2019,

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[Petitioner] agreed to pay [J.N.] approximately $10,000 in cash for each nursing school diploma and transcript the Palm Beach School of Nursing issued to her students.  [J.N.] issued five diplomas and transcripts to aspiring nurses in New Jersey who were recruited and trained by [Petitioner].  [Petitioner] communicated directly with [G.R.] to obtain the diplomas and transcripts for her students.  These nursing school students each paid [Petitioner] approximately $15,000 for the documents.  Therefore, the intended loss is $75,000.  [Petitioner] earned $20,000.00 because of the students she recruited at Unity Health Care Training.”  IG Ex. 5 at 8.

5) On May 15, 2024, the District Court issued a Judgment in a Criminal Case stating that Petitioner pleaded guilty to Count 1 in the Indictment and that Petitioner “is adjudicated guilty of . . . 18 U.S.C. § 1349 Conspiracy to commit wire fraud.”  IG Ex. 4 at 1.

6) The District Court sentenced Petitioner to five years of probation.  IG Ex. 4 at 2.

VII.     Conclusions of Law and Analysis

1. Petitioner is subject to exclusion under 42 U.S.C. § 1320a‑7(a)(3) because she was convicted of a felony offense related to fraud in connection with the delivery of a health care item or service.

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in all federally funded health care programs when that individual:

has 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 . . . of a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

42 U.S.C. § 1320a-7(a)(3).  The Secretary delegated to the IG his authority to impose mandatory exclusions.  42 C.F.R. § 1001.101.

As stated in the Secretary’s regulations, the three essential elements to support a mandatory exclusion are:  (1) a conviction under federal or state law of a felony that occurred after August 21, 1996; (2) the felony is related to fraud, theft, embezzlement,

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breach of fiduciary responsibility, or other financial misconduct; and 3) the felony was in connection with the delivery of a health care item or service.  42 C.F.R. § 1001.101(c)(1).

As explained below, the IG has proven, by a preponderance of the evidence, that Petitioner was convicted of a felony under federal law, for conduct occurring after 1996, which was related to fraud and was in connection with the delivery of a health care item or service.  Therefore, Petitioner is subject to a mandatory exclusion.

1. Petitioner was convicted of a felony under federal law for conduct that occurred after August 21, 1996.

For purposes of exclusion, individuals are deemed “convicted” of an offense “when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged” or “when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court.”  42 U.S.C. § 1320a‑7(i)(1), (3).

Petitioner was convicted of Conspiracy to Commit Wire Fraud.  As stated in Findings of Fact Nos. 2 through 5 above, she pleaded guilty to the crime, and the District Court accepted that plea and issued a judgment of conviction.

Further, Petitioner was convicted of a felony.  Petitioner’s conviction was for a class C felony because wire fraud carries a maximum penalty of 20 years of imprisonment, and the maximum penalty for conspiracy is the same as that of the underlying offense.  See 18 U.S.C. §§ 1343, 1349, 3559(a)(3).

Finally, Petitioner’s criminal conduct occurred in 2018 and 2019.  IG Ex. 5 at 8.

2. Petitioner was convicted of a felony relating to fraud.

The IG may only impose a mandatory exclusion under 42 U.S.C. § 1320a-7(a)(3) if there is a felony conviction relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.

The term “fraud” in section 1320a-7(a)(3) is “targeting fraud generally,” which means that it encompasses any type of fraud and not merely fraud involving financial misconduct.  Morgan v. Sebelius, 694 F.3d 535, 538 (4th Cir. 2012).

The words “relating to” mean that exclusion under section 1320a-7(a)(3) is not limited to individuals convicted of the generic offense of fraud (i.e., crimes with the core elements of fraud) but to all criminal conduct that has a factual relationship to fraud.  Friedman v. Sebelius, 686 F.3d 813, 821 (D.C. Cir. 2012).  This is because the words “relating to” in

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section 1320a-7 are “deliberately expansive” and have a broad “ordinary meaning” that is “to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.”1  Friedman, 686 F.3d at 820; see also Yohannes Tinsae, DAB No. 3084 at 9-10 (2023).  Put another way, there only needs to be a nexus or common-sense connection to fraud for an exclusion to be imposed.  See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Tinsae, DAB No. 3084 at 10; Berton Siegel, D.O., DAB No. 1467 (1994).

The breadth of the term “relating to” can be seen in the Friedman case.  A corporation was convicted of “misbranding” a medication, with the intent to defraud or mislead, through marketing claims about the medication that were false.  Friedman, 686 F.3d at 816.  However, the defendants in Friedman were senior corporation officers who were only convicted of misdemeanor misbranding under the responsible corporate officer doctrine because they failed to prevent the corporation’s fraudulent marketing of the medication.  686 F.3d at 816.  Although the corporate officers were not convicted of fraud, their crime was still related to fraud for purposes of exclusion because their crime was a failure to stop the corporation from engaging in fraud.  Friedman, 686 F.3d at 824.

There is no doubt that Petitioner’s crime was related to fraud.  Petitioner was convicted of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349.  The substantive crime underlying the conspiracy, wire fraud, includes as elements of the offense the terms “defraud” and “fraudulent.”  18 U.S.C. § 1343.  Further, as described in the Findings of Fact No. 4 above, Petitioner was involved in fraudulently obtaining nursing credentials for other individuals so that those individuals could fraudulently obtain licenses and jobs as nurses.  Therefore, Petitioner’s felony offense was related to fraud.

3. Petitioner’s conviction was in connection with the delivery of a health care item or service.

The final element required to exclude an individual under 42 U.S.C. § 1320a-7(a)(3) is whether the felony offense was “in connection with the delivery of a health care item or service.”

The term “in connection with” is equivalent to the term “relating to,” discussed above.  As a result, “in connection with” similarly means that there only has to be a nexus or common-sense connection.  Quayum, 34 F. Supp. 2d at 143; see Charice D. Curtis, DAB No. 2430 at 5 (2011).  Therefore, the “in connection with” phrase is applied in the same broad manner as the “relating to” phrase.  As explained by the Friedman court:

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Congress used “relating to” and “in connection with” each to denote a factual relationship–respectively, the relationship between the facts underlying a person’s conviction and conduct that would qualify as “fraud”; and the relationship between that conduct and the delivery of health care.

686 F.3d at 822.  Because the “in connection with” phrase means that there simply needs to be a factual connection between the criminal conduct and the delivery of a health care item or service, exclusions under section 1320a-7(a)(3) are not limited “to offenses involving the actual delivery of healthcare.”  Curtis, DAB No. 2430 at 5.

As described in Findings of Fact Nos. 4c and 4d, Petitioner’s criminal conduct allowed individuals to fraudulently obtain nursing credentials and, in turn, obtain nursing jobs in the health care field.  Therefore, her crime was intended to allow unqualified individuals to provide nursing services to patients.  This is a sufficient connection between Petitioner’s crime and the delivery of a health care item or service.

2. Petitioner must be excluded from participation in all federal health care programs for a minimum of five years.

As indicated above, the record shows that Petitioner was convicted, as that term is defined in 42 U.S.C. § 1320a-7(i), and that conviction meets all of the elements under 42 U.S.C. § 1320a-7(a)(3) for a mandatory exclusion.  Therefore, Petitioner is subject to a mandatory minimum exclusion of five years.  42 U.S.C. § 1320a-7(c)(3)(B); see Travers v. Shalala, 20 F.3d 993, 998 (1993).

I note that, as stated in Findings of Fact No. 3 above, Petitioner agreed and acknowledged that her criminal plea would result in this exclusion.  Petitioner also agreed to assist in the effectuation of paperwork related to this exclusion.  Petitioner’s appeal in this case is inconsistent with the terms in the Plea Agreement, and the terms of the plea agreement expressly support the IG’s exclusion in this matter.

VIII.     Conclusion

I affirm the IG’s determination to exclude Petitioner for five years from participating in all federal health care programs under 42 U.S.C. § 1320a-7(a)(3).