Donna Wells, DAB CR6991 (2026)

DECISION

Petitioner, Donna Wells, is a nurse who practiced in Ohio.  Petitioner was charged with one count of Medicaid fraud and one count of theft.  Petitioner plead guilty to a lesser included offense of possession of criminal tolls.  The court accepted the plea and entered a judgment of conviction.

Based on her conviction, the Inspector General (IG) has excluded Petitioner from participating in Medicare, Medicaid, and all federal health care programs for a minimum period of five years, as authorized by section 1128(a)(1) of the Social Security Act (Act).  Petitioner appeals the exclusion.

For the reasons discussed below, I find that the IG properly excluded Petitioner.  Because the statute mandates a minimum five-year exclusion, the length of her exclusion is, by law, reasonable.

Page 2

Background

In a letter dated May 29, 2026, the IG notified Petitioner that she was excluded from participating in all federal health care programs for a period of five years because she had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The letter explained that section 1128(a)(1) of the Act authorizes the exclusion.  IG Ex. 1 at 1.

Petitioner timely requested review, and the matter is before me.

Following a prehearing conference, I issued an order, dated July 15, 2026, directing the parties to submit briefs and documentary evidence.  Order Summarizing Prehearing Conference and Schedule for Filing Briefs and Documentary Evidence (E-File # 4).  Pursuant to that order, on August 14, 2026, the IG submitted his prehearing exchange – a written brief (IG Br.) and four exhibits (IG Exs. 1-4).

Petitioner filed her prehearing exchange on or around September 15, 2026.  Petitioner did not submit any exhibits.

Because neither party proposes any witnesses, an in-person hearing would serve no purpose.  I close the record and issue this decision based on the parties’ written submissions.  See IG Br. at 3, 4, Order at 3-4 (¶ 7), Anil Hanuman, DAB No. 3080 at 11-12 (2022); Emery County Care and Rehab. Ctr., DAB No. 3006 at 5-8 (2020); James Brian Joyner, DAB No. 2902 at 12 (2018); CRDP ¶ 16(b).

In the absence of any objections, I admit into evidence IG Exs. 1-4.

Discussion

1. Petitioner must be excluded from program participation for a minimum of five years because she was convicted of a criminal offense related to the delivery of an item or service under a state health care program.  Act § 1128(a)(1).1

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  42 C.F.R. § 1001.101(a).

Page 3

Petitioner was employed as a nurse in Ohio.  P. Br.  The Grand Jury indicted Petitioner on two counts; one count of Medicaid fraud and one count of theft.  IG Ex. 4 at 1.  The Indictment explains that Petitioner did knowingly make or cause to be made false or misleading statement or representation for use in obtaining reimbursement from the Medicaid program.  The loss to the Medicaid program was valued at more than $1,000.  Petitioner was also indicted with purposefully depriving the Ohio Department of Medicaid of property or services.  The loss to the Medicaid program was valued at more than $1,000.  Id.

On February 5, 2026, Petitioner plead guilty to a lesser included offense of possession of criminal tools.  IG Ex. 3.  Petitioner was sentenced to 180 days at the Franklin County Corrections Center, all suspended as long as Petitioner paid the ordered restitution in full.  Id.  Petitioner was also ordered to pay $3,000 to the Ohio Department of Medicaid.  Id.

The Act and regulations provide that a person is “convicted” when “a judgment of conviction has been entered,” regardless of whether that judgment has been (or could be) expunged or otherwise removed.  Act § 1128(i)(1); 42 C.F.R. § 1001.2(a)(2).  Individuals who participate in “deferred adjudication or other program or arrangement where judgment of conviction has been withheld” are also “convicted” within the meaning of the statute.  Act § 1128(i)(4); 42 C.F.R. § 1001.2(d).  Based on these provisions, the Departmental Appeals Board characterizes as “well established” the principle that a “conviction” includes diverted, deferred, and expunged convictions, regardless of whether state law treats such actions as a conviction.  Henry L. Gupton, DAB No. 2058 at 8 (2007), aff’d sub nom. Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008). Petitioner was thus “convicted,” within the meaning of the statute and regulations.

Petitioner made false claims to the Ohio State Medicaid program and caused a loss of more than $1,000.  Petitioner’s crime is thus related to the delivery of services under a state health care program.

Petitioner pleaded guilty to the lesser included offense of possession of criminal tools.  The court accepted the plea and entered a judgment of conviction.

Petitioner does not dispute that she was convicted or that her conviction is related to the delivery of services under a state health care program.  Instead, Petitioner requests that I eliminate or reduce her exclusion so that she can continue to support her family.  While I can appreciate Petitioner’s remorse, Petitioner is ultimately requesting equitable relief which I do not have authority to grant.

Page 4

Conclusion

For the reasons outlined above, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid and all federal health care programs, and I sustain the five-year exclusion.