          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Emily Jacqueline Arowosaye, R.N.,   :
                       Petitioner   :
                                    :
            v.                      : No. 1410 C.D. 2016
                                    : Submitted: February 24, 2017
Bureau of Professional and          :
Occupational Affairs, State         :
Board of Nursing,                   :
                         Respondent :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                            FILED: March 28, 2017


             Emily Jacqueline Arowosaye, R.N. (Arowosaye) petitions for review
from an order of the Department of State, State Board of Nursing (Board) revoking
her license to practice professional nursing in the Commonwealth of Pennsylvania
due to her guilty plea to Medicaid fraud in the State of New Jersey. For the
reasons that follow, we affirm with the exception of the portion of the order
conditioning reinstatement of Arowosaye’s license upon full payment of her New
Jersey restitution.


             Arowosaye served as the Director of Nursing for Be Kind Health Care
Services, Inc. (Be Kind), a corporation owned and operated by her husband.
Between July 2005 and April 2008, Be Kind employed approximately 62
employees including five nurses and ten home health aides.                       As Director of
Nursing, one of Arowosaye’s responsibilities was to ensure that employees of Be
Kind actually provided patients with the services for which the corporation billed
Medicare/Medicaid.


              In March 2010, Arowosaye’s husband was charged with Medicaid
fraud in New Jersey. Arowosaye was later charged as well, and on or about
August 4, 2010, she entered a guilty plea to one count of Medicaid Fraud-Third
Degree in violation of N.J.S.A. 30:4D-17(b).1 Arowosaye was sentenced to three

       1
         Section 17(b), pertaining to criminal and civil penalties, of the New Jersey Medical
Assistance and Health Services Act, provides:

              (b) Any provider, or any person, firm, partnership, corporation, or
              entity, who:

                      (1) Knowingly and willfully makes or causes to be made
              any false statement or representation of a material fact in any cost
              study, claim form, or any document necessary to apply for or
              receive any benefit or payment under P.L. 1968, c. 413; or

                     (2) At any time knowingly and willfully makes or causes to
              be made any false statement, written or oral, of a material fact for
              use in determining rights to such benefit or payment under P.L.
              1968, c. 413; or

                      (3) Conceals or fails to disclose the occurrence of an event
              which

                             (i) affects a person’s initial or continued right to any
              such benefit or payment, or

                             (ii) affects the initial or continued right to any such
              benefit or payment of any provider or any person, firm,
              partnership, corporation, or other entity in whose behalf a person
(Footnote continued on next page…)

                                                2
years’ probation and was ordered to pay $800,000 in restitution on a joint and
several liability basis with payments ranging from $100 to $600 per month.


              On May 9, 2011, the New Jersey Board of Nursing (New Jersey
Board) issued a Final Order of Discipline suspending Arowosaye’s license to
practice in New Jersey as a registered nurse for 18 months, followed by a period of
six months of probation.          She was also ordered to take an ethics course.
Arowosaye successfully completed the terms of her New Jersey licensure
probation and on July 8, 2013, the New Jersey Board reinstated her license but
permanently precluded her from all aspects of billing, from educating, teaching or
training others about billing, and from supervising others involved in billing.


(continued…)

              has applied for or is receiving such benefit or payment with an
              intent to fraudulently secure benefits or payments not authorized
              under P.L. 1968, c. 413 or in a greater amount than that which is
              authorized under P.L. 1968, c. 413; or

                       (4) Knowingly and willingly converts benefits or payments
              or any part thereof received for the use and benefit of any provider
              or any person, firm, partnership, corporation, or other entity to a
              use other than the use and benefit of such provider or such person,
              firm, partnership, corporation or entity; is guilty of a crime of the
              third degree, provided, however, that the presumption of
              nonimprisonment set forth in subsection e. of N.J.S.2C:44-1 for
              persons who have not previously been convicted of an offense
              shall not apply to a person who is convicted under the provisions
              of this subsection.

The accusation alleges that Arowosaye “did submit or cause to be submitted to Medicaid claims
for personal care assistance services allegedly provided to Medicaid beneficiaries when in fact
the personal care assistance services were not provided. . . .” (Reproduced Record (R.R.) at
129a-130a.)



                                               3
                On April 15, 2014, the Commonwealth, through its prosecuting
attorney, issued a two-count Order to Show Cause (OTSC) alleging Arowosaye
was subject to disciplinary action under the Professional Nursing Law (Nursing
Law)2 and the Criminal History Record Information Act (CHRIA)3 due to her New
Jersey conviction. Specifically, count one of the OTSC charged Arowosaye with
pleading guilty to Medicaid fraud, a crime of moral turpitude subjecting her to
discipline under Section 14(a)(5) of the Nursing Law.4 Count two charged that
Arowosaye’s conviction for Medicaid fraud was a felony subjecting her to
discipline under Section 9124(c)(1) of the CHRIA.5 On May 8, 2014, Arowosaye


      2
          Act of May 22, 1951, P.L. 317, as amended, 63 P.S. §§ 211-225.5.

      3
          18 Pa.C.S. §§ 9101-9183.

      4
          63 P.S. § 224(a)(5). That section provides as follows:

                (a) The Board may refuse, suspend or revoke any license in any
                case where the Board shall find that--

                                                ***

                        (5) The licensee has been convicted, or has pleaded guilty,
                or entered a plea of nolo contendere, or has been found guilty by a
                judge or jury, of a felony or a crime of moral turpitude, or has
                received probation without verdict, disposition in lieu of trial or an
                Accelerated Rehabilitative Disposition in the disposition of felony
                charges, in the courts of this Commonwealth, the United States or
                any other state, territory, possession or country.

Id.

      5
          18 Pa.C.S. § 9124(c)(1). Section 9124(c) provides:

                (c) State action authorized.--Boards, commissions or departments
                of the Commonwealth authorized to license, certify, register or
                permit the practice of trades, occupations or professions may
(Footnote continued on next page…)

                                                  4
filed an answer to the OTSC. After four continuances requested by Arowosaye, a
hearing was ultimately conducted on March 16, 2015.                     Arowosaye and her
husband both testified, and the Commonwealth provided documentary evidence
pertaining to Arowosaye’s New Jersey conviction, including her accusation, signed
guilty plea form and judgment of conviction.


             The hearing examiner issued a proposed report finding that
Arowosaye’s New Jersey conviction for Medicaid fraud constitutes a crime of
moral turpitude and she is subject to disciplinary action under both the Nursing
Law and the CHRIA as alleged in the OTSC. The hearing examiner recommended
Arowosaye’s license to practice as a registered nurse in the Commonwealth be
suspended for a period of two years, the initial 12 months of which would be
served as an active suspension followed by a one-year period of probation.
Attached to the hearing examiner’s proposed report was a notice explaining the
parties’ rights and stating, in pertinent part:



(continued…)

             refuse to grant or renew, or may suspend or revoke any license,
             certificate, registration or permit for the following causes:

                    (1) Where the applicant has been convicted of a felony.

                    (2) Where the applicant has been convicted of a
             misdemeanor which relates to the trade, occupation or profession
             for which the license, certificate, registration or permit is sought.

18 Pa.C.S. § 9124(c). The Commonwealth later amended count two of the OTSC to a violation
of Section 9124(c)(2) of the CHRIA, asserting the Medicaid fraud charge Arowosaye pleaded
guilty to in New Jersey was a misdemeanor related to the nursing profession.



                                              5
                    Any participant who wishes to appeal all or part of
              the Hearing Examiner’s proposed report to the Board
              must file exceptions in the form of a Brief on Exceptions
              with the Prothonotary of the Department of State within
              30 days after the date of mailing shown on this proposed
              report in accordance with the General Rules of
              Administrative Practice and Procedure at 1 Pa. Code §§
              35.211-214.

                                            ***

                     Failure to file a Brief on Exceptions within the
              time allowed under the General Rules of Administrative
              Practice and Procedure at 1 Pa. Code §§ 35.211-214 shall
              constitute a waiver of all objections to the proposed
              report.


(Hearing Examiner’s Proposed Report at 31.) (Emphasis in original). The Board
then issued a notice of intent to review the proposed report and informed
Arowosaye that if she wished to submit further argument regarding the proposed
sanction, she must do so in a brief on exceptions filed in accordance with the
General Rules of Administrative Practice and Procedure. Arowosaye did not file a
brief on exceptions.


              The Board then issued a final adjudication and order (FAO) adopting
the majority6 of the hearing examiner’s proposed report. However, after reviewing
the entire record, including Arowosaye’s mitigating evidence, the Board found the
recommended sanctions were too lenient given the severity of the criminal

       6
         The Board adopted all of the hearing examiner’s findings of fact except numbers 19-21,
24 and 32, and all of the hearing examiner’s conclusions of law except numbers 3, 8 and 9. The
Board adopted as its own and incorporated by reference the hearing examiner’s discussion
regarding violations.



                                              6
conviction and, instead, revoked7 Arowosaye’s license to practice professional
nursing.    In addition, the Board ordered that any petition for reinstatement
following the five-year revocation period must provide that, in addition to meeting
all administrative requirements for licensure, Arowosaye’s $800,000 in restitution
for her New Jersey conviction has been paid in full. This appeal followed.8


              Arowosaye argues that the Board’s finding that she violated Section
14(a)(5) of the Nursing Law and Section 9124(c)(1) of the CHRIA by causing
claims for services to be submitted to Medicaid that were not actually provided is
not supported by substantial evidence. Arowosaye also claims her Medicaid fraud
charge is not a crime of moral turpitude and the Commonwealth failed to prove it
was a misdemeanor related to the nursing profession. In addition, she argues that
pursuant to Nguyen v. Bureau of Professional and Occupational Affairs, 53 A.3d
100 (Pa. Cmwlth. 2012), she was permitted to set forth in the record her role in the
underlying criminal case, and the hearing examiner erred in interpreting this as a
collateral attack on her conviction. She further argues that the Commonwealth’s
prosecution is barred by the doctrine of laches.




       7
         Pursuant to Section 15.2 of the Nursing Law, an individual whose license has been
revoked by the Board may reapply for a license after five years. 63 P.S. § 225.2, added by the
Act of December 20, 1985, P.L. 409.

       8
          Our review is limited to determining whether there has been an error of law, whether
constitutional rights were violated, and whether findings of fact are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Bethea-Tumani v.
Bureau of Professional and Occupational Affairs, 993 A.2d 921, 925 n.6 (Pa. Cmwlth. 2010).



                                              7
               As the Board correctly points out, Arowosaye failed to file a brief on
exceptions to the Board. Pursuant to the General Rules of Administrative Practice
and Procedure, a party desiring to appeal a proposed report to the agency shall file
a brief on exceptions within 30 days after service of a copy of a proposed report. 1
Pa. Code § 35.211. “Failure to file a brief on exceptions . . . shall constitute a
waiver of all objections to the proposed report.” 1 Pa. Code § 35.213. Arowosaye
was informed of these rules and her ability to file a brief on exceptions in both the
notice accompanying the hearing examiner’s proposed report as well as the
Board’s subsequent notice. Because Arowosaye failed to raise these arguments in
a brief on exceptions, they have been waived.9 Id.; Mostatab v. State Board of
Dentistry, 881 A.2d 1271, 1273 (Pa. Cmwlth. 2005) (citing Metro Transportation
Company v. Pennsylvania Public Utility Commission, 525 A.2d 24 (Pa. Cmwlth.
1987)); see also Dang v. Department of State, (Pa. Cmwlth., No. 371 C.D. 2010,
filed October 14, 2010).10


               The only issue not waived by Arowosaye is her claim that the Board
abused its discretion by imposing a penalty in excess of that proposed by the
hearing examiner. Section 14(a)(5) of the Law, 63 P.S. § 224(a)(5), authorizes the
Board to impose sanctions – up to and including revocation of an individual’s

       9
          We note that our Supreme Court addressed the issue of waiver in the recent decision
Board of Supervisors of Willistown Township v. Main Line Gardens, Inc., (Pa., Nos. 59-61 MAP
2016, filed February 22, 2017). This consolidated case is inapplicable as it pertains specifically
to Pa.R.C.P. No. 227.1(b) rather than the General Rules of Administrative Practice and
Procedure. Moreover, Pa.R.C.P. 227.1(b) only requires that parties file post-trial motions in
order to preserve issues for appeal, whereas 1 Pa. Code § 35.213 requires a party file a brief on
exceptions to avoid waiver.

       10
           Pursuant to the Court’s Internal Operating Procedures § 414, this unreported opinion is
cited for its persuasive value only and not as binding precedent.


                                                8
nursing license – for violating its provisions. See also 18 Pa.C.S. § 9124(c)(1).
The hearing examiner’s proposed sanction did not restrict the Board’s discretion in
imposing a more severe sanction that is authorized under the Law. See Telang v.
State Board of Medicine, 751 A.2d 1147 (Pa. 2000). Moreover, we may not
reweigh the evidence or substitute our judgment for that of the Board. See Bethea-
Tumani v. Bureau of Professional and Occupational Affairs, 993 A.2d 921, 932
(Pa. Cmwlth. 2010). In not accepting the hearing examiner’s recommendation of a
license suspension, the Board noted the severity of the offense to which
Arowosaye voluntarily pleaded guilty, the significant amount of funds involved,
and the fact that “[t]he Medicare/Medicaid system as well as all insurance systems
depend upon honest billing by practitioners providing care. Without it, the systems
would crumble resulting in a loss of care to patients.” (Board’s FAO at 7.)
Because the Board acted within its statutory authority in revoking her license and
there is nothing in the record indicating that this sanction was motivated by
anything other than the Board’s sound discretion, Arowosaye failed to prove the
Board abused its discretion.


             However, Arowosaye also argues that the Board abused its discretion
in conditioning her license reinstatement upon full payment of the $800,000 in
restitution she was ordered to pay as part of her New Jersey criminal sentence.
Given that she was only ordered to pay up to $600 per month, she argues that such
a condition, in essence, makes her revocation a lifetime ban which is a manifest
and flagrant abuse of discretion.


             The Nursing Law permits the Board to refuse, suspend or revoke a
license where the licensee, as is the case here, has pleaded guilty to a crime of


                                        9
moral turpitude. 63 P.S. § 224(a)(5). With respect to the reinstatement of a
license, the Nursing Law provides that “[a]ny person whose license has been
revoked may reapply for a license, after a period of at least five (5) years, but must
meet all of the licensing qualifications of this act for the license applied for, to
include the examination requirement, if he or she desires to practice at any time
after such revocation.” 63 P.S. § 225.2. There is nothing in that provision or
elsewhere in the Nursing Law that gives the Board the authority to preclude a
person from seeking reinstatement of his or her Nursing License five years after
the license has been revoked. In this case, because the Board erred in conditioning
her ability to seek reinstatement of her nursing license upon payment of restitution
ordered in a criminal case, that portion of the Board’s order is stricken. See Slawek
v. State Board of Medical Education and Licensure, 586 A.2d 362, 365 (Pa. 1991)
(holding proper review of an agency’s action is whether it was made in accordance
with law) (citing Blumenschein v. Pittsburgh Housing Authority, 109 A.2d 331,
334-35 (Pa. 1954)).


             Accordingly, the Board’s order is affirmed with the exception of the
portion of the order conditioning reinstatement of Arowosaye’s license upon
payment in full of her New Jersey restitution.




                                       DAN PELLEGRINI, Senior Judge




                                         10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Emily Jacqueline Arowosaye, R.N.,   :
                       Petitioner   :
                                    :
            v.                      : No. 1410 C.D. 2016
                                    :
Bureau of Professional and          :
Occupational Affairs, State         :
Board of Nursing,                   :
                         Respondent :




                                     ORDER


                AND NOW, this 28th day of March, 2017, the order of the
Department of State, State Board of Nursing, dated August 4, 2016 at No. 0594-
51-14, is affirmed with the exception that the portion of the order stating that
Petitioner Emily Jacqueline Arowosaye’s petition for reinstatement must provide
that her New Jersey restitution has been paid in full is hereby stricken.




                                        DAN PELLEGRINI, Senior Judge
