Jimmie Bradley, DAB CR5368 (2019)

DECISION

C.L., a resident at a long term care facility called the Southeast Arkansas Human Development Center (facility), physically attacked Petitioner, Jimmie Bradley, a Resident Care Technician at the facility.  C.L. and Petitioner fought until Petitioner restrained C.L.  Petitioner, with the assistance of another facility employee, continued to restrain C.L. for more than 20 minutes.  Authorities reviewing a video of the altercation became convinced that Petitioner had abused C.L. while restraining him, and charged Petitioner with a felony offense involving abuse.  Petitioner pleaded guilty to a misdemeanor violation of the same abuse statute, and the Inspector General of the United States Department of Health and Human Services (IG) excluded him for five years from participating in Medicare, Medicaid, and all federal health care programs.  Petitioner now denies abusing C.L.  However, the record supports the IG’s exclusion because Petitioner was convicted of a crime related to the abuse of a patient in connection with the delivery of a health care item or service.  Therefore, I affirm the five-year exclusion.  

I. Procedural History

In a February 28, 2019 letter, the IG notified Petitioner that he was being excluded from Medicare, Medicaid, and all federal health care programs under 42 U.S.C. § 1320a-

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7(a)(2), for a period of 5 years.  The IG advised Petitioner that the exclusion was based on his conviction in the Circuit Court of Bradley County, Arkansas, 10th Judicial District, 1st Division, of a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service.  IG Exhibit (Ex.) 1 at 1.

On March 25, 2019, Petitioner timely requested a hearing to dispute the exclusion (Hearing Req.).  On April 2, 2019, I issued an Acknowledgment, Prehearing Order, and Notice of Prehearing Conference (Prehearing Order) in which I provided information concerning prehearing submissions and set a prehearing conference for April 17, 2019. 

On April 11, 2019, Petitioner submitted a completed document that the Civil Remedies Division calls a short-form brief (P. Br.).  In the brief, Petitioner indicated that he wanted several witnesses to testify at a hearing.  P. Br. at 3.  On April 15, 2019, Petitioner submitted statements from two facility employees, apparently taken by the facility within days of the fight between C.L. and Petitioner, who administered medication to C.L. while he was restrained.  I mark the statement signed by April Anderson, LPN as Petitioner Exhibit (P. Ex.) 1 and the statement by Debra Jonio, LPN as P. Ex. 2.        

On April 17, 2019, I held a telephonic prehearing conference, the substance of which I summarized in my April 18, 2019 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.

Following the conference, the IG submitted a short-form brief (IG Br.) and 6 proposed exhibits (IG Exs. 1-6).  Petitioner did not file any additional documents and the IG gave notice that the IG would not file anything further.    

II.  Decision on the Record

Petitioner did not object to the IG’s proposed exhibits.  Therefore, I admit IG Exs. 1-6 into the record.  Prehearing Order ¶ 11; Civil Remedies Division Procedures (CRDP) § 14(e).  

The IG objected to P. Exs. 1 and 2 because those statements only serve the purpose of providing an impermissible collateral attack on Petitioner’s criminal conviction. 42 C.F.R. § 1001.2007(d).  However, I overrule the IG’s objection because the exhibits involve statements from witnesses to the incident taken only days later, and may be relevant in determining if Petitioner’s conviction was related to abuse.  Therefore, I admit P. Exs. 1 and 2. 

The IG objected to the witnesses whom Petitioner listed on his short-form brief.  Again, the IG argued that the sole purpose of the testimony would be to collaterally attack Petitioner’s conviction.  Petitioner did not respond to the objection.

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I sustain the IG’s objection.  The Prehearing Order required the parties to provide written direct testimony for each proposed witness in the form of an affidavit or a declaration made under penalty of perjury.  Prehearing Order ¶ 9; 42 C.F.R. § 1005.16(b); CRDP §§ 16(b), 19(b).  The Prehearing Order stated that if a party could not obtain written direct testimony, then the party must request a subpoena for the witness under 42 C.F.R. § 1005.9.  Prehearing Order ¶ 9.  Further, the Prehearing Order provided notice that “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.”  Prehearing Order ¶ 10.  Petitioner did not comply with the Prehearing Order; therefore, I need not convene a hearing in this matter and decide this case based on the written record.  Prehearing Order ¶ 15; CRDP § 19(d).

III. Issues

Whether the IG had a basis to exclude Petitioner for five years under 42 U.S.C. § 1320a-7(a)(2).        

IV. Jurisdiction

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

V. Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font. 

A. On September 10, 2018, Petitioner pleaded guilty to violating Arkansas Code § 5-28-103 due to causing physical injury on a resident of a long term care facility, and on that same date, an Arkansas circuit court entered judgment against Petitioner and imposed a 90-day suspended sentence.

Petitioner was a Resident Care Technician at the long term care facility where a resident with the initials C.L. lived.  C.L. was 50 years old and had resided at the facility since 2010.  C.L. was diagnosed with a moderate intellectual disability.  IG Ex. 5 at 1-2

On August 25, 2016, C.L. struck Petitioner in the torso. Petitioner retreated, but C.L. pursued him and grabbed Petitioner’s right arm and head, ultimately causing them to fall on a piece of furniture. Petitioner tried to restrain C.L. by sitting on him, but C.L. got loose. Petitioner struggled with C.L. while using the phone. Petitioner eventually pushed C.L. to the floor and restrained C.L. face down. Petitioner may have used his elbow to strike C.L.  Another facility employee arrived and assisted with restraining C.L. Petitioner stood on the back of C.L.’s legs.  Petitioner and the other employee kept C.L.

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face down on the floor for more than 20 minutes, at which point nurses arrived and administered a chemical restraint to C.L. IG Ex. 5 at 2.

According to Debra Jonio, LPN, employees of the facility had called the facility’s clinic about three times because resident C.L. “was acting up.” P. Ex. 2 at 1. Facility personnel contacted a physician and received an order for Haldol and Phenergan. Ms. Jonio obtained the Phenergan, and April Anderson, LPN obtained the Haldol. P. Ex. 2 at 1. When Ms. Jonio and Ms. Anderson arrived with the medication, Petitioner and the other staff member had C.L. physically restrained on the floor, with each holding an arm. Ms. Jonio and Ms. Anderson each administered their respective medications to C.L., which resulted in C.L. becoming calm enough to return to his room. P. Ex. 1 at 1; P. Ex. 2 at 1.

On October 30, 2017, a special agent with the Arkansas Attorney General’s Medicaid Fraud Control Unit signed an Affidavit for Warrant of Arrest for Petitioner. IG Ex. 5. The special agent alleged that her investigation showed:

[Petitioner], a caretaker in a long term care facility, purposely and unnecessarily physically inflicted pain and caused injury to an impaired person as evidenced by video, photographs, and statements. [Petitioner] purposely committed a demeaning act by intimidation to provoke fear of resident. [Petitioner] confined Resident C.L. by restraining him face down on the floor for an extended period of time. These acts were in violation of Ark. Code Ann. § 5-28-103(b)(2), Abuse of an Impaired Person, a Class “D” felony.

IG Ex. 5 at 3.

On November 17, 2017, a Bradley County prosecuting attorney filed an Amended Criminal Information in which Petitioner was charged with the offense identified in the Affidavit for Warrant for Arrest. The Amended Criminal Information alleged that Petitioner “abuse[d] an endanged or impaired adult, C.L . . . by causing physical injury. . . .” IG Ex. 6.

On September 10, 2018, Petitioner pleaded guilty to violating Arkansas Code § 5-28-103(d). IG Ex. 2; see IG Ex. 4. Also on September 10, 2018, the Circuit Court of Bradley County, Arkansas entered judgment against Petitioner and sentenced Petitioner, based on his guilty plea, to a 90-day suspended sentence and a $500 fine.  IG Ex. 3 at 1-2; IG Ex. 4 at 1.

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B. Petitioner was convicted of a state law offense related to abuse of a patient in connection with the delivery of a health care item or service. 42 U.S.C. § 1320a-7(a)(2); 42 C.F.R. § 1001.101(b).

The IG must exclude an individual from participation in all federal health care programs if the individual has been 1) convicted of a criminal offense 2) related to the neglect or abuse of a patient 3) in connection with the delivery of a health care item or service. 42 U.S.C. § 1320a-7(a)(2). For purposes of 42 U.S.C. § 1320a-7(a)(2), the health care item or service need not be one that is paid for by Medicare, Medicaid, or a federal health care program. 42 C.F.R. § 1001.101(b). Further, a patient is “any individual who is receiving health care items or services . . . provided to meet his or her physical, mental, or emotional needs or well-being . . . whether or not reimbursed under Medicare, Medicaid and any other Federal health care program and regardless of the location in which such item or service is provided.”  42 C.F.R. § 1001.2 (definition of Patient).   

1. Petitioner was convicted of a criminal offense.

In the present case, the record is clear that Petitioner pleaded guilty to violating Arkansas Code § 5-28-103(d), Criminal Penalties for Abuse, Neglect, or Exploitation of Endangered or Impaired Person, and a state court issued a judgment in which Petitioner received a 90-day suspended sentence. IG Exs. 2-4. For exclusion purposes, an individual is “convicted” of a criminal 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 . . . by the individual . . . has been accepted by a Federal, State, or local court.” 42 U.S.C. § 1320a-7(i)(1), (3). In this case, both of these events occurred. Accordingly, for purposes of exclusion, Petitioner was “convicted” of a criminal offense.

2. Petitioner’s criminal offense was related to abuse of a patient.

Petitioner argues that he did not abuse C.L. Petitioner asserts that on the day of the incident with C.L., he had entered the unit, but had not been told that C.L. had showed signs of being aggressive. Petitioner stated that C.L. was verbally aggressive and threatening to hurt and kill others. While Petitioner was speaking on a phone, C.L. told Petitioner that C.L. was going to kill him. C.L. then attacked Petitioner and they scuffled. Petitioner denies hitting C.L., but indicates that he physically restrained C.L. Petitioner admits that he walked on top of C.L.’s legs, but says that it was an accident. Petitioner asserts that he was in fear for his life, and only tried to restrain C.L. Petitioner states that C.L. is bigger and taller than Petitioner. Hearing Req. at 1.

Petitioner argues that the facility neither treated C.L. for his aggressiveness that day nor warned Petitioner that C.L. was being aggressive. Petitioner asserts that he merely

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defended himself when attacked. Hearing Req. at 1; P. Br. at 2-3. Petitioner also argues that his altercation with C.L. left no visible injuries or bruises on C.L. P. Br. at 2; P. Ex. 1.

As an initial matter, C.L. was a resident at the facility, a long term care facility, for approximately six years, even though he was only 50 at the time of the incident in question, and had been diagnosed with moderate intellectual disability. IG Ex. 5 at 2. Further, he was under the care of a physician, who ultimately prescribed medications in order to calm C.L. down. P. Exs. 1-2. There is no doubt, and Petitioner does not dispute, that C.L. was a “patient” as that term is defined in 42 C.F.R. § 1001.2 and used in 42 U.S.C. § 1320a-7(a)(2).

The question as to whether a conviction is related to abuse or neglect “is a legal determination to be made by the Secretary [for Health and Human Services] based on the facts underlying the conviction. Further, the offense that is the basis for the exclusion need not be couched in terms of patient abuse or neglect . . . . Since a determination as to whether an offense related to patient abuse or neglect is fact-intensive, we feel it is most appropriate for the []IG to exercise its authority to make such determinations on a case-by-case basis.” 57 Fed. Reg. 3298, 3303 (Jan. 29, 1992); see also Westin v. Shalala, 845 F. Supp. 1446, 1451 (D. Kan. 1994). The Departmental Appeals Board (DAB) described the analysis under § 1320a-7(a)(2) in this way:

Once the first criterion - conviction - is met, as here, the basic question in a section 1128(a)(2) exclusion case is simply whether there is a common sense nexus between the underlying offense and potential or actual harm to the health and well-being of a patient in the course of health care delivery. In essence this is the question the second and third criteria of section 1128(a)(2) seek to answer. It is no different in the context of a section 1128(a)(1) exclusion in which the [DAB] said that, in determining whether the requisite nexus exists, the “labeling of the offense under the state statute” is not determinative.  Berton Siegel, D.O., DAB No. 1467, at 7 (1994) (emphasis in original). We consider, as appropriate, “evidence as to the nature of an offense,” such as the “facts upon which a conviction was predicated.” DAB No. 1467, at 6-7. Thus, how an offense is labeled or classified under state law may very well be a relevant consideration, but it does not, alone, inform the [DAB’s]’s determination of whether or not the requisite nexus exists. The [DAB] also looks to the factual allegations underpinning the offense with which a petitioner was charged and which form the basis for the requisite conviction. It would follow, then, that the fact that

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Petitioner pled guilty only to PHL § 12-b(2), an unclassified misdemeanor, does not mean that we may not or do not examine the record of the criminal proceeding below, of which the Misdemeanor Information is a part, to determine whether there is indeed a nexus between the offense and patient neglect or abuse.

Robert C. Hartnett, DAB No. 2740 at 7 (2016) (emphasis in original) (footnote omitted).

In the present case, the record shows that there is a common sense connection or a nexus between Petitioner’s criminal conviction and abuse of a patient. Petitioner pleaded guilty to the following offense:  “Any person or caregiver who abuses an adult endangered person or an adult impaired person is guilty of a Class B misdemeanor.” Ark. Code Ann. § 5-28-103(d); IG Ex. 2; IG Ex. 4 at 1. Further, the factual basis for the criminal offense shows that it is related to abuse.

Most of the physical altercation between Petitioner and C.L. was recorded. The special agent who investigated the matter described the events on the recording in detail. It involved a fight that C.L. started. Petitioner eventually restrained C.L. on the floor. Much of the description to this point could easily be interpreted as Petitioner defending himself.  However, after Petitioner restrained C.L., the special agent indicates that video shows Petitioner four times raised his elbow and made striking motions at C.L., although the special agents notes that the camera’s view was obstructed. Shortly thereafter, another member of the facility staff assisted Petitioner with restraining C.L. The special agent said that Petitioner looked toward the camera and stood on C.L.’s calves. Finally, the special agent said that Petitioner and the other staff person kept C.L. in an unauthorized face down restraint for an excessive amount of time (more than 20 minutes). The special agent’s investigation showed that while no injuries to C.L. were reported at the time, a later shift at the facility documented that C.L. had a black swollen eye, a bruise behind his ear, and bruises and scratches on other parts of his body. The special agent stated that Petitioner admitted to hitting C.L. with a closed fist, and that C.L. cried and apologized while being restrained on the floor. Finally, the special agent noted that facility supervisory staff said that the restraint used by Petitioner was dangerous because it could have led to positional asphyxia and death. IG Ex. 5 at 2.

Petitioner believes that he merely defended himself. However, I cannot revisit whether Petitioner abused C.L. or simply defended himself. 42 C.F.R. § 1001.2007(d). Petitioner pleaded guilty to the crime of abuse, and the affidavit detailing the reasons for his arrest on charges of abuse provides substantial support that those charges were based on abuse. Even taking into account the statements Petitioner provided (P. Exs. 1-2), the record shows that, more likely than not, Petitioner’s criminal conviction was related to abuse.

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3. Petitioner’s criminal offense related to abuse was in connection with the delivery of a health care item or service.

Finally, 42 U.S.C. § 1320a-7(a)(2) requires that the abuse be in connection with the delivery of a health care item or service. The record leaves no doubt that this is the case. Petitioner’s conduct occurred while he was on duty at the facility. P. Br. at 2-3. Petitioner worked at the facility as a Resident Care Technician. IG Ex. 5 at 1. The facility was a long term care facility that employed licensed practical nurses, who could be authorized by physicians to administer medications to the residents, such as C.L. IG Ex. 5 at 2; see P. Exs. 1-2. C.L. had resided at the facility for years prior to the incident and had been diagnosed with moderate intellectual disability. IG Ex. 5 at 2.

C. Petitioner must be excluded for the statutory minimum of 5 years under 42 U.S.C. § 1320a-7(c)(3)(B).

Because I have concluded that a basis exists to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(2), Petitioner must be excluded for a minimum period of 5 years. 42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).

VI. Conclusion

I affirm the IG’s exclusion of Petitioner for 5 years from participating in Medicare, Medicaid, and all federal health care programs under 42 U.S.C. § 1320a-7(a)(2).