Funmilola Mary Taiwo, DAB CR5498 (2019)

DECISION

Petitioner, Funmilola Mary Taiwo, is a registered nurse who worked at a nursing home in Queens County, New York. She was charged with endangering the welfare of an incompetent or physically disabled person (a felony), willful violation of health laws (a misdemeanor), and falsifying business records (a felony). She pled guilty to one misdemeanor count of willful violation of health laws and one count of disorderly conduct. After she completed certain conditions of her plea agreement, the criminal court vacated her conviction for willful violation of health laws.

Based on her criminal convictions, the Inspector General (IG) has excluded Petitioner for five years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(2) of the Social Security Act (Act). She appeals the exclusion. For the reasons discussed below, I find that the IG properly excluded Petitioner Taiwo and that the statute mandates a minimum five-year exclusion.

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Background

In a letter dated June 28, 2019, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five years because she had been convicted of a criminal offense related to the neglect or abuse of patients in connection with the delivery of a health care item or service.  The letter explained that section 1128(a)(2) of the Act authorizes the exclusion.  IG Ex. 1. 

Petitioner timely requested review.

Each party submitted a written argument (IG Br.; P. Br.).  The IG submitted six proposed exhibits (IG Exs. 1-6).  With her brief, Petitioner submitted two exhibits (P. Exs. 1-2).  In the absence of any objections, I admit into evidence IG Exs. 1-6 and P. Exs. 1-2.  The IG submitted a reply brief (IG Reply). 

The parties agree that an in-person hearing is not necessary.  IG Br. at 9; P. Br. at 5.

Discussion

Petitioner must be excluded from program participation for a minimum of five years because she was convicted of a criminal offense related to the neglect or abuse of a patient in connection with the delivery of a health care item or service. Act § 1128(a)(2 ).1

Under section 1128(a)(2) 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 neglect or abuse of patients, in connection with the delivery of a health care item or service. . . .”  42 C.F.R. § 1001.101(b).  The “delivery of a health care item or service” includes providing any item or service to an individual to meet his or her physical, mental, or emotional needs or well-being, whether or not reimbursed by Medicare, Medicaid, or any federal health care program.  Id.

Here, Petitioner Taiwo is a registered nurse, who was working as a nursing supervisor at a nursing home located in Queens, New York.  IG Ex. 2.  On the night of October 23, 2014, one of the nursing home’s residents, who suffered from dementia, altered mental status, and a host of serious physical ailments, “emerged from his room, crawling on his back along the floor and bleeding profusely from open wounds to the back of his head and his jaw.”  IG Ex. 2 at 2.  Although physically present, Petitioner Taiwo did not render appropriate care; she did not treat the resident’s wound, “thereby acting in a manner

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likely to be injurious to the physical, mental, or moral welfare” of the resident. IG Ex. 2 at 2.

In an indictment dated May 18, 2016, Petitioner was charged with:

• one felony count of endangering the welfare of an incompetent or physically disabled person, in violation of section 260.25 of the New York Penal Law;
• one misdemeanor count of willful violation of health laws, in violation of sections 12-(b)2 and 2803-d(7) of the New York Public Health Law; and
• one felony count of falsifying business records, in violation of section 175.10 of the New York Penal Law.

IG Ex. 3.

On January 31, 2017, Petitioner pled guilty to the misdemeanor count of willful violation of health laws and to disorderly conduct, a violation of the New York Penal Law. New York Penal Law § 240.20. IG Ex. 4; P. Ex. 1. Her plea was conditioned on: 1) her completing, at her own expense, a twelve-week elder abuse program; and 2) her not providing nursing or home health care to any elderly persons (over 60) for one full year. IG Ex. 4 at 2-5. Her case was “adjourned for sentencing.” So long as she met the conditions of her plea agreement, the misdemeanor would be dismissed and she would pay a $250 fine on the violation. IG Ex. 4 at 8. However, failing to meet the conditions would subject her to a maximum of one year incarceration. IG Ex. 4 at 9.

In pleading guilty, Petitioner Taiwo admitted that

while in the employ of Peninsula Center for Extended Care and Rehabilitation[,] which is a residential health care facility[,] on or about October 23rd and October 24, 2014 . . . [she] willfully violated a provision of the Public Health Law by subjecting . . . a resident of that residential health care facility to an act of negligen[ce] by failing to provide that person with timely, consistent, safe, adequate, and appropriate services, treatment, and care[.]

IG Ex. 4 at 7-8. The court accepted her plea. IG Ex. 4.

One year later, on January 31, 2018, the court determined that Petitioner met the conditions of her plea agreement. The court vacated her earlier plea of violating health laws and imposed a $250 fine on the disorderly conduct charge. IG Ex. 5 at 4; IG Ex. 6.

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Petitioner argues that she was not convicted of a crime within the meaning of section 1128(a)(2) because she her conviction for willful violation of health laws was ultimately vacated, and she was convicted of disorderly conduct instead.  According to Petitioner, disorderly conduct is a “violation” but not a “crime.”  Further, she argues, nothing in that section of the penal law relates to patient neglect or abuse. 

Petitioner’s arguments fail for two independent reasons.  First, for purposes of section 1128, a vacated conviction is nevertheless a conviction.  The statute 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).  The Departmental Appeals Board (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).  Thus, even though it was subsequently vacated, Petitioner’s conviction on the health laws violation, by itself, mandates her exclusion, without regard to the additional disorderly conduct conviction.

Second, with respect to Petitioner’s disorderly conduct conviction, because the violation is defined in the New York Penal Law, I find that the IG reasonably considers the offense a “criminal offense” under section 1128.  See Yamilet Martinez, DAB CR5238 at 2-3 (2019); Marie J. Jeanty, DAB CR4970 at 5 (2017). 

Further, although the disorderly conduct statute does not mention patient neglect or abuse, the facts underlying Petitioner’s conviction establish that it was related to neglect. The Departmental Appeals Board has long rejected efforts to limit section 1128 review to the bare elements of the offense on which the individual was convicted.  See Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000), aff’d Patel v. Thompson, 319 F.3d 1317 (11^th Cir. 2003) (“We thus see nothing in section 1128(a)(2) that requires that the necessary element of the criminal offense must mirror the elements of the exclusion authority, nor that all statutory elements required for an exclusion must be contained in the findings or record of the state criminal court.”); Timothy Wayne Hensley, DAB No. 2044 (2006); Scott D. Augustine, DAB No. 2043 (2006);  Lyle Kai, R. Ph., DAB No. 1979 at 5 (2005), aff’d, Kai v. Leavitt, No. 05-00514 BMK (D. Haw. July 17, 2006) (holding that an offense is “related to” the delivery of a healthcare item or service, if there is “a nexus or common-sense connection” between the conduct giving rise to the offense and the delivery of a healthcare item or service); Berton Siegel, D.O., DAB No 1467 at 5 (1994); Carolyn Westin, DAB No. 1381 (1993), aff’d sub nom. Westin v. Shalala, 845 F. Supp. 1446 (D. Kan. 1994).

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Given Petitioner’s admission in open court, there is no doubt that her disorderly conduct conviction stemmed from her neglecting a very ill nursing home patient.  Thus, Petitioner Taiwo was “convicted” within the meaning of section 1128(a)(2) and she is subject to exclusion.  See Robert C. Hartnett, DAB No. 2740 (2016).

An exclusion brought under section 1128(a)(2) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).

Finally, Petitioner complains that, in 2019, the IG based her five-year exclusion on an October 2014 incident.  Inasmuch as her criminal case was not finally resolved until January 2018, the delay is not quite so egregious as Petitioner suggests.  In any event, I have no authority to change the effective date of an exclusion.  As a matter of law, an exclusion becomes effective 20 days from the date of the IG’s notice.  42 C.F.R. § 1001.2002(b).  An administrative law judge may not review the timing of the IG’s determination to impose an exclusion or alter retroactively its effective date.  Sushil Aniruddh Sheth, M.D., DAB No. 2491 at 18-19 (2012); Kailash C. Singhvi, M.D., DAB No. 2138 at 4-5 (2007); Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Samuel W. Chang, M.D., DAB No. 1198 (1990).

Conclusion

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

• 1. I make this one finding of fact/conclusion of law.