Sanique D. Clarke, DAB CR5544 (2020)

DECISION

Petitioner, Sanique D. Clarke, was a certified nursing aide 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) and willful violation of health laws (a misdemeanor).  She ultimately pled guilty to one count of disorderly conduct.  Based on her conviction, 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).  Petitioner appeals the exclusion. 

For the reasons discussed below, I find that the IG properly excluded Petitioner Clarke and that the statute mandates a minimum five-year exclusion. 

Background

In a letter dated July 31, 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

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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 four proposed exhibits (IG Exs. 1-4).  With her brief, Petitioner submitted one exhibit (P. Ex. 1). In the absence of any objections, I admit into evidence IG Exs. 1-4 and P. Ex. 1.1

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 ).2

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 it is reimbursed by Medicare, Medicaid, or any federal health care program.  Id.

Here, Petitioner Clarke was working as a certified nursing aide at a nursing home located in Queens, New York.  IG Ex. 2 at 4; IG Ex. 3.  On the night of April 22, 2016, she was assigned to care for a seriously impaired resident.  The resident’s care plan required a two-person assist and mechanical lift in order to transfer or shower the resident.  Disregarding the care plan, Petitioner attempted to transfer and shower the resident without assistance; the resident fell and fractured a thigh bone.  IG Ex. 2 at 4; IG Ex. 3; P. Ex. 1 at 3. 

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In a felony complaint dated February 7, 2017, 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 Code; and
• 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.

IG Ex. 3; P. Ex. 1 at 3.

On September 18, 2017, Petitioner pled guilty to disorderly conduct, a violation of the New York Penal Code.  New York Penal Law § 240.20; IG Ex. 4; P. Ex. 1 at 3.  Her plea was conditioned on:  1) her cooperating with the state’s Medicaid Fraud Control Unit to make a video detailing the allegations against her, apparently for the state agency’s use in nursing home training; and 2) her not working for any entity enrolled in a government-funded healthcare program, including Medicare and Medicaid; and her not enrolling in any of these programs.  IG Ex. 2 at 1, 3; P. Ex. 1 at 4.  She was ordered to pay surcharge fees of $95 and $25.  So long as she met the conditions of her plea agreement, the charges would be dismissed after a year.  IG Ex. 4.  However, failing to meet the conditions would subject her to a maximum of 15 days’ imprisonment.  IG Ex. 2 at 1.

The court accepted her guilty plea.  IG Ex. 4.

Petitioner nevertheless argues that she was not convicted of a crime within the meaning of section 1128(a)(2) because disorderly conduct is a “violation” but not a “crime.”  In fact, the violation is defined in the New York penal code, and it carries a potential jail term (albeit a relatively short one).  When she entered her plea agreement, Petitioner acknowledged that she was entitled to the same protections as any criminal defendant (right to counsel; right to a speedy trial by judge or jury; right to confront the witnesses against her; right to remain silent; appeal rights).  IG Ex. 2.  Because a violation carries with it all of the indicia of any criminal charge, my colleagues have unfailingly agreed that the IG reasonably considers the offense a “criminal offense” under section 1128.  See Esohe Agbonkpolor, DAB CR5527 (2020); Funmilola Mary Taiwo, DAB No. CR5498 (2019); Crystal Courtney-Wade, DAB CR5256 (2019); Yamilet Martinez, DAB CR5238 at 2-3 (2019); Marie J. Jeanty, DAB CR4970 at 5 (2017); Tara Lyn Justin, DAB CR4689 (2016).

Petitioner also argues that her conviction was ultimately vacated and characterizes the proceeding as a “deferred prosecution” rather than a “deferred adjudication.”  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.  Here, Petitioner entered into a plea agreement and the court entered judgment against her.  IG Exs. 2, 4.  She was

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required to pay a fine and meet other conditions.  Only after all the conditions were satisfied was she able to have her conviction vacated.  Had she violated its terms, she’d have been subject to “any legal sentence” the court chose to impose, without further prosecution.  IG Ex. 2 at 1.  She was thus convicted and her conviction was subsequently vacated.

For purposes of section 1128, a vacated conviction is nevertheless a conviction.  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.  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 also suggests that her crime was not related to the delivery of an item or service under Medicare, Medicaid, or any federal healthcare program.  P. Ex. 1 at 8-9; P. Br. at 4-5.

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 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 sub nom. Patel v. Thompson, 319 F.3d 1317 (11th 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 sub nom. 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).

At the time she entered her guilty plea, Petitioner Clarke admitted that, in caring for a seriously disabled nursing home resident, she disregarded his care plan and attempted to shower him without the assistance of a second caregiver and without using the required lift.  As a result, he fell to the floor and fractured his thigh bone.  IG Ex. 2 at 4.  Her admissions remove all doubt that her disorderly conduct conviction stemmed from her neglecting a seriously impaired nursing home patient.

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For these reasons, Petitioner Clarke was “convicted” within the meaning of section 1128(a)(2) and she is subject to exclusion.  See Robert C. Hartnett, DAB No. 2740 (2016).

Petitioner also raises some Constitutional claims, which I have no authority to review.  P. Br. at 5-7; Donna Rogers, DAB No. 2381 at 5 (2011); Susan Malady, DAB No. 1816 (2001); see 42 C.F.R. § 1005.4(c)(1).

Finally, 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).

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. P. Ex. 1 consists of a second written argument with six attachments, marked Exhibits A through F (P. Ex. A-F).
• 2. I make this one finding of fact/conclusion of law.