Esohe Agbonkpolor, DAB No. 3002 (2020)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Esohe Agbonkpolor (Petitioner) appeals the February 5, 2020 decision by an Administrative Law Judge (ALJ) affirming the determination of the Inspector General (I.G.) to exclude Petitioner from participating in all federal health care programs for a mandatory period of five years as required under section 1128(a)(2) of the Social Security Act (Act).1  The I.G.’s determination to exclude Petitioner was based on Petitioner’s conviction in the Queens County Supreme Court of the State of New York for a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service.  Esohe Agbonkpolor, DAB CR5527 (2020) (ALJ Decision).    

After carefully considering Petitioner’s arguments, we affirm the ALJ Decision for the reasons discussed below.

Statutory and Regulatory Background

Any individual or entity that has been convicted of a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service must be excluded from participation in any federal health care program.  Act § 1128(a)(2); see also 42 C.F.R. § 1001.101(b).

An individual or entity is considered to have been convicted of a criminal offense when a plea of guilty or nolo contendere by the individual or entity has been accepted by a federal, state, or local court.  Act § 1128(i)(3).

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Five years is the minimum period of exclusion under sections 1128(a)(1) — (a)(4), and this period may not be reduced by an ALJ or the Departmental Appeals Board (Board) on appeal.  Act § 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).

The excluded individual “will be reinstated into Medicare, Medicaid and other Federal health care programs retroactive to the effective date of the exclusion when such exclusion is based on . . . [a] conviction that is reversed or vacated on appeal[.]”  42 C.F.R. § 1001.3005(a)(1).

A person the I.G. has excluded under section 1128(a) of the Act may request a hearing before an ALJ, but only on the issues of:  (1) whether there is a “basis for . . . imposition” of the exclusion; and (where the I.G. proposes a period of exclusion greater than the statutory minimum five years) (2) whether “[t]he length of exclusion [imposed by the I.G.] is unreasonable.”  42 C.F.R. § 1001.2007(a).  A party dissatisfied with an ALJ’s decision may appeal to the Board.  Id. § 1005.21(a). 

Case Background2

Petitioner was a Licensed Practical Nurse (LPN) working for Peninsula Center for Extended Care and Rehabilitation (Peninsula) in Queens, New York, in October 2014 when Petitioner observed a resident on the hall to which she was assigned lying on the floor, with blood all over his body.  ALJ Decision at 3 (quoting P. Ex. A); I.G. Ex. 2, at 7-8.  After an ambulance was called and took the resident to a hospital, police investigated the matter and Petitioner provided a written statement about the incident to Peninsula.  ALJ Decision at 3; P. Ex. A.  Following this incident, Peninsula terminated Petitioner’s employment.  Id.; P. Aff. ¶ 8. 

On June 24, 2015, Petitioner was arrested based on a felony complaint filed by the New York Attorney General’s Medicaid Fraud Control Unit stemming from the October 2014 incident at Peninsula.  ALJ Decision at 3 (citing P. Aff. ¶ 9; I.G. Ex. 6).  The complaint alleged, among other facts, that on October 23 and October 24, 2014, Petitioner:

was a caregiver for [a resident . . .] who was unable to care for himself due to . . . dementia, encephalopathy, hypertension, ataxia, chronic obstructive pulmonary disease, cirrhosis of the liver, end-stage renal disease, and altered mental status. 

On October 23, 2014, at about 11:12 [p.m.], [the resident] fell to the floor in the hallway from a standing position in front of [Petitioner].  [The resident] was wearing only a backless gown, adult diapers, and socks.  [The

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resident] remained on the hallway floor, crawling on his back, untouched and untreated by [Petitioner] for the following 12 minutes, at which time a separately arrested certified nurse aide dragged [the resident] by his arm along the hallway floor and into his bedroom.

At about 11:50 [p.m.], [the resident], exposed and wearing only a backless gown that was pulled up over his unclad waist, 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.  At that time [Petitioner] was present and observed [the resident] but neglected to render care to [the resident] as required by the standards of her profession.  Over the next 20 minutes, [Petitioner] was physically present as [the resident] lay bleeding on the floor nearby and did not as required render appropriate care, including treating [the resident’s] open wounds, thereby acting in a manner likely to be injurious to the physical, mental, or moral welfare of [the resident].

I.G. Ex. 6, at 1-2. 

On May 18, 2016, a New York grand jury indicted Petitioner.  I.G. Ex. 3.  Relevant to this appeal, count 3 of the indictment charged Petitioner with misdemeanor patient neglect in violation of New York Public Health Law §§ 12-b(2) and 2803-d(7).  I.G. Exs. 2, 3. 

During a January 31, 2017 hearing before the Supreme Court of New York for Queens County, Petitioner entered into a negotiated plea arrangement in which the court accepted her guilty plea to count 3 of the indictment, and to disorderly conduct, in exchange for a conditional discharge.  ALJ Decision at 4; I.G. Ex. 2.  Under the plea arrangement, Petitioner’s sentencing would be postponed for one year, during which she was to complete a 12-week elder abuse program, and refrain from furnishing healthcare services to anyone age 60 or older.  Id.  If Petitioner satisfied these conditions, Petitioner would “get a conditional discharge on a violation with a $250 fine.”  ALJ Decision at 4; I.G. Ex. 2 at 8.  Petitioner accepted the plea arrangement and entered, and the court accepted, her guilty plea to count 3.  ALJ Decision at 4; I.G. Ex. 2.

At Petitioner’s sentencing hearing on January 31, 2018 the court found that Petitioner had satisfied the terms for a conditional discharge.  ALJ Decision at 4 (citing I.G. Ex. 4; P. Ex. C; P. Ex. B).  Accordingly, the court vacated Petitioner’s guilty plea to count 3 and imposed a $250 fine for disorderly conduct.  Id.     

By letter dated June 28, 2019, the I.G. notified Petitioner that based on her criminal conviction, she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of five years under section 1128(a)

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(2) of the Act.  I.G. Ex. 1.  Petitioner timely requested an ALJ hearing to challenge the I.G.’s determination.  The I.G. submitted an informal brief along with six evidentiary exhibits.  Petitioner submitted a reply brief, along with five evidentiary exhibits and Petitioner’s written direct testimony in affidavit form.  The I.G. declined to cross-examine Petitioner.  The ALJ found no reason to take live testimony and decided the case on the written record.  ALJ Decision at 2.  This appeal followed.

Standard of Review

The standard of review on a disputed issue of fact is whether the ALJ Decision is supported by substantial evidence in the record as a whole.  42 C.F.R. § 1005.21(h).    The standard of review on a disputed issue of law is whether the ALJ Decision is erroneous.  Id.

Analysis

Exclusion under section 1128(a)(2) requires the Secretary of Health and Human Services to establish:  (1) that an individual has been convicted, under Federal or State law; (2) of a criminal offense relating to neglect or abuse of patients; (3) in connection with the delivery of a health care item or service.  Petitioner makes three main arguments for overturning the ALJ Decision.  First, she argues that the ALJ Decision was not supported by substantial evidence.  P. Br. at 7-9.  Next, Petitioner argues that she was denied her rights to procedural and substantive due process.  Id. at 9-11.  Finally, Petitioner contends that the mandatory five-year period of exclusion is excessive.  Id. at 12.  

The ALJ, however, was correct to uphold Petitioner’s mandatory five-year exclusion where substantial evidence in the record established section 1128(a)(2)’s three criteria were met.  Janet R. Constantino, DAB No. 2666, at 5 (2015) (citing 42 C.F.R. § 1001.2007(a)).  We discuss Petitioner’s arguments below within the context of our analysis of the statutory criteria.

1.    The ALJ’s determination that the I.G. had a basis to exclude Petitioner under section 1128(a)(2) of the Act is supported by substantial evidence in the record and is free from legal error.

Petitioner argues that the ALJ “erroneously found that [Petitioner] was convicted of a crime relating to patient abuse” because “[t]he plea that [Petitioner] entered was later vacated rather than expunged, which is tantamount to the plea never occurring.”  P. Br. at 4.  She contends “the record fails to demonstrate that [Petitioner] actually engaged in any wrongful conduct,” and that the I.G. “merely relied upon the statutory language of a plea taken by [Petitioner] that was later vacated.”  Id.  We disagree.

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a.    Petitioner was convicted of a criminal offense within the meaning of the Act.

For the purpose of exclusion, a person is “convicted” of a criminal offense “when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.”  Act § 1128(i)(4).  The ALJ found that Petitioner testified in her affidavit she had “‘entered into a conditional misdemeanor plea arrangement’ and that ‘upon compliance with the conditions, the misdemeanor plea was vacated and the Petitioner was sentenced to a $250.00 fine’” for disorderly conduct.  ALJ Decision at 5 (quoting P. Aff. ¶ 10; P. Br. at 4).  Under the plea arrangement, Petitioner first entered a plea of guilty to count 3 of the indictment.  I.G. Ex. 2.  The ALJ further determined “Petitioner’s sentencing was ‘put off’ for a year so that if Petitioner fulfilled those conditions, Petitioner ‘would get a conditional discharge on a violation . . . [w]ith a $250 fine.’”  ALJ Decision at 4, (citing I.G. Ex. 2, at 2-3, 5, 8).  The court accepted Petitioner’s guilty plea.  Id. at 5 (citing I.G. Exs. 2-5; P. Ex. B).  One year later, the New York Supreme Court found that Petitioner had met the conditions of her plea arrangement, vacated her guilty plea to count 3 of the indictment, and found her guilty of disorderly conduct, as agreed.  I.G. Ex. 4, at 2-3.  Thus it is undisputed that Petitioner entered into a deferred adjudication program.  The Board has held that, inasmuch as such dispositions involve a defendant who “has irrevocably committed himself to a plea of guilty or no contest which cannot be unilaterally withdrawn,” (Travers v. Shalala, 20 F.3d 993, 997 (9th Cir. 1994)), exclusion may be predicated on deferred adjudications under the Act.  Olandis Moore, DAB No. 2963, at 4-5 (2019) (and cases cited therein).  

Petitioner argues that the “plea that [Petitioner] entered was later vacated rather than expunged, which is tantamount to the plea never occurring.”  P. Br. at 4.  Courts and the Board have rejected this reasoning.  The definition of the term “convicted” is broad, and Congress formulated that definition to serve federal program objectives rather than state criminal justice policies.  Henry L. Gupton, DAB No. 2058,at 7-8 (2007), aff’d, Henry L. Gupton v. Leavitt, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).  Moreover, the court accepted Petitioner’s guilty plea to patient neglect, count 3 of the indictment.  Since the court accepted her plea, patient neglect is the offense of which she was convicted within the meaning of section 1128(i)(3) for purposes of exclusion under section 1128(a)(2) of the Act.  Douglas Schram, R.Ph., DAB No. 1372, at 4-5 (1992).

The petitioner in Janet R. Constantino made arguments similar to those made by Petitioner here.  In Constantino, petitioner argued that her exclusion should be overturned because her plea of nolo contendereis “not tantamount to being ‘convicted’ of a criminal offense”; “the criminal charge to which she entered her no-contest plea did not implicate federal health care programs”; and that “she was denied due process because she received no notice when she entered the plea that it might be used later to exclude her from those programs.”  DAB No. 2666, at 6.

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The Board rejected Constantino’s arguments, reasoning that accepting her claim “would effectively render invalid section 1128(i)’s broad definition of ‘convicted.’”  Id. at 7, citing Henry L. Gupton, DAB No. 2058,at 7-8.  As the Board said in Constantino (quoting 42 C.F.R. § 1005.4(c)(1)), “[n]either the Board nor an ALJ may ‘find invalid or refuse to follow’” section 1128(i) in these circumstances.”  Id. at 10.

Moreover, we reject Petitioner’s suggestion that “vacating” her guilty plea nullifies her “conviction” under the Act.  The regulations provide a path for reinstatement into federal health care programs when an exclusion is based on “a conviction that is reversed or vacated on appeal[.]”  42 C.F.R. § 1001.3005(a)(1).  Neither the Act nor regulations provide the same relief for individuals whose guilty pleas are vacated pursuant to the terms and conditions of a plea deal, however.  The Act’s legislative history provides context here:

With respect to convictions that are ‘expunged,’ the Committee intends to include all instances of conviction which are removed from the criminal record of an individual for any reason other than the vacating of the conviction itself, e.g., a conviction which is vacated on appeal. The Committee wishes to emphasize that, if a conviction is overturned or vacated on appeal, the individual can no longer be excluded from the Medicare and Medicaid programs (unless, of course, he or she has been excluded on grounds independent of such conviction).

H.R. Rep. No. 99-727, at 75 (1986), reprinted in 1986 U.S.C.C.A.N. 3607, 3665; see also the Board’s discussion in Gupton at 7-8 (“In the effort to protect both beneficiaries and funds, Congress could logically conclude that it was better to exclude providers whose involvement in the criminal system raised serious concerns about their integrity and trustworthiness, even if they were not subjected to criminal sanctions for reasons of state policy.”).

Accordingly, Petitioner’s argument that New York State’s disposition of her guilty plea means that she was not convicted for purposes of the exclusion statute is unavailing.  As the Board recently explained –

. . . [W]hile a conviction that has been vacated on appeal (e.g., on the merits) can no longer serve as a basis for exclusion under the statute, the same does not apply to all other instances in which the conviction is removed from the criminal record, as it is the criminal act itself that impugns the integrity and trustworthiness of an individual regardless of any remedial measures taken pursuant to a plea arrangement.  Put another way, exclusion under section 1128(a)(2) is derivative of the conviction as defined by the Act, not the ultimate judgment of conviction imposed by a state or federal court.

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Funmilola Mary Taiwo, DAB No. 2995, at 6 (2020) (finding “no substantive difference” between a “vacated” guilty plea and an “expunged” conviction).3  Petitioner has provided no evidence that her conviction was reversed or vacated on appeal.  To that point, Petitioner expressly agreed to forego any right to appeal her conviction when she entered her guilty plea.  I.G. Ex. 2, at 9 (“You are also going to be executing a waiver of the right to appeal.”).  Therefore, the ALJ was correct that Petitioner was convicted within the meaning of the exclusion statute and thereby was subject to exclusion by the I.G.

b.    Petitioner’s offense involved patient neglect.

The ALJ further determined that Petitioner was convicted, for purposes of exclusion under the Act, of neglect of a patient.  ALJ Decision at 8.  The regulations define a patient as:

any individual who is receiving health care items or services, including any item or service provided to meet his or her physical, mental or emotional needs or well-being (including a resident receiving care in a facility as described in part 483 of this chapter), 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.  Petitioner does not dispute that the resident identified in the New York Attorney General’s Medicaid Fraud Control Unit complaint was a patient as defined in the regulation.  There is no dispute that Petitioner was a nurse working at a nursing facility and was assigned to the hall where this patient lived, due to a series of significant disabilities.  See ALJ Decision at 8.  

As discussed above, the ALJ determined that the trial court had accepted Petitioner’s guilty plea to count 3 of the indictment, which charged Petitioner with patient neglect under the applicable sections of the New York statute.  ALJ Decision at 4, citing I.G. Exs. 2, 3.  However, contrary to Petitioner’s assertion, the ALJ did not limit his analysis to these facts.  Rather, he applied the Board’s reasoning in Robert C. Hartnett, DAB No. 2740 (2016), where the Board opined that “the ‘labeling of the offense under the state statute’ is not determinative” of “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 healthcare delivery.”  Hartnett at 7 (quoting Berton Seigel D.O., DAB No. 1467, at 7 (1994)).

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Whether an offense is related to patient abuse or neglect is a fact-intensive determination to be made by the I.G. 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 ALJ cited extensively I.G. Ex. 6 (the Complaint), quoting verbatim the description of Petitioner twice ignoring a patient suffering conditions including dementia, pulmonary disease, and end-stage renal disease, as he crawled on his back in apparent distress, and again later, while he crawled on his back while bleeding profusely from an open head wound.  ALJ Decision at 3-4.  On the second occasion, Petitioner allowed the patient to go unattended for approximately 20 minutes.  Id.  The ALJ also noted that, during her plea hearing, Petitioner expressly acknowledged that she was pleading guilty to patient neglect because she had failed “to provide [the patient] with timely, consistent, safe, adequate, and appropriate services, treatment and care.”  I.G. Ex. 2, at 8.  Petitioner further acknowledged that she understood that, as a result of her plea arrangement, the criminal case against her was “now over with the same as if [Petitioner] were convicted after trial.”  Id. at 9, 10.  Ultimately, the ALJ correctly determined that Petitioner’s conduct met the definition of “neglect” that the Board articulated in Janet Wallace, L.P.N., DAB No. 1326, at 10 (1992) (A “common definition of ‘neglect’ is ‘to fail to care for or attend to sufficiently or properly.” (citing Webster’s New World Dictionary, Third College Edition (Simon and Schuster, Inc. 1988))), a definition requiring no intent or malice.  See ALJ Decision at 8. 

c.    Petitioner’s offense occurred in connection with the delivery of a health care item or service.

As discussed above, Petitioner was working as a LPN at Peninsula in 2014.  P. Aff. at 2 ¶¶ 4, 6.  She testified that she was “the only LPN working on the floor which housed approximately 40 patients,” for whom she was responsible.  Id.  This, the ALJ determined, along with the fact that the patient was a Peninsula resident due to his many healthcare challenges, and that Petitioner failed to render care, “including treating his open wounds,” (citing I.G. Ex. 6), established a connection to the delivery of healthcare items or services.  ALJ Decision at 8. 

The Board has held that the nature of the criminal offense may establish the required nexus to the delivery of healthcare items or services and that an ALJ may look to the facts underlying the conviction when determining whether the nexus exists.  Here, the evidence in the administrative record supports the ALJ’s determination.  Petitioner was a caregiver at a nursing and rehabilitation facility and neglected a patient.  The ALJ did not err in finding a nexus between Petitioner’s criminal conduct and the delivery of a healthcare item or service and thus the ALJ did not err when he concluded that the I.G. therefore had a basis for the exclusion determination.

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2.    The Board has no authority to decide the Constitutional issues Petitioner has raised.

Petitioner claims she was denied her constitutional right to procedural and substantive due process because the exclusion statute is overbroad to accomplish the Government’s interest, because exclusion infringes on her liberty and property interest, and because she was not informed of the potential for exclusion.  P. Br. at 9-12.  The regulations governing appeals of exclusion determinations expressly preclude the ALJ (and hence the Board in its review of the ALJ Decision) from finding “invalid or refusing to follow Federal statutes or regulations.”  W. Scott Harkonen, M.D., DAB No. 2485, at 22 (2012), aff’d, Harkonen v. Sebelius, No. C 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013). Therefore, we have no authority to decide Petitioner’s constitutional challenges.   See Aiman M. Hamdan, M.D., DAB No. 2955, at 9 (2019). 

Furthermore, federal courts and the Board have repeatedly rejected constitutional challenges to the Secretary’s section 1128 exclusion authority.  Hamdan at 9 (citing, e.g., Manocchio v. Kusserow, 961 F.2d 1539, 1542-1543 (11th Cir. (1992) (holding double jeopardy clause did not apply to physician’s exclusion because exclusions are remedial, not punitive); Greene v. Sullivan, 731 F. Supp. 838, 840 (E.D. Tenn. 1990) (rejecting excluded pharmacist’s double jeopardy and due process arguments); Parrino v. Price, 869 F.3d 392, 397-98 (6th Cir. 2017) (excluded pharmacist had no protected property or liberty interest in continuing to participate in federal health care programs); Erickson v. United States ex rel. Dep’t of Health & Human Servs., 67 F.3d 858, 862-63 (9th Cir. 1995) (excluded health care providers had no protected property interest in continuing to participate in the Medicare program and received adequate due process)).  As in Harkonen, Petitioner’s contention here that the exclusion statute is unconstitutional because it is overbroad to accomplish the Government’s purpose “constitute[s] an attack upon the Act and regulations on which neither the ALJ nor the Board may rule.”  Harkonen, DAB No. 2458, at 22.

Petitioner also argues that the mandatory five-year exclusion period is excessive and violates the 8th Amendment to the Constitution.  P. Br. at 12-13.  Neither the Board nor the ALJ has authority to address the constitutional issue Petitioner’s argument raises.  The issue before us – one that we (and the ALJ) do have authority to address – is whether there is a basis for imposing the exclusion.  42 C.F.R. § 1001.2007(a); Constantino at 2; see also Taiwo at 11.  As we have explained, the regulations governing appeals of exclusion determinations expressly preclude the ALJ and the Board from finding invalid or refusing to follow federal statutes or regulations.  See Harkonen at 22.  Moreover, where, as here, the statutory basis for exclusion is section 1128(a), a mandatory exclusion law, the ALJ was required to uphold the statutory minimum five-year duration of the exclusion and the period of exclusion is reasonable as a matter of law.  See Mark K. Mileski, DAB No. 1945, at 8 (2004), aff’d, Mileski v. Leavitt, Civ. No. 04-00403 RAS-DDB (E.D. Tex. Jun. 3, 2005).  We must do so as well.

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Conclusion

For the reasons discussed above, we affirm the ALJ Decision.

• 1. The current version of the Act can be found at https://www.ssa.gov/OP_Home/ssact/ssact-toc.htm.  (Last visited June 2, 2020.)  Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section.  Also, a cross-reference table for the Act and the United States Code can be found at https://www.ssa.gov/OP_Home/comp2/G-APP-H.html.  (Last visited June 2, 2020.)
• 2. Background information is drawn from the ALJ Decision and the record before the ALJ and is not intended to substitute for his findings.
• 3. Funmilola Mary Taiwo was working with Petitioner at Peninsula on October 23 and 24, 2014, and was indicted with Petitioner.  The court conducted their plea and sentencing hearings together and disposed of their cases through the same process of deferred adjudication.  See, e.g., I.G. Ex. 2.