Esohe Agbonkpolor, DAB CR5527 (2020)

DECISION

I affirm the determination of the Inspector General of the United States Department of Health and Human Services (IG) to exclude Petitioner, Esohe Agbonkpolor, for 5 years from participating in Medicare, Medicaid, and all federal health care programs.

I. Procedural History

In a June 28, 2019 letter, the IG notified Petitioner that she was being excluded from participation in Medicare, Medicaid, and all federal health care programs under 42 U.S.C. § 1320a-7(a)(2), for a period of 5 years.  The IG advised Petitioner that the exclusion was based on her conviction in the Supreme Court of the State of New York for Queens County (Supreme Court) 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 August 23, 2019, Petitioner timely requested a hearing to dispute the exclusion.  On September 6, 2019, the Civil Remedies Division (CRD) acknowledged the hearing request, informed the parties I was assigned to hear and decide this case, and indicated that I would hold a prehearing conference.  CRD also issued to the parties my Standing Prehearing Order.  On September 25, 2019, I convened a telephonic prehearing

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conference, the substance of which is summarized in my September 26, 2019 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.

In conformance with the schedule I set for the submission of prehearing exchanges, the IG submitted a brief and 6 proposed exhibits (IG Exs. 1-6). Petitioner then timely submitted a brief (P. Br.), five proposed exhibits (P. Exs. A-E), and an affidavit from Petitioner (P. Aff.). The IG filed a reply brief.

II. Decision on the Record

Neither the IG nor Petitioner objected to any of the proposed exhibits.  Therefore, I admit IG Exs. 1-6 and P. Exs. A-E into the record.  Standing Prehearing Order ¶ 12; CRD Procedures § 14(e); see 42 C.F.R. § 1005.8(c). 

I required the parties to submit written direct testimony for any witness that they wanted to testify in this case and required the parties to file a request if they wanted to cross-examine any witnesses for whom written direct testimony had been submitted.  42 C.F.R. § 1005.16(b); Standing Prehearing Order ¶¶ 10-11; CRD Procedures §§ 16(b), 19(b).  The IG did not offer any witness testimony.  Petitioner submitted written direct testimony for herself; however, the IG did not request to cross-examine Petitioner.  Therefore, I admit P. Aff. into the record.  Further, since there is no need to conduct a hearing to cross-examine Petitioner and both parties thought an in-person hearing was unnecessary, I decide this case based on the written record.  IG Br. at 7; P. Br. at 2; Standing Prehearing Order ¶ 16; CRD Procedures § 19(d).

III. Issue

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

1. In 2002 Petitioner became a certified nursing assistant (CNA) and, in 2010, became a Licensed Practical Nurse (LPN). P. Aff. ¶¶ 3-4.

2. From 2002 to 2014, Petitioner worked for three different nursing homes, including Peninsula Nursing Home (Peninsula) from 2010 to 2014. P. Aff. ¶¶ 3-4.

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3. On October 23, 2014, Petitioner was working as an LPN at Peninsula on a floor where she was the only LPN and there were 40 residents. P. Aff. ¶¶ 5-6.

4. At approximately 11:45 p.m., Petitioner observed a resident, referred to in the record as C.S., lying on the floor “with blood all over his body.” P. Ex. A; see also P. Aff. ¶ 7.

5. An ambulance took the resident to a hospital, the police investigated the matter, Petitioner provided a written statement to Peninsula regarding the incident involving C.S., and Peninsula terminated Petitioner’s employment. P. Ex. A; P. Aff. ¶¶ 7-8.

6. On June 24, 2015, Petitioner was arrested based on the incident with Resident C.S. P. Aff. ¶ 9.

7. A June 24, 2015 felony complaint, filed under oath by a special investigator with the New York Attorney General’s Medicaid Fraud Control Unit, alleged the following facts (IG Ex. 6):

On October 23, 2014 and October 24, 2014, the [Petitioner] was employed as a Licensed Practical Nurse at Peninsula . . . and was a caregiver for “C.S.”, a resident of Peninsula  . . . 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 pm, C.S. fell to the floor in the hallway from a standing position in front of the [Petitioner].  C.S. was wearing only a backless gown, adult diapers, and socks.  C.S. remained on the hallway floor, crawling on his back, untouched and untreated by the [Petitioner] for the following 12 minutes, at which time a separately arrested [CNA] dragged C.S. by his arm along the hallway floor and into his bedroom. 

At about 11:50 pm, C.S., 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 the [Petitioner] was present and observed C.S. but neglected to render care to C.S. as required by the standards of her profession.  Over the next 20 

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minutes, the [Petitioner] was physically present as C.S. lay bleeding on the floor nearby and did not as required render appropriate care, including treating C.S.’s open wounds, thereby acting in a manner likely to be injurious to the physical, mental, or moral welfare of C.S.

8. On May 18, 2016, a grand jury indicted Petitioner.  IG Ex. 3.

9. On January 31, 2017, Petitioner pleaded guilty to Count 3 of the Indictment, i.e., violating New York Public Health Law §§ 12-b(2) and 2803-d(7), which were misdemeanors, and to disorderly conduct, and the Supreme Court accepted that plea.  IG Ex. 2 at 2, 6-10; IG Ex. 3 at 4.

10. By pleading guilty, Petitioner admitted that (IG Ex. 2 at 7-8):

[W]hile in the employ of Peninsula . . . which is a residential health care facility on or about and between October 23rd and October 24, 2014 in Queens County, in the State of New York, [Petitioner] willfully violated a provision of the Public Health Law by subjecting C.S. . . . to an act of negligent [sic] by failing to provide that person with timely, consistent, safe, adequate and appropriate services, treatment and care.

11. The plea arrangement with Petitioner involved two conditions: Petitioner had to complete a 12-week elder abuse program, and Petitioner agreed not to provide health care to elderly persons for a period of a year. In exchange, 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.” IG Ex. 2 at 2-3, 5, 8.

12. If Petitioner failed to meet the plea agreement’s conditions, then Petitioner would be sentenced to incarceration for up to a year. IG Ex. 2 at 5, 9.

13. On January 31, 2018, the Supreme Court held a sentencing hearing for Petitioner and found that Petitioner met the two conditions expressed at her plea hearing. IG Ex. 4 at 2-3; P. Ex. C; see P. Ex. B at 1.

14. Based on Petitioner’s compliance with the conditions of the plea agreement, the Supreme Court vacated Petitioner’s guilty plea, with the exception of the disorderly conduct charge (reduced to a violation), entered a conditional discharge, and imposed a $250 fine. IG Ex. 4 at 3-4; P. Ex. B at 12.

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15. Petitioner’s resulting record shows that Petitioner was convicted of disorderly conduct in violation of New York Penal Law section 240.20, with a conditional discharge and a total fine of $250.00.  IG Ex. 5; P. Ex. B at 12.

VI. Conclusions of Law, and Analysis

My conclusions of law are in bold and italics.

1.    Petitioner was convicted of a state law offense related to neglect 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 § 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).

In the present case, the record is clear that Petitioner pleaded guilty to a willful violation of the health laws under New York Public Health Law §§ 12-b(2) and 2803-d(7) and disorderly conduct under Penal Law § 240.20, and a state court accepted that plea.  IG Ex. 2 at 2, 6-10; IG Ex. 3 at 4; IG Ex. 4 at 3; IG Ex. 5; P. Ex. B at 12.  For exclusion purposes, an individual is “convicted” of a criminal offense “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)(3). 

Petitioner admits that she “entered into a conditional misdemeanor plea arrangement” and that “[u]pon compliance with the conditions, the misdemeanor plea was vacated and the Petitioner was sentenced to a $250.00 fine for the disorderly conduct conviction.”  P. Aff. ¶ 10; P. Br. at 4.  However, Petitioner argues that following her compliance with the conditions of the misdemeanor plea, “Petitioner merely stands convicted of Penal Law § 240.20 which is a “violation” of the law and not a “crime,” not constituting either a felony or misdemeanor.”  P. Br at 12. 

As an initial matter, there is no dispute that Petitioner in fact pleaded guilty to misdemeanor charges and, but for completing two conditions, would still have a criminal record showing that she pleaded guilty to misdemeanor charges.  IG Ex. 2 at 5-10.

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This is sufficient for me to conclude that Petitioner has been convicted for the purposes of exclusion.       

Assuming, however, that Petitioner is correct that the exclusion can only be premised on the final action by the Supreme Court following compliance with the plea conditions, I would still conclude that Petitioner had been convicted of a criminal offense.  Several other administrative law judges in this forum have rejected Petitioner’s argument that conviction of a violation is not a conviction of a criminal offense, and I join them.  Crystal Y. Courtney-Wade, DAB CR5256 at 7 (2019) (“New York law characterizes disorderly conduct as a violation for which imprisonment of up to 15 days may be imposed upon conviction.  Although disorderly conduct is a violation and not a ‘crime’ under New York law, a violation is nevertheless a criminal offense under the criminal code of New York because up to 15 days imprisonment is authorized.”); Marie J. Jeanty, DAB CR4970 at 5 (2017) (“It is difficult to imagine a scenario where an individual, charged via criminal complaint in a criminal court and subject to a conviction from that court upon pleading guilty, would later claim he or she had committed a ‘non-criminal violation.’ It is similarly difficult to imagine Congress did not intend to include exactly this sort of proceeding and outcome as a trigger for exclusion.); Tara Lyn Justin, DAB CR4689 at 3 (2016) (“The offense of which Petitioner was convicted has all of the earmarks of a crime even if the State of New York calls it something else.  She pled guilty to an offense that carries with it the potential of criminal penalties, including imprisonment.  N.Y. Penal Law §§ 240.20; 70.15(4).  ‘Violations’ under New York law are considered ‘offenses.’  In re W., 312 N.Y.S.2d 544, 546 (1970), aff’d sub nom. W. v. D., 28 N.Y.2d 589 (1971).  ‘An offense is in the nature of a crime and the same rules of law and procedure are to be followed as where the defendant is charged with a crime[.] They are tried like misdemeanors . . . and to them, as to offenses, there should be applicable the criminal-law rules of presumption of innocence and necessity of proof of guilt beyond a reasonable doubt.’  People v. Marsh, 260 N.Y.S.2d 893, 896 (1965) (citations and internal quotation marks omitted); People v. Hildebrandt, 308 N.Y. 397 (1955); People v. Gilbert, 12 N.Y.S.2d 632, 635 (1939).  Indeed, the offense to which Petitioner pled guilty is codified as a penal violation under New York Law.  She was charged and her case was docketed in a criminal court.”).   

To the extent that this interpretation is incorrect, and a “violation” is not properly considered a criminal offense, then I conclude that Petitioner is still considered to be convicted of a criminal offense for purposes of exclusion because she entered a deferred adjudication program when she pleaded guilty to misdemeanor offenses only to have those pleas vacated after meeting certain requirements a year later.  42 U.S.C. § 1320a‑7(i)(4).  “In a deferred adjudication . . . if the defendant does not live up to the terms of his agreement, he is not free to set aside his plea or proceed to trial—the court may simply enter a judgment of conviction.  Under those circumstances, the entry of a judgment is a mere formality because the defendant has irrevocably committed himself to a plea of guilty or no contest which cannot be unilaterally withdrawn.”  Travers v.

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Shalala, 20 F.3d 993, 997 (9th Cir. 1994).  In the present case, Petitioner pleaded guilty to misdemeanor offenses and had to meet two conditions or else be subject to a sentence of up to a year of incarceration.  IG Ex. 2 at 5. 

The next question is whether Petitioner’s conviction is related to neglect.  That “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. 1,446, 1,451 (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] 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 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).

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Therefore, I must look to the factual basis of Petitioner’s criminal conduct to determine if it relates to neglect of a patient.

C.S. was a resident in a nursing home who had several significant health conditions that limited his ability to care for himself.  IG Ex. 6.  There is no doubt, and Petitioner does not dispute, that C.S. 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).

Further, Petitioner’s conviction related to neglect of a patient: 

A common definition of “neglect” is “to fail to care for or attend to sufficiently or properly.”  Webster's New World Dictionary, Third College Edition (Simon & Schuster, Inc. 1988).  This would suggest that neglect can be unintentional or accidental, as there is nothing in the definition suggesting that there must be a purposeful or malicious failure to act. 

Janet Wallace, L.P.N., DAB No. 1326 (1992). 

In the present case, the sworn criminal complaint against Petitioner expressly asserted that C.S. emerged from his room, crawling on this back, bleeding profusely from wounds on the back of his head and jaw, but Petitioner “neglected to render care” for 20 minutes  “as C.S. lay bleeding on the floor nearby and did not as required render appropriate care, including treating C.S.’s open wounds.”  IG Ex. 6  at 2.  Petitioner admitted during her guilty plea that she failed “to provide [C.S] with timely, consistent, safe, adequate and appropriate services, treatment and care.”  IG Ex. 2 at 8.  Petitioner’s criminal conduct clearly involved neglect of a patient.    

Finally, § 1320a-7(a)(2) requires that the neglect be in connection with the delivery of a health care item or service.  It is undisputed that C.S. was a resident at a nursing facility because he could not care for himself due to his significant disabilities.  Petitioner admits that she was the nurse assigned to C.S.’s floor.  Petitioner’s failure to provide needed care when C.S. was grievously injured directly implicates a connection to the delivery of health care items or services.      

Although Petitioner attempts to vindicate herself in this proceeding by portraying herself as a nurse who rendered immediate care to C.S. (P. Aff. ¶ 7; P. Ex. A), this is simply not what Petitioner admitted during her guilty plea.  Further, Petitioner asserts that she only pleaded guilty due to cost and time considerations, and would never have pleaded guilty had she known she would be excluded for five years.  P. Aff. ¶¶ 10-11.  However, I cannot entertain collateral attacks on Petitioner’s conviction and cannot revisit the issue as to whether Petitioner is innocent or guilty.  42 C.F.R. § 1001.2007(d).   

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2.    Petitioner must be excluded for the statutory minimum of 5 years. 42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).

3.    I do not have authority to consider Petitioner’s Constitutional arguments and must apply the statutes and regulations implicated by this case.  42 C.F.R. § 1005.4(c)(1).

4.    I do not have the authority to consider whether the IG should be estopped from imposing an exclusion almost two and one-half years after Petitioner pleaded guilty because the statute states that an exclusion will take place as indicated in the regulations and the regulations provide that an exclusion will take effect 20 days after the date on the exclusion notice.  42 U.S.C. § 1320a-7(c)(1); 42 C.F.R. § 1001.2002(b); see also 42 C.F.R. § 1005.4(c)(6). 

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).