Benetia D. Johnson., DAB CR5359 (2019)

DECISION

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

I. Procedural History

In a December 31, 2018 letter, the IG notified Petitioner that she was being excluded from 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 Nassau County District Court of the State of New York, 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 February 13, 2019, Petitioner timely requested a hearing to dispute the exclusion (Hearing Req.).  Along with the extensive argument presented in the hearing request, Petitioner submitted 9 exhibits (Hearing Req. Exs. 1-9).  On February 21, 2019, I issued an Acknowledgment, Prehearing Order, and Notice of Prehearing Conference (Prehearing Order).  On March 6, 2019, I convened a telephonic prehearing conference,

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the substance of which is summarized in my March 6, 2019 Prehearing Conference Summary Order (Conference Order).

Following the conference, the IG submitted a short-form brief (IG Br.) and 5 proposed exhibits (IG Exs. 1-5).  Petitioner then submitted a short-form brief (P. Br.) along with one exhibit (P. Ex. 1), which was Petitioner’s written direct testimony.  The IG filed a reply brief (IG Reply).

II.  Decision on the Record

Neither the IG nor Petitioner objected to the proposed exhibits.  Therefore, I admit IG Exs. 1-5 and P. Ex. 1 into the record.  Prehearing Order ¶ 11; Conference Order at 2; Civil Remedies Division Procedures (CRDP) § 14(e).  I also admit Hearing Req. Exs. 3, 5-8, because they either relate directly or indirectly to Petitioner’s criminal conviction.  I exclude the other exhibits submitted with the hearing request because they are either duplicative to the IG’s exhibits or are irrelevant to my consideration of the legitimacy of the exclusion in this case.

The IG has no witnesses to present in this case and indicated that a hearing is unnecessary.  IG Br. at 4.  Petitioner also indicated that a hearing was unnecessary, but presented her own written direct testimony and said that a Special Assistant Attorney General who was involved in her criminal case could be a potential witness.  P. Br. at 5‑6.

The IG did not request to cross-examine Petitioner; therefore, there is no need to hold a hearing for that purpose.  Prehearing Order ¶ 10; CRDP § 19(b), (d).  Further, Petitioner neither submitted written direct testimony nor requested a subpoena for the Special Assistant Attorney General Petitioner identified as a potential witness.  Prehearing Order ¶ 9; CRDP §§ 16(b), 19(b).  Therefore, I will not hold a hearing to take that witness’ testimony.  I note, however, that I have admitted Hearing Req. Ex. 3 into the record, which is a recent letter from the Special Assistant Attorney General discussing Petitioner’s plea and cooperation with authorities.  Thus, I 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.

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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. Petitioner pleaded guilty to violating New York Penal Law § 175.05(1) due to falsifying a record regarding 30-minute checks made on a nursing home resident who had fallen and had to go to a hospital.

Petitioner first became a Licensed Practical Nurse (LPN) in 2011.  By 2012, Petitioner was working as an LPN at Woodmere Rehabilitation and Health Care Center (Woodmere).  On June 4, 2012, Petitioner was scheduled to work on the 11:00 p.m. to 7:00 a.m. shift on the 2 South Unit at Woodmere, but Petitioner was transferred to the 4 North Unit during her shift after a resident of Woodmere physically struck her.  Petitioner had never worked at the 4 North Unit before.  When Petitioner arrived at her new assignment, she was briefed about a resident with the initials W.O., who had fallen on June 4, went to the hospital for sutures, and had returned to Woodmere later on June 4.  P. Ex. 1 at 1 ¶¶ 1-5; Hearing Req. Ex. 7 at 3-4.

W.O. had been a resident at Woodmere since at least May 2012.  He “was 50 years old and diagnosed with end-stage renal disease, muscle weakness, coronary artery disease and other diseases and disabilities and was unable to care for himself.”  IG Ex. 4 at 2.  W.O.’s Woodmere resident profile record indicated that W.O. was classified as being at risk for falls.  The records further revealed that “on May 29, 2012 . . . W.O. was found on the floor at Woodmere.”  IG Ex. 4 at 2.  On June 1, 2012, a physician ordered that Woodmere staff monitor W.O. every 30 minutes for seven days.  IG Ex. 4 at 2; P. Ex. 1 at 2 ¶ 6.  Woodmere’s policies and procedures required staff to document its monitoring of W.O. on a “Thirty-Minute Monitoring Record.”  IG Ex. 4 at 2.  On June 4, 2012, W.O. was found on the floor with a laceration to the back of his head.  IG Ex. 4 at 2.

When Petitioner transferred to 4 North Unit for the remainder of her shift in the early morning hours of June 5, 2012, she was not told and did not know that a physician’s order directed Woodmere staff to monitor W.O. every thirty minutes.  At about 6:55 a.m. on June 5, a certified nursing assistant (CNA) found W.O. on the floor of his room.  W.O. was sent to the hospital.  P. Ex. 1 at 2 ¶¶ 6-7; IG Ex. 4 at 2; Hearing Req. Ex. 7 at 4.

On June 7, 2012, the New York Department of Health (NYDOH) sent a surveyor to Woodmere to investigate W.O.’s care.  When the surveyor arrived at Woodmere, he requested the 30-minute record from Woodmere’s Director of Nursing.  IG Ex. 4 at 2.

On June 7, 2012, a registered nurse at Woodmere told Petitioner that she needed to sign monitoring reports for W.O.  Petitioner was told that the 30-minute record sheets had not been in place after W.O. returned from the hospital on June 4.  Petitioner said that the CNA who worked that night should sign the 30-minute record, but apparently the CNA

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refused.  Petitioner was told she could sign it in the CNA’s place and did so.  P. Ex. 1 at 2 ¶¶ 8-9; Hearing Req. Ex. 7 at 4-5.

Woodmere’s Director of Nursing provided the 30-minute monitoring sheets for June 4-5, 2012, to the NYDOH investigator.  IG Ex. 4 at 2.  The NYDOH surveyor twice spoke to Petitioner and asked if Woodmere staff had coached her regarding what to say to investigators about W.O., and both times she told him she had not been.  Hearing Req. Ex. 7 at 5.

Less than a year later, an investigator came to her home regarding the circumstances surrounding W.O. and Petitioner cooperated with the investigator.  Hearing Req. Ex. 7 at 6.

In November 2014, Petitioner entered into a plea agreement with prosecutors that she would plead guilty to a misdemeanor under New York Penal Law § 175.05(1) “in full satisfaction” of a felony charge that would be soon filed against Petitioner “based on her role in the treatment and documentation of treatment of a resident of Woodmere Rehabilitation and Healthcare Center, identified by the initials ‘W.O.’, during the time period from on or about June 1, 2012 to July 10, 2012.”  IG Ex. 5 at 1.

On June 9, 2015, a Special Investigator with the Office of the New York State Attorney General’s Medicaid Fraud Control Unit filed a felony complaint against Petitioner in the District Court of Nassau County, New York.  IG Ex. 4.  The felony complaint alleged a violation of New York Penal Law § 175.10, Falsifying Business Records in the First Degree.  IG Ex. 4 at 1.

On September 21, 2015, Petitioner entered her guilty plea to violating New York Penal Law § 175.05(l).  IG Ex. 2 at 4.  At the District Court hearing, Petitioner admitted that she entered false information on the 30-minute record for W.O. “with intention to make it appear that [Petitioner] had monitored him when [Petitioner] had not done so” and “intended to defraud or fool Woodmere and the State of New York that [Petitioner] monitored W.O. every 30 minutes.”  IG Ex. 2 at 7.  Petitioner also admitted that she falsely told the NYDOH investigator that she had not been coached and that she had been told to enter the false information on the 30-minute record by a registered nurse and the Director of Nursing at Woodmere.  IG Ex. 2 at 8-9.  The District Court accepted Petitioner’s guilty plea.  IG Ex. 2 at 10.

In conformance with her plea agreement, Petitioner testified in January 2017 at a jury trial related to Woodmere’s Director of Nursing, which resulted in the jury convicting the Director of Nursing of the felony of offering a false instrument for filing in violation of New York Penal Code § 175.35.  Hearing Req. Ex. 3 at 2.

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In December 2017, Petitioner was sentenced to three years of probation, which will terminate on November 30, 2020.  IG Ex. 3; Hearing Req. Exs. 3, 5.  Petitioner has been compliant with her probation as of January 2019.  Hearing Req. Ex. 8.

B. 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 violating New York Penal Code § 175.05(1), and a state court accepted that plea and sentenced her to probation.  IG Ex. 2 at 10; IG Ex. 3; IG Ex. 5; P. Ex. 1 at 2 ¶ 11; Hearing Req. Ex. 3.  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 was convicted of a criminal offense.  P. Br. at 1.  Accordingly, for purposes of exclusion, Petitioner was “convicted” of a criminal offense.

Petitioner asserts that she was never charged or convicted with an offense that was related to the abuse or neglect of a patient.  P. Ex. 1 at ¶ 15.  Further, she asserts that she had not been the Woodmere staff member assigned to monitor W.O. and had only “created a false record indicating that I had monitored patient W.O., when I had not done so.”  P. Ex. 1 at ¶¶ 11-14, 16; IG Ex. 2 at 7; P. Br. at 2-4.  Petitioner argues that none of the elements to the offense to which Petitioner pleaded guilty include neglect or abuse, and, as support, Petitioner quotes New York Penal Law § 175.05(1) as:  “[a] person is guilty of falsifying business records in the second degree when, with intent to defraud, he:  1. Makes or causes a false entry in the business records of an enterprise.”  P. Br. at 4.

The question as to whether a conviction is related to 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

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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]’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).

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

As an initial matter, W.O. was a resident in a nursing home who had several significant health conditions that limited his ability to care for himself.  IG Ex. 4 at 2.  Further, he was under the care of a physician, who, in June 2012, ordered checks on W.O. by nursing

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facility staff every 30 minutes.  IG Ex. 4 at 2; P. Ex. 1 at 2 ¶ 6.  There is no doubt, and Petitioner does not dispute, that W.O. 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.  The DAB used the following definition of “neglect” in a previous case involving § 1320a-7(a)(2):

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, a physician ordered W.O. to be checked every 30 minutes.  The physician ordered this on June 1, 2012, following a fall at the end of May 2012.  However, after the fall on June 4, 2012, Petitioner testified that Woodmere forgot to institute the checks after W.O. returned from a brief time at a hospital, resulting in a failure to make those 30-minute checks early on June 5, 2012.  W.O. ultimately fell again on June 5 and Petitioner was involved with sending W.O. to the hospital for a second time.

Such a failure to provide ordered and needed checks to assist a resident of a nursing home who was unable to care for himself meets the definition of neglect adopted by the DAB—that W.O. was not cared for or attended to properly.  Further, W.O.’s falls resulted in an investigation by the NYDOH.

It is significant, as alluded above, that the term “related to,” as used in § 1320a-7(a), simply means that there must be a nexus or common sense connection.  See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F. 3d 813, 820 (D.C. Cir. 2012) (describing the phrase “related to” in another part of section 1320a-7 as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotation marks omitted).  Although Petitioner’s criminal conduct related to false documentation does not directly involve neglect, it has a sufficient common sense connection to the neglect of resident W.O. on June 5, 2012.

I find the DAB’s decision in Carolyn Westin, DAB No. 1381 (1993) shows how broadly the “related to” language in the statute has been interpreted.  In that case, the petitioner was a nursing home administrator who was convicted of a crime involving a failure to report to the state that a resident had been entrapped between the rail and frame of her

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bed, requiring emergency resuscitation and an airlift to the hospital.  While there was no indication that the nursing home administrator actually was involved in the care of the resident, the administrator was excluded for being convicted of failing to report the incident.  Westin, DAB No. 1381.

In upholding the exclusion in Westin, the U.S. District Court made it clear that the crime of failing to report was related to neglect:

there is no requirement that the Secretary demonstrate that actual neglect or abuse of patients occurred, nor is there a requirement that the individual or entity be convicted of an actual offense of patient neglect or abuse.  The phrase “relating to” clearly encompasses a broader range of conduct than actual neglect or abuse.  Westin’s failure to file a report with the Colorado Department of Health or to place a copy of that report in Grundmeier’s medical records related to the neglect of a patient.

Westin, 845 F. Supp. at 1,451.  I find that Petitioner’s intentional act of providing false information on a business record, i.e., a 30-minute record for checks that should have been made on a nursing home resident who fell and injured himself, is of a similar nature to Westin’s offense.  Both Petitioner and Westin were not responsible for W.O.’s injuries, but their convictions were “related to” incidents of neglect.

Finally, § 1320a-7(a)(2) requires that the neglect be in connection with the delivery of a health care item or service.  Petitioner argued that she was not the person who was responsible for making the 30-minute checks on W.O., and was not convicted of failing to make those checks.  However, Westin again shows that Petitioner’s argument is incorrect.

As the Secretary suggests, Westin's conviction was “in connection with the delivery of a health care item or service.” Westin entered a plea of no contest to willfully disregarding a Colorado public health law.  Under that law, Westin, as an administrator of a nursing home, was required to (1) report all accidents and injuries “resulting in possible patient injury” to the Colorado Department of Health; and (2) file a copy of that report in the patient's medical record. The evidence is clear from the record that this conviction for failing to report the accident or incident occurred while Grundmeier was a patient at ACCW, and that the conviction was connected to the medical services ACCW and its employees provided to Grundmeier.

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Westin, 845 F. Supp. at 1,452.  In the present case, Petitioner’s falsification of a patient record was connected to the care that Woodmere was providing to W.O.

By law, a nursing home must “maintain clinical records on all residents, which records include . . . residents’ assessments.”  42 U.S.C. § 1395i-3(b)(6)(C).  Nursing homes also have a statutory duty to be administered in a manner that enables them to use their resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, which includes maintaining clinical records.  42 U.S.C. § 1395i-3(d)(1)(A), (f)(5)(F).  To implement these requirements, the Secretary promulgated a regulation requiring a nursing home to maintain clinical records on each resident in accordance with accepted professional standards and practices that are (i) complete, (ii) accurately documented, (iii) readily accessible, and (iv) systematically organized.  42 C.F.R. § 483.70(i)(1).  The DAB has noted, “documenting a resident’s medical condition and care is a critical nursing function.”  Autumn Ridge Rehab. Ctr., DAB No. 2467 at 20 (2012).

Therefore, Petitioner’s intentional falsification of resident care records is sufficiently connected to the nursing services that W.O. was receiving from Woodmere.

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).