Nancy L. Clark, DAB CR5483 (2019)

DECISION

The Inspector General of the United States Department of Health and Human Services (the IG) excluded Nancy L. Clark (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for five years based on her conviction for a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service.  Petitioner sought review of her exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination.

I. Background and Procedural History

By letter dated March 29, 2019, the IG notified Petitioner that she was being excluded, effective 20 days from the date of the letter, from participation in Medicare, Medicaid, and all federal health programs under section 1128(a)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)) for a minimum statutory period of five years.  The IG explained she took this action based on Petitioner’s conviction in an Ohio state court for a

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criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service.  IG Ex. 1 at 1.1

Petitioner timely requested a hearing before an administrative law judge and I was designated to hear and decide this case.  On May 2, 2019, I held a pre-hearing telephone conference, the substance of which is summarized in my May 6, 2019 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  Among other things, I directed the parties to file pre-hearing submissions articulating their respective arguments and identifying witnesses and documentary evidence in support thereof.  Summary Order at 3. 

The IG filed a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5), while Petitioner filed a brief (P. Br.) and four proposed exhibits (P. Exs. 1-4).  The IG then filed a reply brief (IG Reply) with a sixth proposed exhibit (IG Ex. 6).  In response, Petitioner filed an objection to IG Ex. 6, and renewed its objection to IG Ex. 2 (P. Obj.).  Because of a discrepancy between my Summary Order and the short-form briefs employed by the Civil Remedies Division, I permitted Petitioner an opportunity to submit her direct testimony.  Petitioner filed her direct testimony one day late.  The IG filed a statement thereafter indicating she did not wish to cross-examine Petitioner.

II. Admission of Exhibits and Decision on the Record

The IG does not object to Petitioner’s proposed exhibits; I therefore enter P. Exs. 1 through 4 into the record.  Petitioner’s written direct testimony is admitted into the record as P. Declaration. 

Petitioner does not object to IG Exs. 1, 3, 4, and 5, and I therefore enter them into the record.  Petitioner objects to IG Exs. 2 and 6, arguing IG Ex. 2 is irrelevant because it fails to present a factual basis for her offense of conviction, and that IG Ex. 6, which purports to authenticate IG Ex. 2, is equally irrelevant.  P. Br. at 3; P. Obj.  The IG points out that IG Ex. 2 is sufficiently reliable to be admitted into evidence, even if it is hearsay.  IG Reply at 2-3.  Petitioner’s objections are overruled.  Petitioner concedes hearsay evidence is admissible in these proceedings, P. Br. at 3, and her objections to these exhibits go to their weight, not admissibility.  IG Exs. 2 and 6 are entered into the record 

Petitioner contends an in-person hearing is necessary to allow her to rebut the admissibility of IG Ex. 2 by explaining that “[h]er understanding was that her plea to the amended charge, leading to her misdemeanor conviction, had to do with a time-keeping issue and did not involve patient care.”  P. Br. at 3.  However, I have permitted her to provide that testimony to me in writing and the IG has declined to cross-examine her or

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otherwise object to her testimony.  Accordingly, I find an in-person hearing in this matter unnecessary, and I issue this decision on the basis of the record before me.  Civ. Remedies. Div. P. § 19(d).

III. Issue

Whether the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for the statutory minimum period of five years under 42 U.S.C. § 1320a-7(a)(2).  See 42 C.F.R. § 1001.2007(a)(1).

IV.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an Administrative Law Judge (ALJ) hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2, and the rights of both the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3.  The parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  See 42 C.F.R. § 1005.6(b)(5).

The Secretary must exclude from participation in federal health care programs “[a]ny individual or entity that has been convicted, under Federal or State law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.”  42 U.S.C. § 1320a-7(a)(2); see also 42 C.F.R. § 1001.101(b).

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  The statute does not distinguish between misdemeanor and felony convictions.  The excluded party may not collaterally attack the conviction that provides the basis of the exclusion.  42 C.F.R. § 1001.2007(d).

Section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)) provides that an exclusion imposed under section 1128(a) of the Act (42 U.S.C. § 1320a-7(a)) shall be for a minimum period of five years.  The exclusion is effective twenty days from the date of the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The period of exclusion may be extended based on the presence of specified aggravating factors.  42 C.F.R. § 1001.102(b).  Mitigating factors are considered as a basis for reducing the period of exclusion only if aggravating factors justify an exclusion of longer than five years.  42 C.F.R. § 1001.102(c).

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The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors; the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Summary Order at 4.

V. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis. 

A. Petitioner’s request for hearing was timely, and I have jurisdiction.

Petitioner timely requested a hearing and there is no dispute I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

B. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(2) of the Act.

Exclusion from participation in Medicare, Medicaid, and all federal health care programs is mandated by section 1128(a)(2) of the Act where an individual has been convicted, under federal or state law, of a criminal offense relating to neglect or abuse of patients 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 has established these elements by a preponderance of the evidence.

1. Petitioner was convicted under federal or state law of a criminal offense.

Petitioner concedes she was convicted of a criminal offense within the meaning of the Act.  P. Br. at 1.  I therefore conclude that this element for exclusion under 42 U.S.C. § 1320a-7(a)(2) is met.

2. Petitioner’s offense of conviction related to neglect or abuse of patients in connection with the delivery of a health care item or service. 

Petitioner disputes the IG’s assertion that her criminal conviction related to abuse or neglect of a patient within the meaning of section 1128(a)(2) of the Act.  P. Br. at 2; IG Br. at 4-7.  The term “related to” 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.

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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).  In the context of assessing an excluded individual’s conviction under section 1128(a)(2) of the Act, the Departmental Appeals Board (Board) has applied the common definition of the terms “abuse” and “neglect” to assess whether an excluded individual’s conviction related to abuse or neglect.  Janet Wallace, L.P.N., DAB No. 1326 at 10 (1992), citing Summit Health Ltd., DAB No. 1173 at 8 (1990).

“Neglect” means “to give little attention or respect to” or “to leave undone or unattended to especially through carelessness.”  Neglect, Merriam-Webster Dictionary, available at https://www.merriam-webster.com/dictionary/neglect (last visited Nov. 25, 2019); see also What is Neglect?, Black’s Law Dictionary 2d. Ed., available at https://thelawdictionary.org/neglect/ (last visited Nov. 25, 2019) (defining neglect to mean “Omission; failure to do something that one is bound to do; carelessness.”).

Here, according to an investigation conducted by the Ohio Attorney General’s Office, a resident of the nursing facility (Resident 1) where Petitioner worked as a nurse experienced a medical emergency on May 14, 2016.  IG Ex. 2 at 1.  Petitioner was on duty at the time of the incident, along with a second nurse (Nurse 2).  Id. at 2.  An inexperienced nurse aide (Aide 1) discovered R1 in a state of distressed breathing.  Id.  Aide 1 attempted to administer breathing treatment and find a nurse.  Of the two nurses on duty, however, Nurse 2 was in a bathroom suffering from food poisoning, while Petitioner was absent from the facility.  Id.  Two state surveyors, S1 and S2, arrived and suggested Aide 1 call 911.  Id.  As he did so, Nurse 2 returned and they entered the resident’s room.  Id.  Nurse 2 and Aide 1 repositioned R1 and took his pulse, but Nurse 2 was again overcome with illness and both she and Aide 1 left the room as emergency responders arrived to assist R1.  Id.

Aide 1 reported that Petitioner returned from her break at this time but after being told of the emergency, did not enter R1’s room but instead went directly to a nurse’s station and began making calls.  Id.  S1 reported that she had observed Petitioner from her return from break to the arrival of the emergency responders and never saw Petitioner enter R1’s room.  Id. at 3.  R1 was eventually transported to a hospital and pronounced dead.  Id.  S1 and S2 interviewed Petitioner, who insisted she assessed R1, called 911, and returned to R1’s room prior to the arrival of emergency responders.  Id.  Petitioner provided a written statement to that effect, and also entered a nursing note in R1’s file consistent with her claim.  Id.

As a result, on November 7, 2017, the Ohio Attorney General charged Petitioner by complaint with one count of making a false statement.  IG Ex. 3.  Petitioner entered a plea of no contest on April 20, 2018.  IG Ex. 5.  The Ohio state court entered judgment

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against her, finding she had pleaded no contest to a count of attempted falsification.  IG Ex. 4 at 1.

The IG argues Petitioner’s offense of conviction related to neglect and occurred in connection to the delivery of a health care item or service because Petitioner lied to state surveyors concerning the actions she took in response to R1’s medical emergency, and made a false entry in R1’s medical record to cloak her failure to provide him appropriate care.  IG Br. at 6-7.

Petitioner first objects to the IG’s reliance on the characterization of evidence contained in the prosecution memorandum the IG submitted to show Petitioner’s offense conduct related to neglect or abuse and occurred in connection with the delivery of a health care item or service.  P. Br. at 2.  Petitioner cites the actual complaint and entry of judgment against her to contend her offense of conviction bears no relation to patient abuse or neglect because neither indicated the nature or basis of the charge against her.  Id.  She further asserts under penalty of perjury that she understood the criminal proceedings against her to have been initiated based on a “timekeeping issue [that] did not involve patient care.”  P. Declaration at 2.

I do not find Petitioner’s claim credible.  It is altogether implausible that she believed the state of Ohio brought criminal charges against her simply because of a timekeeping error.  No reasonable person could have concluded the criminal charge against Petitioner related to anything but her attempt to cover up her unexcused absence at work on the day of R1’s death.

Moreover, I am not bound to the four corners of the complaint or the entry of judgment of against Petitioner in assessing whether her offense of conviction related to patient abuse or neglect.  Robert C. Hartnett, DAB No. 2740 at 7 (2016) (“The Board also looks to the factual allegations underpinning the offense with which a petitioner was charged and which form the basis for the requisite conviction.”).  Here, the factual allegations reflected in the Ohio Attorney General’s prosecution memorandum clearly reflect that the falsification charge brought against Petitioner related to her attempt to cover up her failure to provide adequate care to a resident at the facility where she was employed, while she was on duty.

It is true that the prosecution memorandum upon which the IG relies in part to provide a factual basis for this exclusion does not include witness statements or even a report of investigation signed under oath by a law enforcement official.  However, the criminal complaint against Petitioner which resulted in her conviction is submitted under oath by such an individual.  IG Ex. 3.  And, the IG cured any defect in foundation associated with the prosecution memorandum by submitting a declaration from its author, Assistant Attorney General (AAG) Anthony Molnar.  IG Ex. 6.  AAG Molnar asserted under penalty of perjury that the facts outlined in IG Ex. 2 resulted from an investigation

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conducted by the Medicaid Fraud Control Unit of the Ohio Attorney General’s Health Care Fraud Section that led to Petitioner’s conviction on April 20, 2018.  Id.

Petitioner responds that her understanding of the circumstances underlying her offense of conviction and the investigative results proffered by AAG Molnar are equally credible and therefore his assertions fail to make IG Ex. 2 trustworthy.  P. Obj. at 2.  But Petitioner has failed to explain why the sworn declaration of a state prosecutor, who has no stake in the outcome of this proceeding, is not credible.  Her own statement, on the other hand, is not credible for the reasons I have already outlined.  I find AAG Molnar credible and IG Ex. 2 to be sufficiently reliable to provide the underlying basis for Petitioner’s conviction. 

The facts gleaned from the prosecution memorandum make clear Petitioner’s offense of conviction pertained to neglect of a patient.  Aide 1 estimated Petitioner was absent for one and a half to two hours.  IG Ex. 2at 2.  Because R1’s breathing issue occurred during Petitioner’s extended absence, Aide 1, described as “relatively inexperienced,” attempted to provide rescue care to R1 with only the assistance of a phlebotomist, instead of a trained nurse.  Id. 

The common definitions of neglect cited supra at 5 – “to give little attention or respect to,” or “to leave undone or unattended to especially through carelessness” – precisely describe Petitioner’s conduct on May 14, 2016.  Although she was on duty and one of two nurses charged with the care of patients, Petitioner left her post for an extended period of time, during which a resident in her care developed breathing difficulties and ultimately died.  Her attempt to falsify the medical record for that resident, coupled with the false statements she made to surveyors, clearly demonstrate her awareness that she had left her wards unattended in a careless fashion.  I therefore have no difficulty finding Petitioner’s offense of conviction related to neglect of a patient.

Similarly, Petitioner’s criminal conduct occurred while on duty as a nurse in a nursing facility and amounted to an attempt to cover up her failure to provide adequate breathing intervention for R1 because of her extended absence.  I therefore conclude Petitioner’s criminal conduct took place in connection with the delivery of a health care item or service.

3. Petitioner must be excluded for a minimum of five years; the period of exclusion is therefore reasonable as a matter of law.

Because I have concluded that the IG had a reasonable basis to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(2), Petitioner must be excluded for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  The IG has no discretion to impose a lesser period of exclusion, and I may not reduce the period of exclusion below five years.

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VI. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years pursuant to section 1128(a)(2) of the Act (42 U.S.C. § 1320a-7(a)(2)), as of the effective date of exclusion provided in the IG’s initial notice to her.

• 1. Document 5b in the official case file maintained in the DAB E-File system; for clarity and simplicity, whenever possible I will cite to the exhibits attached to the parties’ respective briefs by the exhibit numbers therein, not the document numbers assigned by DAB E-file.