Marie G. Dorsaint, DAB CR5592 (2020)

DECISION

I affirm the determination of the Inspector General of the United States Department of Health and Human Services (IG) to exclude Petitioner, Marie G. Dorsaint, for five years from participating in all federal health care programs.

I.  Procedural History

In an August 30, 2019 notice, the IG informed Petitioner that she was being excluded from participation in all federal health care programs under section 1128(a)(2) of the Social Security Act (42 U.S.C. § 1320a-7(a)(2)) for a period of five years.  The IG stated that the exclusion was due to Petitioner's 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, including any offense that the [IG] concludes entails, or resulted in, neglect or abuse of patients."  IG Ex. 1 at 1.

On October 28, 2019, Petitioner timely requested a hearing to dispute the exclusion.  In her hearing request, Petitioner, through counsel, argued that Petitioner had not been convicted of a criminal offense.  On November 6, 2019, the Civil Remedies Division (CRD) acknowledged the hearing request, informed the parties I was assigned to hear and

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decide this case, and indicated that I would hold a prehearing conference on December 3, 2019.  CRD also issued to the parties my Standing Prehearing Order.

After Petitioner's counsel informed CRD staff that he was unavailable for the prehearing conference, I rescheduled it for December 19, 2019.  Petitioner's counsel did not appear for that conference; therefore, I issued an Order to Show Cause.  Petitioner's counsel responded that he had a family emergency right before the conference and was unable to attend.  I accepted the response and rescheduled the conference for January 15, 2020.

On January 15, 2020, I held a telephonic prehearing conference, the substance of which is summarized in my January 15, 2020 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.  In conformance with the prehearing submission schedule, the IG filed a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  After being granted an extension, Petitioner's counsel timely informed me that Petitioner wanted to rest her case on the arguments advanced in the hearing request.

II.  Decision on the Record

Petitioner did not object to any of the IG's proposed exhibits.  Therefore, I admit IG Exs. 1-5 into the record.  Standing Prehearing Order ¶ 12; CRD Procedures § 14(e); see 42 C.F.R. § 1005.8(c).

I decide this case based on the written record because both parties have suggested this and neither has proposed any witnesses testimony.  IG Br. at 9; Petitioner's April 8, 2020 letter; 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, Conclusions of Law, and Analysis

My conclusions of law are in bold and italics.

1. On December 13, 2018, Petitioner pleaded guilty to violating New York State Penal Code § 240.20(7) based on factual allegations of failing to properly treat and/or inform a registered nurse (RN) that nursing home resident B.B. had

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fallen and complained of pain in her leg.  Later testing at a hospital revealed that B.B. had fractured her leg.  The Nassau County District Court (District Court), State of New York, accepted Petitioner's plea and sentenced Petitioner to conditional discharge that included 150 hours of community service.

On March 21, 2017, an investigator with the New York Attorney General's Medicaid Fraud Control Unit filed a Felony Compaint against Petitioner in the District Court.  IG Ex. 2.  Specifically, the investigator charged Petitioner with a misdemeanor violation of health laws and a felony violation of falsifying business records.  IG Ex. 2 at 1.

The investigator alleged a number of facts in support of the charges.  He stated that B.B. (the Felony Complaint only refers to the resident's initials to safeguard that person's privacy), who was 73 years old at the time, was receiving care at a residential health care facility called Beach Terrace Care Center (Beach Terrace) because B.B. suffered from schizophrenia, bipolar disorder, dementia, a left clavicular fracture, and osteoporosis.  B.B. was prone to falls and Beach Terrace had implemented interventions for this, including a bed alarm.  The investigator asserted, following a review of B.B.'s medical records, that "she was totally dependent upon her caregivers at Beach Terrace for all activities of daily living including mobility, dressing, bathing, toileting and personal hygiene."  IG Ex. 2 at 2.

The investigator further alleged that Beach Terrace records showed that Petitioner was employed by that facility as a licensed practical nurse (LPN) and had been assigned to care for B.B. on the 11:00 p.m. to 7:00 a.m. shift that began on March 26, 2015 and ended on March 27, 2015.  Based on his investigation, the investigator learned that Petitioner was obligated to notify an RN on duty if B.B. fell or was found on the floor, and to document the incident and notify the next shift of it.  IG Ex. 2 at 2.

According to a certified nursing aide (CNA) that the investigator interviewed, the CNA responded to B.B.'s bed alarm at approximately 3:15 a.m. on March 27, 2015, and found B.B. on the floor of her room.  The CNA located Petitioner and they returned to B.B.'s room.  B.B. informed Petitioner that there was something wrong with B.B., and B.B. rubbed her left leg.  Petitioner examined B.B. and told the CNA that there was nothing wrong with B.B., and B.B. was assisted back into bed.  The investigator's review of Beach Terrace's records revealed that Petitioner neither informed an RN nor a physician of the incident and failed to document the fall.  IG Ex. 2 at 2.

The investigator further alleged that, at some point after 7:00 a.m. on March 27, 2015 (i.e., after Petitioner's shift was over), another CNA at Beach Terrace informed an LPN that B.B. was rubbing her leg and looked to be in pain.  The CNA also told the LPN that the CNA from the previous shift said that B.B. had fallen.  The LPN informed an RN, who assessed B.B. and contacted a physician.  Following B.B.'s transfer to a hospital, an

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x-ray showed "a fracture of the left greater trochanter, a fracture of the femur below the ball of the hip."  IG Ex. 2 at 3.

Finally, the investigator recounted a conversation he had with Petitioner in which Petitioner admitted that the statement she drafted on March 27, 2015, related to Beach Terrace's investigation of B.B.'s fall, was false and that she later wrote a second statement in which Petitioner admitted that she was called to B.B.'s room at approximately 3:20 a.m. on March 27 because B.B. was on the floor.  IG Ex. 2 at 3.

On December 13, 2018, Petitioner and the New York State Attorney General's Medicaid Fraud Control Unit entered into a plea agreement in which Petitioner agreed to plead guilty to disorderly conduct in violation of New York State Penal Law § 240.20 "in full satisfaction of all charges now pending against [Petitioner] in Nassau County District Court."  IG Ex. 3 at 3, 5.  In the plea agreement, Petitioner stated that she understood that she "may also be . . . excluded from providing services under the Medicaid and Medicare programs by the Secretary of Health and Human Services."  IG Ex. 3 at 4.

On December 13, 2018, Petitioner appeared in District Court and pleaded guilty to disorderly conduct in violation of New York State Penal Law § 240.20(7), "which is a violation and not a crime, in satisfaction for all three misdemeanors on the docket."  IG Ex. 4 at 1, 5.  The District Court accepted the guilty plea and sentenced Petitioner to conditional discharge, which included 150 hours of community service, which Petitioner had already completed.  IG Ex. 4 at 6-7; IG Ex. 5.

2. 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 42 U.S.C. § 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).

A. Petitioner was convicted of a criminal offense.

In the present case, the record is clear that Petitioner pleaded guilty to violating New York State Penal Law § 240.20(7), a state court accepted that plea, and the state court

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entered a judgment in which Petitioner was sentenced.  IG Exs. 3-5.  For exclusion purposes, an individual is "convicted" of a criminal offense "when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment of conviction or other record relating to criminal conduct has been expunged" or "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)(1), (3).  In this case, both of these events occurred.

Petitioner disputes that she was convicted of a criminal offense.  Although Petitioner concedes that she pleaded guilty to disorderly conduct under the New York Penal Law, Petitioner asserts that New York State law classifies the offense as a "violation" and not a crime.  Hearing Req. at 1.  Petitioner quoted New York Penal Law § 10.00, which defines a "Crime" as a misdemeanor or a felony, but separately defines a "Violation" as "an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed."  Hearing Req. at 2.

The IG argues in opposition that:

[T]he underlying facts here support the conclusion that Petitioner was convicted of a criminal offense, even if it is categorized as a violation.  To decide otherwise, one would be required to ignore:  (1) that the offense to which Petitioner plead [sic] guilty and was convicted is found in New York's Penal Law; (2) that the offense to which Petitioner pled guilty and was convicted carries with it the potential for criminal penalties, including imprisonment; (3) that Petitioner appeared in the "District Court of Nassau County, First District, Criminal Part" upon the filing of a criminal complaint sworn out by a special investigator in the Office of the Attorney General, Medicaid Fraud Control Unit; and (4) that Petitioner subsequently "pled guilty," was sentenced by a "Criminal Court Judge," and the Certificate of Disposition describes charges for which she was convicted.

IG Br. at 5.

I conclude that Petitioner was convicted of a criminal offense for purposes of 42 U.S.C. § 1320a-7.  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.  Crystal Y. Courtney-Wade, DAB No. 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

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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.").  I agree with the analysis in these decisions.  Therefore, for purposes of exclusion, Petitioner was convicted of a criminal offense.

B. Petitioner's criminal offense was related to neglect of a patient.

The question as to whether a conviction is related to abuse or 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 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. 1446, 1451 (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

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[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 and footnote omitted).

The record here shows that there is a common sense connection or a nexus between Petitioner's criminal conviction and neglect of a patient.  Petitioner pleaded guilty to New York State Penal Law § 240.20(7), which states that "[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . creates a hazardous or physically offensive condition by any act which serves no legitimate purpose."  Therefore, Petitioner pleaded guilty to illegitimately creating a hazardous or physically offensive condition in relation to B.B.

As to the facts upon which this plea was predicated, they are recited in the plea agreement and indicate that Petitioner failed to alert an RN to the fact that B.B. had been found on the floor of her room.  Petitioner also did not document the fall or notify staff on the next shift of the fall.  As a result, B.B. did not receive immediate care for a fracture in her leg.  IG Ex. 3 at 3.

These facts in conjunction with the law that Petitioner violated make it abundantly clear that her conduct involved "neglect."  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.

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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).

It was Petitioner's job to take care of B.B., a nursing home resident who was unable to care for herself.  It is not clear why Petitioner chose not to inform an RN of B.B.'s fall, but the reason does not matter.  She failed to ensure that B.B. received proper medical care when B.B. had suffered a serious injury.

C. Petitioner's criminal offense related to neglect was in connection with the delivery of a health care item or service.

Finally, 42 U.S.C. § 1320a-7(a)(2) requires that the neglect be in connection with the delivery of a health care item or service.  The record leaves no doubt that this is the case.  Petitioner's conduct occurred while she was on duty at a nursing facility.  Petitioner was an LPN who was caring for elderly and infirmed individuals, and was responsible for B.B.'s care on the day and at the time of B.B.'s fall.

3. Petitioner must be excluded for the statutory minimum of 5 years.

The mandatory minimum length of an exclusion imposed under 42 U.S.C. § 1320a-7(a) is five 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 five years from participating in Medicare, Medicaid, and all federal health care programs under 42 U.S.C. § 1320a-7(a)(2).