Riadel Ramos Manzano, RN, DAB CR5347 (2019)

DECISION

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

I. Procedural History

In a November 30, 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 January 16, 2019, Petitioner timely requested a hearing to dispute the exclusion (Hearing Req.).  Along with the extensive argument presented in the hearing request, Petitioner submitted 16 exhibits (P. Exs. A-P).  Shortly thereafter, Petitioner submitted a completed document that the Civil Remedies Division calls a short-form brief (P. Br.).  On February 20, 2019, I convened a telephonic prehearing conference, the substance of

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which is summarized in my February 20, 2019 Prehearing Conference Summary Order (Order).  At the conference, I accepted Petitioner’s hearing request and exhibits as Petitioner’s prehearing exchange in order to more expeditiously decide this case. 

Following the conference, the IG submitted a short-form brief (IG Br.) and 4 proposed exhibits (IG Exs. 1-4).  Petitioner then submitted a reply brief (P. Reply Br.) along with two exhibits (P. Exs. Q and R).  Petitioner shortly thereafter submitted amended versions of P. Exs. Q and R.  The IG then filed a reply brief (IG Reply). 

II. Decision on the Record

Petitioner did not object to the IG’s proposed exhibits; therefore, I admit IG Exs. 1-4 into the record.  Order ¶ 11; Civil Remedies Division Procedures (CRDP) § 14(e).

The IG objected to P. Exs. D and F.  The IG argued that P. Ex. D was an unsworn statement from Petitioner and P. Ex. F was an incomplete transcript of the testimony of a New York State Department of Health (NYDOH) investigator/surveyor (surveyor) at Petitioner’s trial, and this posed a danger of unfair prejudice.  Petitioner resubmitted her statement with an affidavit in which she affirmed its contents under penalty of perjury.  P. Ex. Q.  Further, Petitioner submitted what appears to be the entire transcript of the NYDOH surveyor’s testimony at trial.  P. Ex. R.  The IG filed a reply following submission of those documents and had an opportunity to discuss them.  Thus, while I exclude P. Exs. D and F as requested by the IG, I accept P. Amended Exs. Q and R.  Therefore, I admit P. Exs. A-C, E, G-P, and amended Q-R into the record.            

The IG and Petitioner indicated that a hearing to take witness testimony was not necessary.  IG Br. at 8; P. Br. at 2.  Further, the IG did not request to cross-examine Petitioner.  Therefore, I decide this case based on the written record.  Acknowledgment, Prehearing Order, and Notice of Prehearing Conference dated January 23, 2019, ¶¶ 10, 15; CRDP § 19(b), (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. A jury found Petitioner guilty of the felony of submitting to NYDOH a record regarding 30-minute checks made on a nursing home resident that Petitioner knew contained false information, and a court entered a judgment of conviction based on that finding. 

Petitioner first started working as a registered nurse in March 1995.  P. Amended Ex. Q at 4.  During her career, Petitioner “held positions [at long-term care facilities] as a unit manager, facility supervisor, MDS Coordinator, In-Service Director, Assistant Director of Nursing and ultimately Director of Nursing.”  P. Amended Ex. Q at 4.  In 2012, Petitioner was the Director of Nursing for Woodmere Rehabilitation and Health Care Center (Woodmere).  P. Amended Ex. Q at 2.     

In May 2012, Woodmere had a resident with the initials W.O., who “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.  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. 2 at 2; see also P. Amended Ex. R at 48.  On June 1 and 4, 2012, a physician ordered that Woodmere staff monitor W.O. every 30 minutes for seven days.  P. Amended Ex. R at 51-52, 101-102; IG Ex. 2 at 2.  Woodmere’s policies and procedures required staff to document its monitoring of W.O. on a “Thirty-Minute Monitoring Record.”  IG Ex. 2 at 2.-3.  On June 4, 2012 and June 5, 2012, W.O. was found on the floor two more times; W.O. had a laceration to the back of his head due to the June 4 fall and was sent to a hospital on June 5, 2012.  IG Ex. 2 at 2; P. Amended Ex. R at 48-49, 74-75. 

On June 6, 2012, the sister of W.O. filed a complaint with the NYDOH concerning the multiple falls W.O. suffered.  NYDOH sent a surveyor to Woodmere on June 7, 2012, to investigate W.O.’s care.  The surveyor’s inquiry lasted four working days.  The NYDOH eventually concluded that Woodmere had not timely informed staff to monitor W.O. every 30 minutes and that, as a result, Woodmere had placed its residents in immediate jeopardy.  P. Amended Ex. R at 20-21, 93-94, 97. 

When the surveyor arrived at Woodmere on the morning of June 7, 2012, he spoke with Petitioner first.  P. Amended Ex. R at 43.  The surveyor began his inquiry by conducting a medical record review.  P. Amended Ex. R at 45.  Petitioner was the individual who brought the surveyor the records that he requested.  P. Amended Ex. R at 46.  The surveyor specifically requested the 30-minute monitoring record early in the day, and Petitioner personally provided it to the surveyor at 2:40 p.m.  P. Amended Ex. R. at 52-

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53, 56-58, 105.  The 30-minute monitoring form provided to the surveyor was two pages long and included entries for June 4-5, 2012.  P. Amended Ex. R. at 57-58, 67, 72-73.

The surveyor reviewed the 30-minute monitoring record and noticed that, while most of the places for each half hour were signed, there were gaps in the record without a signature.  P. Amended Ex. R. at 66-70.  Further, the surveyor noticed that there was a signature for the 10:30 a.m. to 11:00 a.m. timeframe on June 5, but that W.O. had left Woodmere at 10:20 a.m. for the hospital.  P. Amended Ex. R at 73-75.  The surveyor discussed this issue with one of the nurses responsible for the 30-minute checks and learned that checks had only begun at 4:30 a.m. on June 5, and not on June 4.  P. Amended Ex. R at 78-79.  From this, the surveyor concluded that someone had tampered with the 30-minute monitoring record.  P. Amended Ex. R at 79, 97.

As a result, the surveyor interviewed another Woodmere employee who had apparently signed June 4 entries on the 30-minute monitoring record.  However, that employee stated that she was not working on June 4.  P. Amended Ex. R at 84.  Petitioner later told the surveyor that she was mistaken that the employee had been working on June 4.  P. Amended Ex. R at 86, 91, 123.  Ultimately, the surveyor concluded that Petitioner did not falsify anything on the 30-minute monitoring record.  P. Amended Ex. R at 119.

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. 2.  The felony complaint alleged violations of three provisions of New York Penal Law, including Offering a False Instrument for Filing in the First Degree, Penal Law § 175.35.  IG Ex. 2 at 1. 

In 2016, a Grand Jury in Nassau County, New York State, indicted Petitioner on two offenses, including, as Count 1, Offering a False Instrument for Filing in the First Degree (Penal Law § 175.35).  IG Ex. 3 at 1.  In regard to Count 1, the Grand Jury charged:  

[Petitioner], a registered nurse working as the director of nursing services at Woodmere Rehabilitation and Health Care Center, knowing that it contained false entries and knowing and believing that it would be filed with New York State Department of Health as part of that office’s records, [Petitioner] presented to New York State Department of Health Investigator Surveyor Edward McGarry a Woodmere Rehabilitation and Health Care Center “Thirty Minute Frequent Check” record dated June 4, 2012 to June 5, 2012 for resident W.O., a person whose full name is known to the Grand Jury.

IG Ex. 3 at 2.

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After a trial, on January 25, 2017, a jury found Petitioner guilty of Offering a False Instrument For Filing in the First Degree under New York Penal Law § 175.35.  IG Ex. 4; P. Ex. B; P. Ex. K.      

On August 15, 2017, the court held a sentencing hearing.  The court stated that Petitioner was not responsible for ensuring that W.O. received checks every 30 minutes and implied that the physician who ordered the checks was in fact responsible.  P. Ex. G at 8.  The court summed up Petitioner’s culpability as follows:

The only thing the jury found [Petitioner] guilty of was taking an altered document and giving it knowingly to the Inspector.  They did not find her guilty of altering the document.  They also did not find persuasively that she was involved in the altering of the document, despite the fact that that was other testimony.

P. Ex. G at 8.  The court sentenced Petitioner to three years of conditional discharge.  IG Ex. 4; P. Ex. B; P. Ex. G at 9-10.    

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 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).   

In the present case, the record is clear that a jury found Petitioner guilty of violating New York Penal Code § 175.35, and a state court issued a judgment of conviction.  IG Ex. 4; P. Exs. B, G, K.  For exclusion purposes, an individual is “convicted” of a criminal offense “when there has been a finding of guilt against the individual . . . by a Federal, State, or local court” or when a judgment of conviction has been entered against  an individual by a federal, state or local court, regardless as to whether  there is an appeal pending.  42 U.S.C. § 1320a-7(i)(1), (2).  Petitioner admits that she was convicted of a

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criminal offense.  P. Br. at 1.  Accordingly, for purposes of exclusion, Petitioner was “convicted” of a criminal offense.

Petitioner asserts that she was not convicted for an offense that involved neglect or abuse, and asserts there is no evidence or even allegation of abuse or neglect.  Hearing Req. at 6; P. Br. at 2; P. Reply Br. at 2.

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 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

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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. 2 at 2.  Further, he was under the care of a physician, who, in June 2012, ordered checks on W.O. by nursing facility staff every 30 minutes.  P. Amended Ex. R at 51-52, 101-102; IG Ex. 2 at 2.  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 and June 4, 2012, following a fall at the end of May 2012.  However, the record indicates that Woodmere did not institute 30-minute checks until early in the morning on June 5, 2012, after W.O. suffered another fall on June 4; ultimately W.O. was sent to a hospital.  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 adopted by the DAB that W.O. was not cared for or attended to properly.  According to the testimony of the NYDOH surveyor at the criminal trial, Woodmere’s failure to implement the checks resulted in a determination that immediate jeopardy to resident safety existed. 

Petitioner does not appear to dispute that the failure to perform 30-minute checks could constitute neglect; rather, Petitioner argues that she was not convicted of an offense related to neglect.  Petitioner was, after all, convicted of violating New York Penal Code § 175.35, which states a violation occurs when: 

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knowing that a written instrument contains a false statement or false information, and with intent to defraud the state . . . he or she offers or presents it to a . . . public servant . . . with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become part of the records of such . . . public servant . . . .  

Petitioner asserts such an offense does not relate to neglect. 

The IG disagrees and argues:  “Her offense is linked by a chain of events starting with a physician order for mandatory monitoring and a patient falling, and ending with her providing falsified monitoring records to the investigator.”  IG Br. at 6.

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, knowingly providing a NYDOH surveyor with false documentation related to the monitoring of a resident, may not directly involve neglect, it has a sufficient common sense connection to the neglect of resident W.O. on June 4 and 5, 2012. 

I find the DAB’s decision in Carolyn Westin, DAB No. 1381 (1993), to be sufficiently analogous to this case to conclude that Petitioner’s criminal offense is related to neglect.  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 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.  Id.    

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

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that report in Grundmeier’s medical records related to the neglect of a patient.

Westin, 845 F.Supp. at 1,451.  I find limited distinguishing characteristics between Petitioner’s crime of knowingly providing a document with false information about checks that should have been made on a resident who fell and injured himself to a state surveyor and Westin’s failure to file notice with the state of an incident at her nursing home.  Both Petitioner and Westin held administrative positions and were not caregivers, but their convictions 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 did not render patient care or supervise the provision of medical care, and as a result did not “furnish” services in this matter.  Hearing Req. at 11; P. Reply Br. at 1.  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.

Westin, 845 F.Supp. at 1,452.  In the present case, Petitioner’s obligation to provide requested documentation to the NYDOH surveyor was directly related 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

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(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). 

Petitioner’s knowing submission to a state surveyor of false clinical documentation is sufficiently connected to the nursing services that W.O. was receiving from Woodmere, the facility at which Petitioner was the director of nursing. 

Petitioner also offers the argument that her conviction was due to juror confusion and that Petitioner never knowingly produced a document to NYDOH that had been altered.  Hearing Req. at 2, 6-7; P. Amended Ex. Q.  I am, however, without authority to review the basis for Petitioner’s conviction, and Petitioner may not collaterally attack her conviction in these proceedings.  42 C.F.R. § 1001.2007(d).     

Petitioner also asserts she has appealed the conviction and hopes for reversal.  P. Ex. C; Hearing Req. at 6.  As mentioned above, the statutory definition for “convicted” indicates that an individual is considered convicted even if an appeal is pending.  42 U.S.C. § 1320a-7(i)(1).  Should Petitioner’s conviction be reversed, she could seek reinstatement immediately from the IG.  42 C.F.R. § 1001.3001.     

Finally, Petitioner states that the New York State Office of the Medicaid Inspector General previously excluded Petitioner from New York State Medicaid, but on June 21, 2018, the exclusion decision was reconsidered and overturned.  P. Ex. E.  However, such a decision is not binding on the IG and does not alter my obligation to uphold a mandatory exclusion when all elements have been met, as they have been in this case.

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).