Crystal Y. Courtney-Wade, DAB CR5256 (2019)

DECISION

Petitioner, Crystal Y. Courtney-Wade, is excluded from participating in Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)), effective July 19, 2018.  Petitioner’s exclusion, for a minimum period of five years, is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).1

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I.  Background

The Inspector General (IG) for the U.S. Department of Health and Human Services notified Petitioner by letter dated June 29, 2018, that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  IG Exhibit (Ex.) 1 at 1.  The IG cited section 1128(a)(2) of the Act as the basis for Petitioner’s exclusion and stated that the exclusion was based upon her conviction in the Irondequoit Town Court, Monroe County, of the State of New York of a criminal offense related to the neglect or abuse of patients in connection with the delivery of a health care item or service.  IG Ex. 1 at 1.

Petitioner timely requested a hearing on August 30, 2018 (RFH).  The case was assigned to me on September 6, 2018.  On September 25, 2018, I convened a prehearing conference by telephone, the substance of which is recorded in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated September 26, 2018 (Prehearing Order).  The IG filed a motion for summary judgment with a supporting brief (IG Br.) and IG Exhibits 1 through 5 on October 31, 2018.  Petitioner filed her response in opposition to the IG’s motion (P. Br.) with no exhibits on December 24, 2018.  On January 7, 2019, the IG filed a reply brief (IG Reply).  Petitioner did not object to my consideration of IG Exs. 1 through 5 and they are admitted as evidence.

II.  Discussion

A.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights to a hearing by an administrative law judge (ALJ) and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).

Pursuant to section 1128(a)(2) of the Act, the Secretary must exclude from participation in any federal health care program an individual convicted under federal or state law of a criminal offense related to the neglect or abuse of a patient, in connection with the delivery of a health care item or service.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(b).2

Pursuant to section 1128(i) of the Act, an individual is “convicted” of a criminal offense when a judgment of conviction has been entered by a federal, state, or local court whether

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or not an appeal is pending or the record has been expunged; or when there has been a finding of guilt in a federal, state, or local court; or when a plea of guilty or no contest has been accepted in a federal, state, or local court; or when an accused individual enters a first offender program, deferred adjudication program, or other arrangement where a judgment of conviction has been withheld.  Act § 1128(i) (42 U.S.C. § 1320a-7(i)); 42 C.F.R. § 1001.2.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of not less than five years.  42 C.F.R. § 1001.102(a).  Pursuant to 42 C.F.R. § 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years are mitigating factors considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).

The standard of proof is a preponderance of the evidence, and there may be no collateral attack of the conviction that provides the basis of the exclusion.  42 C.F.R. § 1001.2007(c), (d).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.

B.  Issues

The Secretary has by regulation limited my scope of review to two issues:

Whether the IG has a basis for excluding an individual or entity from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the proposed exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).  If the IG imposes the minimum period of exclusion authorized for a mandatory exclusion under section 1128(a)(2) of the Act, then there is no issue of whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(2).  The IG proposes to exclude Petitioner for five years, the minimum authorized period.  Therefore, the length of the proposed exclusion is not at issue in this case.

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

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

1.  Petitioner timely filed her request for hearing, and I have jurisdiction.

There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

2.  Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have a right to participate in the hearing.  42 C.F.R. § 1005.2‑.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and, when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  Surabhan Ratanasen, M.D., DAB No. 1138 (1990); Foderick, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmoving party must show that there are material facts that remain in dispute, and that those facts either affect the proponent’s prima facie case or might establish a defense.  Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 (1997).  It is insufficient for the nonmovant to rely upon mere allegations or denials to defeat the motion and proceed to hearing.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

There are no genuine issues of material fact in dispute in this case.  Petitioner argues that she was not convicted of a criminal offense that triggers mandatory exclusion under section 1128(a)(2) of the Act.  Resolution of the issue involves application of the law to

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facts that are not in dispute.  There is no genuine dispute as to a material fact and I conclude that summary judgment is appropriate.

3.  Petitioner’s exclusion is required by section 1128(a)(2) of the Act.

a.  Facts

The material facts in this case are undisputed.

Petitioner was charged by a misdemeanor complaint dated June 1, 2017, with three violations of New York law:  willful violation of health laws in violation of § 12-b(2) of the New York Public Health Law; endangering the welfare of an incompetent or physically disabled person in the second degree, in violation of § 260.24 of the New York Penal Law; and falsifying business records in the second degree in violation of § 175.05(1) of the New York Penal Law.  The complaint alleged that Petitioner neglected one of her patients in a nursing home by not following the patient’s care plan for transfers using a mechanical lift, which resulted in the injury of the patient when she fell.  The compliant further alleged that Petitioner falsified a business record related to the investigation of the incident.  IG Ex. 2.

A plea and sentencing hearing was convened on August 16, 2017, before Town Justice Valentino.  Counsel for the New York Attorney General (State) offered a July 10, 2017 letter indicating that Petitioner completed a 12-week Stop Elder Abuse and Mistreatment Program (SEAM) (IG Ex. 4) and indicated the State was willing to accept a plea to disorderly conduct or a similar offense.  IG Ex. 3 at 2-3.  Justice Valentino explained to Petitioner that she was being permitted to plead to disorderly conduct because she completed the SEAM program.  Petitioner then pleaded guilty to disorderly conduct and her plea was accepted.  IG Ex. 3 at 3.  Petitioner was sentenced to an unconditional discharge with a $125 surcharge.  IG Ex. 3 at 4.  A certificate of conviction was issued on September 1, 2017, reflecting the conviction on August 16, 2017, of one count of disorderly conduct in violation of New York Penal Law § 240.20.  IG Ex. 5.

b.  Analysis

The IG cites section 1128(a)(2) of the Act as the basis for Petitioner’s mandatory exclusion.  The statute provides:

(a)  MANDATORY EXCLUSION. — The Secretary shall exclude the following individuals and entities from participation in any federal health care program (as defined in section 1128B(f)):

* * * *

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(2)  Conviction relating to patient abuse. — Any 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.

Act § 1128(a)(2).  The plain language of section 1128(a)(2) of the Act requires that the Secretary exclude from participation in Medicare, Medicaid, and all federal health care programs, any individual or entity:  (1) convicted of a criminal offense; (2) where the offense related to neglect or abuse of patients; and (3) where the offense is related to the delivery of a health care item or service.  There is no requirement for a felony conviction.

Petitioner does not deny that she pleaded guilty to disorderly conduct, her plea was accepted, and Justice Valentino found her guilty pursuant to her plea.  IG Exs. 3, 5.  She also does not deny that she was originally charged with misdemeanor counts of willful violation of health laws, endangering the welfare of an incompetent or physically disabled person, and falsifying business records.  IG Ex. 2.  Petitioner does not deny that the State agreed to a guilty plea to disorderly conduct because Petitioner completed the SEAM program.  IG Exs. 3, 4.

Petitioner argues in her request for hearing that she was not convicted of a criminal offense within the meaning of section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)).  Petitioner asserts she pleaded guilty to disorderly conduct, which is a “violation” and not a “crime” under the New York Penal Code.  RFH.  In her opposition to the IG motion for summary judgment, Petitioner argues that there are insufficient facts to show that she was convicted of a criminal offense related to the delivery of items or services as required for exclusion under section 1128(a)(2) of the Act.  P. Br.  Neither argument shows that there is a genuine dispute of material fact that would preclude summary judgment.  Both arguments must be resolved against Petitioner as a matter of law.

There is no dispute that Petitioner pleaded guilty to disorderly conduct, her plea was accepted, and judgment against her was entered.  Therefore, pursuant to section 1128(i)(1), (2), and (3) of the Act, Petitioner was convicted of the offense of disorderly conduct.  Furthermore, disorderly conduct is an offense under New York law even though it is characterized as a violation rather than a misdemeanor or felony.  N.Y. Penal Law § 240.203 provides that disorderly conduct is a violation rather than a misdemeanor or felony.  The statute provides:

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A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
1. He engages in fighting or in violent, tumultuous or threatening behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly or  meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

Under the New York Penal Code, whether a criminal offense is characterized as a violation, a misdemeanor, or a felony is determined based on the sentence that may be imposed upon conviction.  A violation is “an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.”  N.Y. Penal Law § 10.00(3).  A misdemeanor offense is an offense for which more than 15 days but less than one year in prison may be imposed.  N.Y. Penal Law § 10.00(4).  A felony offense is an offense for which a sentence of more than one year in prison may be imposed.  N.Y. Penal Law § 10.00(5).  A “crime” is a misdemeanor or felony under N.Y. Penal Law § 10.00(6).  An “offense” is conduct for which a term of imprisonment or a fine may be imposed.  N.Y. Penal Law § 10.00(1).  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.  I conclude Petitioner’s conviction for disorderly conduct under the laws of the State of New York, was a conviction of a criminal offense, as that term is used in sections 1128(a)(2) and (i) of the Act.

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Petitioner’s second argument is also meritless.  Petitioner argues that there are insufficient facts to show that she was convicted of a criminal offense related to neglect and the delivery of items or service as required for exclusion under section 1128(a)(2) of the Act.  The statute requires Petitioner’s exclusion if she was convicted of a criminal offense related to neglect or abuse of a patient in connection with the delivery of a health care item or service.  I have already determined, as a matter of law, that Petitioner’s conviction of disorderly conduct was a conviction of a criminal offense.  The remaining issues are whether the conviction was related to neglect or abuse of a patient and whether the neglect or abuse was connected to the delivery of a health care item or service.

In deciding this case on summary judgment, I do not attempt to weigh the credibility of the evidence and all inferences are drawn in favor of Petitioner.  Petitioner presented no evidence for me to consider.  I advised the parties in the prehearing order that “a fact alleged in briefing and not specifically denied may be accepted as true for purposes of a motion or cross-motion for summary judgment” and “evidence will be considered admissible and true unless specific objection is made to its admissibility and accuracy.”  Prehearing Order ¶ 8.  Petitioner has not denied or disputed the facts alleged in the criminal complaint admitted as IG Ex. 2.  The undisputed material facts are:  Petitioner was working as a CNA in a nursing facility in New York; she attempted to transfer a patient alone; the patient’s care plan required two people to accomplish a transfer; the patient fell during the transfer; and Petitioner subsequently falsified a document related to the investigation of the incident.  IG Ex. 2 at 1-2.

Section 1128 of the Act does not define either abuse or neglect.  However, definitions of abuse and neglect are established by the regulations applicable to long-term care facilities in 42 C.F.R. pt. 488.  Abuse is “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 488.301.  Neglect is the “failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish or emotional distress.”  Id.  Based on the undisputed facts and drawing all inferences in Petitioner’s favor, I conclude that abuse of a patient is not the issue before me.  However, neglect is at issue based on the definition of neglect in 42 C.F.R. § 488.301.  The undisputed facts underlying the charge of which Petitioner was convicted show that Petitioner failed to follow her patient’s care plan and that amounted to neglect of the patient because the care plan specified necessary care, specifically a two-person assist for transfers, and Petitioner failed to comply with the plan.

I also conclude that Petitioner’s conduct was in connection with the delivery of a health care item or service.  Appellate panels of the Departmental Appeals Board (the Board) have long held that the statutory terms describing an offense do not control whether that offense is “related to” the delivery of a health care item or service under Medicare or a state health care program for purposes of an exclusion pursuant to section 1128(a) of the Act.  E.g., Dewayne Franzen, DAB No. 1165 (1990) (inquiry is whether conviction is

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related to Medicaid fraud, not whether the petitioner was convicted of Medicaid fraud).  Rather, an ALJ must examine whether there is a “common sense connection or nexus between the offense and the delivery of an item or service under the program.”  Scott D. Augustine, DAB No. 2043 at 5‑6 (2006) (citations omitted).  To determine whether there is such a nexus or common-sense connection, “evidence as to the nature of an offense may be considered,” including “facts upon which the conviction was predicated.”  Berton Siegel, D.O., DAB No. 1467 at 6‑7 (1994).  An ALJ may also use extrinsic evidence to “[fill] in the circumstances surrounding the events which formed the basis for the offense of which Petitioner was convicted.”  Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000).  The terms “related to” and “relating to” in section 1128(a) of the Act (42 U.S.C. § 1320a-7) simply mean that there must be a nexus or common sense connection.  Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” 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 quotes omitted); Quayum v. U.S. Dep’t of Health and Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998).

In this case, based on the undisputed facts, I conclude that there is the required nexus between the offense of which Petitioner was convicted and neglect of Petitioner’s patient.  I further conclude that there is the required nexus between the conduct underlying Petitioner’s conviction and the delivery of a health care item or service.  The undisputed facts are that Petitioner neglected her patient by failing to follow the patient’s care plan.  The neglect occurred in a health care facility due to the actions of Petitioner, who was an employee of the health care facility.  I conclude that there is a clear nexus or connection between the offense and the delivery of a health care item or service.  I conclude that Petitioner was convicted of a criminal offense related to neglect of a patient in connection with the delivery of a health care item or service.

Accordingly, I conclude that all elements of section 1128(a)(2) of the Act are met and there is a basis for Petitioner’s exclusion.  Petitioner’s exclusion is required when the elements of section 1128(a)(2) of the Act are satisfied, as they are in this case.

4.  Five years is the minimum authorized period of exclusion pursuant to section 1128(a) of the Act.

5.  Petitioner’s exclusion for five years is not unreasonable as a matter of law.

Congress established five years as the minimum period for exclusions pursuant to section 1128(a) of the Act.  Act § 1128(c)(3)(B).  Pursuant to 42 C.F.R. § 1001.2007(a)(2), when the IG imposes an exclusion pursuant to section 1128(a) of the Act for the statutory minimum period of five years, there is no issue of whether or not the period is unreasonable.  Accordingly, I conclude that Petitioner’s exclusion for a period of five

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years is not unreasonable as a matter of law.  I have no authority to reduce the period of exclusion below the mandatory minimum of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

Exclusion is effective 20 days from the date of the IG’s written notice of exclusion to the affected individual or entity.  42 C.F.R. § 1001.2002(b).

III.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for the minimum statutory period of five years, effective July 19, 2018.

• 1. Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after the period of exclusion expires. Reinstatement is not automatic upon completion of the period of exclusion.
• 2. References are to the revision of the Code of Federal Regulations (C.F.R.) in effect at the time of the IG action, unless otherwise indicated.
• 3. N.Y. Penal Law § 240.20, https://www.nysenate.gov/legislation/laws/PEN/240.20.