Carol A. Timpano, DAB CR5606 (2020)

DECISION

The Inspector General of the U.S. Department of Health and Human Services (the IG) excluded Carol A. Timpano (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for five years based on her conviction of 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 the exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination.

I.  Background and Procedural History

By letter dated October 31, 2019, the IG notified Petitioner that effective 20 days from the date of the letter, she was being excluded 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 the minimum statutory period of five years.  The IG explained she took this action based on Petitioner’s conviction in a New York state court

Page 2

for 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 1.1

Petitioner timely sought review by an Administrative Law Judge (ALJ) (Request for Hearing).  She asserted the IG improperly excluded her because she “was found guilty of a violation, not a crime.”  Request for Hearing at 1.

On January 14, 2020, I held a pre-hearing telephone conference, the substance of which is summarized in my January 17, 2020 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  See 42 C.F.R. § 1005.8.  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 ¶ 6. 

The IG filed a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  Petitioner filed a brief (P. Br.), two supplemental letters, and sixteen proposed exhibits (P. Exs. 1-16).  The IG subsequently filed a reply brief (IG Reply).

II.  Admission of Exhibits and Decision on the Record

In the absence of objections from either party, I admit IG Exs. 1 through 5 and P. Exs. 1 through 16 into the record. 

The parties agree an in-person hearing is not necessary to decide this case.  IG Br. at 11; P. Br. at 2.  However, Petitioner also contends, “[i]n the event that I am not taken off the list, I reserve the right to have” New York State Assistant Attorney General Ralph Tortora, nurses, superiors, her former attorney, and “anyone else whose testimony I deem necessary.”  P. Br. at 3.  But my Summary Order did not permit either party to “reserve the right” to call witnesses.  Instead, Petitioner was obliged to identify proposed witnesses and explain why she believed it necessary for me to hold a hearing to hear their testimony.  Summary Order at ¶ 9.

Petitioner did not provide such an explanation.  And, as I have noted, she indicated she did not believe a hearing to be necessary in this case.  P. Br. at 2.  Her effort to preserve the possibility of proceeding to hearing in the event her exclusion is not lifted is misplaced.  Because both parties agree a hearing is unnecessary, and neither has identified witnesses the other has requested to cross-examine, I find an in-person hearing to be unnecessary.  I issue this decision on the basis of the record before me.  Civ. Remedies Div. P. § 19(d).

Page 3

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 minimum statutory 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 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).2

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, regardless of whether an appeal is pending or whether 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.  Further, 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 20 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).

Page 4

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. §§ 1001.2007(e), 1005.15(b).

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.

There is no dispute that Petitioner timely requested a hearing.  I therefore 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.

Section 1128(a)(2) of the Act mandates exclusion from participation in Medicare, Medicaid, and all federal health care programs 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.

Documentation submitted by the IG demonstrates Petitioner was convicted of a criminal offense.  On March 22, 2018, New York’s Attorney General filed a criminal complaint against Petitioner accusing her of:

1) Endangering the Welfare of an Incompetent or Physically Disabled Person in the First Degree, a Class E Felony, in violation of Penal Law § 260.25; and

2) Wilful3 Violation of Health Laws, in violation of Public Health Law § 12‑b(2), an unclassified misdemeanor. 

IG Ex. 2 at 1 (emphasis in original).  Relevant here, the Complaint specified:

Page 5

On or about September 2, 2015, the defendant [Petitioner], a registered nurse employed by The Grand [Rehabilitation and Nursing at Rome] knowingly acted in a manner likely to be injurious to the physical, mental, or moral welfare of a person who is unable to care for herself because of physical disability, mental disease, or defect; and willfully violated § 2803-d(7) of the Public Health Law and Title 10 of the New York Code of Rules and Regulations § 81.1(c), by failing to provide timely, consistent, safe, adequate and appropriate services, treatment, and/or care to [resident C.P.] . . . .  [Petitioner] failed to advise AmCare Ambulance Service that RESIDENT C.P. . . . had received the wrong medications.  RESIDENT C.P.’s ingestion of the wrong medications contributed to her death.

IG Ex. 2 at 1-2.

On August 28, 2018, a New York state grand jury indicted Petitioner on two counts of Endangering the Welfare of an Incompetent or Physically Disabled Person in the First Degree, in violation of section 260.25 of the N.Y. Penal Law, a Class E Felony; and two counts of Wilful Violation of Health Laws, in violation of section 12‑b(2) of the N.Y. Public Health Law, an unclassified misdemeanor.  IG Exs. 3, 4 at 1. 

On December 17, 2018, Petitioner entered into a plea agreement by which she pleaded guilty to a single amended count of Disorderly Conduct, in violation of section 240.20(7) of the N.Y. Penal Law.  IG Ex. 4 at 2.  This provision of New York’s penal law specifies “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [sh]e creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.”  N.Y. Penal Law § 240.20(7).

In pleading guilty to Disorderly Conduct, Petitioner stated in her signed plea agreement in relevant part:

I hereby agree to enter a plea of guilty in accordance with the terms of the plea offer which has been made to me, having consulted with my attorney, and having been advised of all the rights listed above.

On or about September 2, 2015, I recklessly created a risk of a hazardous condition by not providing adequate care to C.P., a resident of The Grand Rehabilitation and Nursing at Rome.

Page 6

IG Ex. 4 at 3-4. 

On December 17, 2018, a New York state court imposed judgment and sentenced Petitioner to “one year conditional discharge; and fees in the amount of $95.00.”  IG Ex. 5.

Petitioner argues her exclusion is improper because she was not convicted of a criminal offense.  Request for Hearing at 1; P. Br. at 1-2.  She explains she “was found guilty of a violation, not a crime,” Request for Hearing at 1, and contends that “[i]n New York State a disorderly conduct is not a crime.”  P. Br. at 1-2. 

Petitioner’s position is reasonable4 but ultimately incorrect.  For purposes of exclusion, federal law controls the definition of a criminal offense within the meaning of the Act, and is not subject to the vagaries of 50 states’ worth of penal codes.  In defining a conviction for a criminal offense for the purposes of exclusion, Congress did not choose to distinguish between grades or categories of criminal offense, but instead only required a judgment of conviction, a finding of guilt, an entry of a guilty plea or nolo contendere, or participation in an arrangement that would result in withholding of judgment of conviction.  42 U.S.C. § 1320a-7(i); see also Carolyn Westin, DAB No. 1381 (1993) (discussing Congressional intent to broadly define convictions for purposes of exclusion).

Other petitioners have attempted to argue a conviction for a “violation” under New York law is not a criminal offense; this argument has been roundly rejected.  See Yamilet Martinez, DAB CR5238 (2019) (finding that Petitioner’s plea to a disorderly conduct offense in New York required exclusion pursuant to section 1128(a)(2) of the Act); Tara Lyn Justin, DAB CR4689 (2016) (finding a conviction in New York for disorderly conduct constituted a criminal offense and that New York views violations as criminal in nature); Natalie Galbo, R.N., DAB CR4347 (2015) (two disorderly conduct convictions in New York constituted criminal offenses); Eleanor D’Angelo, L.P.N., DAB CR748 (2001) (finding conviction for violation housed under New York Public Health Law a criminal offense conviction, in part because the offense was punishable by imprisonment or fine); Carmencita Alhabsi, DAB CR555 (1998) (finding a conviction in New York for disorderly conduct constitutes a criminal offense within the meaning of the Act). 

The elements of a criminal offense contemplated by Congress are certainly present here.  Petitioner was charged by criminal complaint with felony offenses.  IG Ex. 2.  She pleaded guilty to a lesser charge and acknowledged the possibility of being incarcerated.  IG Ex. 4 at 2.  She waived appeal rights from “judgment of conviction” against her.  Id. at

Page 7

3.  A New York state court thereafter entered judgment against her, accepting her guilty plea and imposing a sentence.  IG Ex. 5. 

Section 1128(i)(3) of the Act provides that an individual has been “convicted” of a criminal offense “when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court.”  42 U.S.C. § 1320a-7(i)(3); see also 42 C.F.R. § 1001.2 (the definition of “convicted” for purposes of exclusion from federal health care programs includes acceptance by a court of a guilty plea).  Accordingly, I must conclude Petitioner was “convicted” of a crime for purposes of exclusion within the meaning of the Act.  

2. Petitioner’s offense of conviction related to neglect or abuse of patients.

Petitioner does not explicitly contest the IG’s assertion that her conviction related to abuse or neglect of a patient within the meaning of section 1128(a)(2) of the Act.  The IG acknowledges that while “the disorderly conduct statute under which Petitioner pled guilty does not, on its face, specifically encompass neglect of a patient, the allegations forming the basis of Petitioner’s guilty plea establish that her conduct clearly relates to neglect.”  IG Br. at 7.  

Certainly, I am not bound to the four corners of Petitioner’s conviction in making this determination.  The conviction that provides the basis for exclusion does not need to explicitly reference patient abuse or neglect; instead, I must look beyond the charge to the facts underlying Petitioner’s conviction to determine whether her offense is related to patient abuse or neglect.  See Bruce Lindberg, D.C., DAB No. 1280 (1991) at 4 (“[E]ven if there is nothing on the face of the counts of which Petitioner was convicted or in related court documents which establishes that section 1128(a)(2) applies, other evidence is certainly admissible to establish this.”).

The Departmental Appeals Board (Board) more recently confirmed the determination of relatedness under section 1128(a)(2) of the Act necessarily requires consideration of underlying court documents to give context to the actual offense of conviction:

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. . . . 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. . . . The Board also looks to the factual allegations underpinning the

Page 8

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 . . . 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). 

Surveying the pleadings that led to Petitioner’s conviction, it is clear her offense related to patient abuse or neglect5 within the meaning of section 1128(a)(2) of the Act.  The initial charges against Petitioner describe her failure to report that a resident had received the wrong medications, which contributed to that resident’s death.  IG Exs. 2-3.  And Petitioner admitted in her plea agreement resolving that charge that she “recklessly creat[ed] a risk of a hazardous condition by not providing adequate care to [a resident]. . . .”  IG Ex. 4 at 2. 

A failure to provide adequate care that recklessly creates a risk of a hazardous condition to a patient surely meets the everyday definition of “neglect.”  Petitioner’s admission that she failed to provide adequate care to a resident, coupled with the more detailed description of her misconduct found in the initial complaint and indictment, clearly establish her offense of conviction related to patient abuse or neglect within the meaning of section 1128(a)(2) of the Act.  

3. Petitioner’s offense of conviction occurred in connection with the delivery of a health care item or service.

The IG argues Petitioner’s offense of conviction took place in connection with the delivery of a health care item or service, because Petitioner’s neglect of a patient occurred while Petitioner was employed as a registered nurse responsible for the care of residents.  IG Br. at 10.  Petitioner does not explicitly argue the offense to which she pleaded guilty was not in connection with the delivery of a healthcare item or service, but she asserts more generally that her conviction does not warrant exclusion.  P. Br. at 3. Relevant here, the plain language of the Act requires exclusion of any individual who has been “convicted, under Federal or State law, of a criminal offense relating to neglect or

Page 9

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).  

Petitioner’s conviction of disorderly conduct, in violation of section 240.20(7) of the N.Y. Penal Law, stems from her failure to report a medication error related to a resident under her care, ultimately contributing to that resident’s death.  IG Ex. 2 at 1-2; IG Ex. 3 at 3-4, 6-7.  This conduct, which ultimately resulted in Petitioner’s conviction for disorderly conduct, occurred while Petitioner was employed as a registered nurse responsible for the care of residents at her employing facility.    

Petitioner’s neglectful conduct took place while delivering a health care service to a patient; I therefore have no difficulty concluding Petitioner’s offense of conviction took place in connection with the delivery of a health care item or service within the meaning of Section 1128(a)(2) of the Act.

4. 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.

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 10b in the official case file maintained in the Departmental Appeals Board’s E-File (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.
• 2. The Secretary has promulgated regulations implementing these provisions of the Act at 42 C.F.R. § 1001.101(b).
• 3. New York’s penal code uses the archaic spelling of “willful.”
• 4. Indeed, Petitioner submitted written statements from several lawyers opining her violation was not a criminal offense.  P. Exs. 1-4.  These practitioners may accurately conclude that New York state would not consider her offense of conviction to be criminal; however, as I explain herein, it is the federal definition of a criminal offense that controls the outcome of this case.
• 5. The terms “abuse” and “neglect” are not defined by section 1128 of the Act.  The Board has observed that where these terms are not defined by statute, they should be given their ordinary meaning within the purpose of the statute.  See Janet Wallace, L.P.N., DAB No. 1326 (1992) at 10 (relying on the common dictionary definition of “neglect” to mean “to fail to care for or attend to sufficiently or properly.”) (citations omitted).