Shelia Ann Reed, DAB CR5983 (2021)

DECISION

The Inspector General (IG) of the U.S. Department of Health and Human Services excluded Petitioner Shelia Ann Reed from participation in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)).  Petitioner challenges the exclusion.  For the reasons stated below, it is concluded that the IG had a basis for excluding Petitioner from program participation, and that the five-year mandatory exclusion period must be imposed.  The IG's exclusion determination is affirmed.

I.  Background and Procedural History

By letter dated December 31, 2020, the IG notified Petitioner that she was being excluded from Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(2) of the Act.  The IG explained that Petitioner was excluded based on:

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[Petitioner's] conviction as defined in section 1128(i) (42 U.S.C. 1320a-7(i)), in the Circuit Court of the Second Judicial Circuit, in and for Franklin County, State of Florida, 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 Office of Inspector General (OIG) concludes entailed, or resulted in, neglect or abuse of patients (the delivery of a health care item or service includes the provision of any item or service to an individual to meet his or her physical, mental, or emotional needs or well-being, whether or not reimbursed under Medicare, Medicaid, or any Federal health care program).

IG Ex. 1 at 1.

On February 24, 2021, Petitioner requested a hearing pursuant to 42 C.F.R. § 1005.2(c).  Administrative Law Judge Bill Thomas held a prehearing conference on March 17, 2021.  On the same date, Judge Thomas issued an Order Summarizing Prehearing Conference and Setting Briefing Schedule (Prehearing Order).  The case was transferred to the undersigned on April 13, 2021.  For the purposes of this case, I adopt Judge Thomas' March 17, 2021 Prehearing Order.

The IG filed her prehearing exchange on April 12, 2021, including a short form brief (IG Br.) and seven proposed exhibits (IG Exs. 1-7).

On May 28, 2021, Petitioner filed her prehearing exchange, which included a short-form brief (P. Br.) and 11 proposed exhibits (P. Exs. 1-11).  Petitioner also filed, as a separate document (P. Objs.), objections to IG Exs. 2, 3, and 4, a request to strike any portions of the IG's brief that were based on those exhibits, and a conditional request to cross-examine individuals included in the arrest report, including Investigator Dawn Pinkerton Marple and both daughters of the patient (C.A.), Courtney Shivers, LPN, and Tabitha Ray, DON.

On June 10, 2021, the IG filed a reply brief (IG Reply), which included objections to P. Exs. 3, 4, 5, and 11, and an objection to Petitioner's request to cross-examine the individuals referenced in IG Ex. 2.  On July 6, 2021, Petitioner filed a motion for leave to file unredacted versions of P. Exs. 2, 4, 5, 6, 7, 8, 9, and 10, which Petitioner had previously submitted with redactions of personally identifiable information.

On July 15, 2021, I issued an order permitting Petitioner to file unredacted versions of P. Exs. 2, 4, 5, 6, 7, 8, 9, and 10.  Petitioner filed the additional proposed exhibits on July 23, 2021 and marked them consecutively as P. Exs 12-19.  On July 29, 2021, the IG

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renewed her objections to P. Exs. 3, 4, 5, and 11, and additionally objected to P. Exs. 9, 13, 14, and 18.

Pursuant to an order issued September 29, 2021, IG Ex. 2 was admitted, and Petitioner's request for cross-examination of individuals she characterized as witnesses was denied.

II.  Admission of Exhibits and Decision on the Record

Petitioner's request for cross-examination was denied pursuant to the September 29, 2021 Order, and Petitioner's only offered witness was herself which the IG did not request to cross-examine.  P. Br. at 9.  Therefore, this matter will be decided on the written record.

Both parties raised objections to certain exhibits.  First, without objections being raised, IG Exs. 1, 5, 6, and 7, as well as P. Exs. 1, 2, 6, 7, 8, 10, 12, 15, 16, 17, and 19 are admitted into evidence.  Next, Petitioner's objection to IG Ex. 2 was resolved in the September 29, 2021 Order, and IG Ex. 2 is admitted into evidence.  The remaining objections are resolved below.

1. Petitioner's objections to IG exhibits are overruled.

Petitioner objected to IG Ex. 3 (Arrest Warrant) and IG Ex. 4 (original Criminal Information) on the grounds that they are "irrelevant, immaterial, and any probative value [they] may have is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or needless presentation of cumulative evidence."  P. Objs. at 2-3.

As discussed in-depth below, the issue to be decided is whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(2) of the Act.  In order to make this determination, this tribunal must examine the evidence to determine whether Petitioner was convicted of a criminal offense related to neglect or abuse of a patient.  The Arrest Warrant and original Criminal Information are:

Relevant to determining whether Petitioner was convicted of a criminal offense related to neglect or abuse of patients, in connection with the delivery of a health care item or service.  [IG Exs. 3 and 4] contain[] evidence of the nature of the charge against Petitioner in the underlying criminal case.

*  *  *

[IG Exs. 3 and 4 are] documentary evidence . . . of the nature of the charges against Petitioner, in particular, whether the State of Florida's allegations against Petitioner related to abuse or neglect, irrespective of the veracity of those allegations.

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Order Denying Request for Cross-Examination and Closing Record at 2.  The admissibility of these documents is distinct from the weight to be given to the information presented in them.  Because these documents are relevant to examining the nature of Petitioner's criminal offense, they are admitted into evidence.

2. The IG's objections to Petitioner's exhibits are overruled.

The IG objected to P. Exs. 3 (Disciplinary Action Form), 4 & 13 (interview of Rebecca Odom, RN, redacted and unredacted), 5 & 14 (interview of Courtney Shiver, LPN, redacted and unredacted), 11 (character reference letter), and 9 & 18 (photos of patient C.A., redacted and unredacted), all on the grounds of relevancy.  IG Objections to Petitioner's Exhibits (IG Objs.); IG Reply at 7-9.

More specifically, the IG argues P. Ex. 3 does not impact the IG's ability to exclude Petitioner; P. Ex. 11 is only evidence of good character, which is not relevant to the issue presented; and that the remaining exhibits to which the IG objected are impermissible and irrelevant collateral attacks by Petitioner on her underlying conviction.  IG Objs.; IG Reply at 7-9.  To the extent these documents can serve a purpose beyond what the IG addressed, i.e., for the purpose of illustrating the lack of relation between any criminal conviction and neglect or abuse of a patient, they are relevant.

As stated above, the admissibility of these documents is distinct from the weight to be given the information presented in them.  Because the documents are relevant to examining the nature of Petitioner's criminal offense, they are admitted into evidence.

III.  Issue

Whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(2) of the Act. 1   42 U.S.C. § 1370a-7(a)(2).

IV. Jurisdiction

Jurisdiction is proper under 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1).

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V.  Findings of Fact

Petitioner started employment as a registered nurse (RN) at St. James Health and Rehabilitation Center (St. James) in August 2017.  P. Ex. 1 at 1.  On or about April 26, 2018, Petitioner began caring for St. James patient C.A.2 "on a routine basis."  P. Ex. 1 at 1.

On July 5, 2018, at approximately 3:00 p.m., S.H., one of C.A.'s children, visited C.A. at St. James and observed an injury to the right side of C.A.'s face, including a black eye, a cut under the eyebrow, bruising in the corner of the eye, and dried blood around the cut.  IG Exs. 2 at 2, 4 at 1, and 6 at 1; P. Exs. 15 at 1,3 and 16 at 1.  C.A. and her roommate reported that C.A. had fallen between 3 and 4 AM that morning.  IG Ex. 2 at 2; P. Exs. 15 at 1, and 16 at 1.  S.H. remained at St. James until approximately 8 PM, when S.H. "took it upon [themselves] to clean [C.A.] up."  P. Ex. 15 at 1-2.

After leaving St. James, S.H. called a sibling, E.A., to ask whether E.A. had observed the injury the day before.  P. Ex. 16 at 1.  E.A. did not know about the injury but said they "would call and find out what happened."  P. Ex. 16 at 1.  E.A. called St. James and spoke to Petitioner.  P. Exs. 1 at 2, and 17 at 1.  E.A. reported that C.A. had a head injury, and Petitioner placed E.A. on hold to conduct a visual check of C.A.  IG Ex. 2 at 3-5; P. Ex. 1 at 2.

When Petitioner attempted to conduct the initial check, "C.A. was sleeping on [their] right side" with a hand near the face.  P. Ex. 1 at 2; IG Ex. 2 at 4-5.  Petitioner visually checked "what she could see" of C.A.'s head, to avoid waking the patient.  IG Ex. 2 at 5; P. Ex. 1 at 2.  Petitioner informed E.A. that she did not observe any injuries.  IG Ex. 2 at 3, 5; P. Ex. 1 at 2.  E.A. became angry, and Petitioner hung up the phone.  IG Ex. 2 at 3, 5; P. Exs. 1 at 2, and 17 at 1.

Later that evening, Petitioner conducted a routine bi-weekly, full body skin observation of C.A. and noted that she did not observe any injuries.  IG Ex. 2 at 5; P. Exs. 1 at 2, and 12 at 1.  Petitioner told the investigator that "she only checked [C.A.'s] body because she had already checked [C.A.'s] head earlier when [E.A.] called and there was no injury."  IG Ex. 2 at 5.  Petitioner also told the investigator "that if she had known, or suspected, that [C.A.] had actually hit [their] head [Petitioner] would have taken care of the issue, by starting neurological checks, and contacting the doctor."  IG Ex. 2 at 5.

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The following morning, E.A. called St. James and spoke with a Licensed Practical Nurse (LPN).  P. Ex. 17 at 1.  The LPN, along with another employee as a witness, conducted another assessment of C.A. on the morning of July 6, 2018, and observed a black eye and small abrasion on C.A.'s right eye.  P. Ex. 5 at 1; IG Ex. 2 at 3-4.

On June 4, 2019, an Affidavit in Support of an Arrest Warrant for Petitioner was filed which detailed the investigation into the matter.  IG Ex. 2.  The same day, an Arrest Warrant was issued, finding probable cause to believe Petitioner committed one count of Neglect of a Disabled Adult.  IG Ex. 3.  On June 11, 2019, a Criminal Information charging Petitioner with one count of Neglect of a Disabled Adult was filed.  IG Ex. 4.

On January 17, 2020, Petitioner filed a written affidavit of plea of nolo contendere (no contest) to one count of Disorderly Conduct, "a stipulated lesser offense of Count I [Neglect of a Disabled Adult]."  IG Ex. 5.  On January 21, 2020, following Petitioner's affidavit of plea, the 1st Amended Information was filed, amending the charge to one count of Disorderly Conduct.  IG. Ex. 6.  The court thereafter accepted the plea "to Disorderly, a Second-Degree Misdemeanor . . . a stipulated lesser offense of Count I" on January 31, 2020.  IG. Ex. 7.  Petitioner was sentenced to a $100 fine, a $50 fine for the cost of prosecution, a $350 fine for the cost of investigation to the Medicaid Fraud Control Unit of the Florida Office of the Attorney General, and $300 in court costs.  IG Ex. 5.  The plea in absentia also noted that the adjudication of guilt would be withheld.  IG Ex. 5.

VI.  Analysis and Conclusions of Law

The Secretary of Health and Human Services (Secretary) shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that 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."  Act § 1128(a)(2); 42 U.S.C. § 1320a-7(a)(2).  Five years is the mandatory minimum length of an exclusion under sections 1128(a)(1)-(a)(4).  Act § 1128(c)(3)(B); 42 U.S.C. § 1320a-7(c)(3)(B).  The IG has the burden of proving all elements listed above by a preponderance of the evidence.

Three elements must be proven to support a mandatory exclusion under section 1128(a)(2):  (1) whether Petitioner was convicted of a criminal offense, and if so, (2) whether the conviction related to neglect or abuse of patients, and (3) was committed in connection with the delivery of a health care item or service.  Act § 1128(a)(2); 42 U.S.C. § 1320a-7(a)(2); 42 C.F.R. § 1001.101(b).

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1. Petitioner was convicted of a criminal offense.4

Section 1128(i) states that:

an individual or entity is considered to have been "convicted" of a criminal offense—
(1) 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;
(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;
(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or
(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Act § 1128(i) (emphasis added); 42 U.S.C. § 1320a-7(i).  Petitioner has acknowledged that her plea of no contest "constitutes a ‘conviction' as defined under 42 U.S.C. § 1320a-7(i) [Act § 1128(i)]."  P. Request for Hearing (RFH) at 5.

2. Petitioner's conviction related to neglect of a patient.

Petitioner's primary dispute is focused on this element of section 1128(a)(2).  Petitioner contends that although she "was initially charged with neglect of an elderly or disabled adult . . . there is no factual allegation nor any evidence in the Criminal Case record that [she] engaged in such conduct."  P. RFH at 6; see also P. Ex. 1 at 3 (Petitioner states that she has "always maintained that [she] did not commit neglect of an elderly or disabled adult").5

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."  57 Fed. Reg. 3298, 3303 (Jan. 29, 1992).  It is a question of "whether there is a common sense nexus between the underlying offense and

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potential or actual harm to the health and well-being of a patient in the course of health care delivery."  Robert C. Hartnett, DAB No. 2740 at 7 (2016) (emphasis in original).  The DAB has discussed in detail the law applicable to this analysis:

ALJ's [sic] are not limited to considering the bare elements or labels of the criminal statutes under which the individual was convicted.  Summit S. Shah, DAB No. 2836 at 7 (2017) ("The Board has long held . . . that an ALJ is free to look beyond the narrow constructs of a state's criminal statutes."); Narendra M. Patel, DAB No. 1736 at 10 (2000) (Congress did not intend to limit the [IG's] exclusion authority through "dependence on the vagaries of state criminal law definitions or record development"), aff'd, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003); Berton Siegel, D.O., DAB No. 1467 at 4 (1994) ("[I]t is not the labeling of the offense under the state statute which determines whether the offense is program-related").  Rather, ALJ's [sic] may look at "evidence as to the nature of an offense" such as "facts upon which the conviction was predicated."  Id.; Patel at 10 ("[T]he conviction is not required to be for patient neglect or abuse, but rather the circumstances that surrounded the actual offense need only show a relation to the neglect or abuse of a patient"); Rudman at 9 (an ALJ may consider "evidence regarding the nature of the offense, rather than the state's labeling of the admitted offense, to determine whether it involved conduct warranting exclusion").

Funmilola Mary Taiwo, DAB No. 2995 at 8 (2020).

Section 1128 does not provide a definition for neglect.  When a word is undefined in the Act or regulations, DAB decisions have utilized the common and ordinary meaning of the word.  Hartnett, DAB No. 2740 at 9 n.7 ("The common and ordinary meaning of the word ‘neglect' is ‘to give little attention or respect to' or ‘to leave undone or unattended to especially through carelessness.") (citing http://www.merriam-webster.com/dictionary/neglect); Summit Health Ltd., DAB No. 1173 at 8 (1990) ("Giving these unambiguous terms their common and ordinary meaning reasonably fulfills" the purpose and intent of section 1128(a)(2)).  As cited in both the IG and Petitioner briefs, certain ALJ decisions seeking to define neglect have also been instructed by the regulation applicable to long-term care facilities, which states, "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."  42 C.F.R. § 488.301.

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Petitioner favors the latter definition, arguing that the IG "erroneously asserts that the ALJ may elect to apply the common meaning or dictionary definition of ‘neglect' rather than the definition" in 42 C.F.R. § 488.301.  P. Br. at 6.  First, as cited above, DAB decisions have regularly applied the common and ordinary meaning of neglect.  Second, in favoring the regulatory definition, Petitioner erroneously asserts that "[a]bsent any evidence of patient neglect, there cannot be a nexus or relationship between disorderly conduct and patient neglect."  P. Br. at 7.  The drafters of the regulation specifically rejected the suggestion that this regulatory definition of neglect required evidence of a negative outcome.

Comment:  Other commenters requested that we require (within the definition of neglect) that evidence be presented that physical, emotional or psychological harm or some other negative outcome had occurred.
Response:  We do not accept this comment because neglect may be determined even if no apparent negative outcome has occurred.  The potential for negative outcome must also be considered.

59 Fed. Reg. 56130 (Nov. 10, 1994) (emphasis added).

Despite Petitioner's contention that she "did not commit neglect of an elderly or disabled adult," P. Ex. 1 at 3, the underlying facts and circumstances surrounding her Disorderly Conduct conviction sufficiently "show a relation to the neglect or abuse of a patient."  Patel, DAB No. 1736 at 10 (emphasis added).

Petitioner was charged with neglect or abuse of a patient based on allegations that despite examining C.A. on two separate occasions, Petitioner failed to identify a head injury and start a neurological check.  This supports a relation to neglect of a patient under either definition of neglect.  Petitioner herself stated that she would have taken steps to address the injury had she identified it.  IG Ex. 2 at 5.  The lack of timely identification led to the injury being "unattended to" and treatment steps being left "undone."  Hartnett, DAB No. 2740 at 9.  These circumstances contributed to the "potential for negative outcome."  59 Fed. Reg. 56130 (November 10, 1994).

Regardless of the initial charge being amended to the stipulated lesser offense of Disorderly Conduct, Petitioner's conviction stems from the facts and circumstances detailed above.  As such, her conviction related to neglect of a patient.

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3. The offense was committed in connection with the delivery of a health care item or service.

Analyzing a similar requirement under section 1128(a)(1), the DAB "has held that, based on the plain meaning of the word ‘related,' an offense is ‘related to the delivery of an item or service under a covered program if there is a common sense connection or nexus between the offense and the delivery of an item or service under the program."  Hartnett, DAB No. 2740 at 7 n.6 (2016) (citing Scott D. Augustine, DAB No. 2043 at 5-6 (2006)).  "Thus, in essence, the [DAB] has required a minimal showing of a connection between the underlying offense and its potential impact on patient health and well-being in the context of section 1128(a)(1), and, as discussed here, it has likewise required a minimal showing in the context of section 1128(a)(2)."  Id.

Similar to the petitioner in Hartnett, Petitioner's argument against this element is centered on the strict language of the Disorderly Conduct charge contained in the Amended Information and the argument that there is no nexus between her conviction and neglect of a patient.  P. Br. at 8-9; IG Ex. 6; Hartnett, DAB No. 2740 at 7.  However, only a "minimal showing of a connection" must be present to support a finding that the offense was "in connection with the delivery of a health care item or service."  Hartnett, DAB No. 2740 at 7 n.6; Act § 1128(a)(2); 42 U.S.C. § 1370a-7(a)(2).

At the time of the underlying offense, Petitioner was working as an RN responsible for providing health care services to patients at St. James, including C.A.  As discussed in the preceding section, Petitioner's Disorderly Conduct conviction relates to neglect of a patient, and this offense was committed during her employment as an RN with St. James.  Accordingly, there is at least a "minimal showing of a connection" between the offense and the delivery of a health care item or service.  Hartnett, DAB No. 2740 at 7 n.6.

4. An ALJ has no authority to decide the Constitutional issue Petitioner raised.

Lastly, Petitioner claims that "[t]he provision permitting the Exclusion based on ‘any offense that the OIG concludes entails, or resulted in, neglect or abuse of patients' is unconstitutionally vague in that it did not put [Petitioner] on notice that accepting a plea deal for misdemeanor Disorderly Conduct would result in her Exclusion."  P. RFH at 7.  However, an "ALJ does not have the authority to . . . [f]ind invalid or refuse to follow Federal statutes or regulations or secretarial delegations of authority."  42 C.F.R. § 1005.4(c)(1); Esohe Agbonkpolor, DAB No. 3002 at 9 (2020) (citing W. Scott Harkonen, M.D., DAB No. 2485 at 22 (2012), aff'd, Harkonen v. Sebelius, No. C 13-0071 PJH, 2013 WL 5734918 (N.D. Cal. Oct. 22, 2013)).  As such, this claim cannot be addressed at this forum.

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VII.  Conclusion

The IG has proven by a preponderance of the evidence that Petitioner was 1) convicted of a criminal offense; 2) the conviction was related to neglect of a patient; and 3) the offense was in connection with the delivery of a health care item or service.  Therefore, Petitioner shall be excluded from participating in Medicare, Medicaid, and other federal health care programs for the mandatory five-year period.  The five-year exclusion imposed by the IG is AFFIRMED.

• 1. ALJs are restricted in these cases to considering two issues:  (1) whether there is a basis for exclusion, as described above, and (2) whether the period of exclusion is reasonable.  42 C.F.R. § 1001.2007(a)(1).  However, where the IG imposes the mandatory minimum exclusion of five years, "the exclusion's length is reasonable as a matter of law, and the excluded individual may request a hearing only on the issue" of whether there is a basis for exclusion.  Diane Marie Krupka, DAB No. 3020 at 2 (2020); 42 C.F.R. § 1001.2007(a)(2).
• 2. The patient is referred to by their initials to safeguard the individual's privacy.
• 3. While this document references July 4, 2018, other pertinent documents, including Petitioner's written direct testimony (P. Ex. 1) identify the date in question as July 5.
• 4. The conclusions of law are set forth in bold headings, followed by pertinent analysis.
• 5. To the extent Petitioner's arguments constitute a collateral attack on her underlying conviction, such arguments are not permissible in this appeal.  42 C.F.R. § 1001.2007(d).