Adama Fall, DAB CR5164 (2018)

AMENDED DECISION*

Petitioner, Adama Fall, 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 January 18, 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 (I.G.) for the U.S. Department of Health and Human Services notified Petitioner by letter dated December 29, 2017, that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  I.G. Exhibit (Ex.) 1 at 1.  The I.G. 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 Providence County Superior Court, State of Rhode Island, of a criminal offense related to the neglect or abuse of patients in connection with the delivery of a health care item or service.  I.G. Ex. 1 at 1.

Petitioner timely requested a hearing on February 21, 2018 (RFH).  The case was assigned to me on February 28, 2018.  On March 15, 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 (Prehearing Order) issued the same day.  The I.G. filed a motion for summary judgment with a supporting brief (I.G. Br.) and I.G. Exhibits 1 through 4 on April 27, 2018.  Petitioner filed her response in opposition to the I.G.’s motion (P. Br.) with Petitioner’s Exhibits (P.  Exs.) 1 through 7 on May 22, 2018.  On June 7, 2018, the I.G. filed a reply brief (I.G.  Reply).  Petitioner filed a sur-reply (P. Reply) on June 21, 2018.  There have been no objections to my consideration of I.G. Exs. 1 through 4 or P. Exs. 1 through 7 and all 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

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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 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 I.G. bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Prehearing Order at 2.

B. Issues

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

Whether the I.G. 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 I.G. 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 I.G. 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 I.G. 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, 247-49 (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.

On October 10, 2017, judgment was entered in the Superior Court, Counties of Providence and Bristol, Providence, State of Rhode Island, adjudging Petitioner guilty, pursuant to her plea of no contest, of a criminal offense and sentencing her to one year of probation and 50 hours of community service not to be performed with disabled or elderly patients.  I.G. Ex. 3.

There is a dispute as to which Rhode Island statute Petitioner was convicted of violating, but that fact is not material to disposition of this case.  The I.G.’s position is that Petitioner was convicted of neglect of a patient or resident under section 23-17.8-1 of the General Laws of Rhode Island (Rhode Island statutes).  I.G. Br.; I.G. Reply.  The I.G. has presented evidence in support of its position, including the criminal information (I.G. Ex.  2); the judgment of the Superior Court which does not cite the specific Rhode Island statute or refer to neglect, but does refer to patient abuse (I.G. Ex. 3); and the Superior Court docket report that reflects a misdemeanor violation of section 23-17.8-1(a)(1)(v) characterized as patient abuse – harassing conduct (I.G. Ex. 4 at 3).  Petitioner argues that she was not convicted of patient neglect or abuse under section 23-17.8-1 of the Rhode Island statutes.  She argues that she agreed to plead no contest to an administrative licensing violation under section 23-17.9-5 of the Rhode Island statutes.  Petitioner offers as evidence a plea form that indicates she requested to enter a no contest plea to violation of section 23-17.9-5 of the Rhode Island statutes.  P. Ex. 1; P. Br. at 2; P. Reply.  The plea form submitted by Petitioner is hand-written and citations to the statutes listed in the form appear to have been overwritten in some instances.  The documents submitted by the I.G. are clear as to the charge against Petitioner but not clear as to the charge of which she was convicted.  An oral hearing with testimony would be necessary to determine the correct section of the Rhode Island statutes Petitioner was convicted of violating.  However, for reasons discussed hereafter, the section of the Rhode Island statutes Petitioner violated is not material in this case and a genuine dispute as to that issue does not defeat summary judgment.

Petitioner admits to the material facts and they are not in dispute.  Petitioner states in her request for hearing that she is a certified nursing assistant (CNA) and obtained her CNA license in 2007.  Petitioner worked for three years at Highlands on the East Side, a nursing home.  Petitioner states that another CNA at the facility made an allegation of abuse against Petitioner.  The allegation involved an elderly dementia patient who had

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fallen to the floor before Petitioner arrived on the scene.  Petitioner states that she and another CNA went to aid the resident.  RFH at 1-2; P. Ex. 2.  According to the consent order to which Petitioner agreed, the incident occurred about October 14, 2015, and it was alleged that Petitioner neglected the patient by refusing to get assistance.  P. Ex. 2 at 1-2.  Petitioner does not deny or dispute that she was criminally charged with knowing neglect of the resident on about October 14, 2015, in violation of Rhode Island law.  P. Br. at 2; I.G. Ex. 2.  Respondent explains that she decided to plead guilty to a reduced charge to avoid the cost of a trial.  RFH at 2; I.G. Exs. 2, 3, 4; P. Ex. 1.  Petitioner does not dispute that she was convicted pursuant to her plea of no contest, though the exact offense is disputed.  P. Ex. 1; I.G. Exs. 3, 4.

b. Analysis

The I.G. 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)):

.  .  .

(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 in connection with the delivery of a health care item or service.  There is no requirement for a felony conviction.

In this case, the undisputed facts show that Petitioner was convicted of a misdemeanor criminal offense.  I accept as true for purposes of summary judgment Petitioner’s assertions that the Rhode Island statute she was convicted of violating did not specifically refer to patient or resident abuse or neglect.  Nevertheless, I conclude that the undisputed facts, indeed the facts Petitioner admits to in her request for hearing and the consent agreement with the state licensing board (P. Ex. 2), show that her conviction was related to the alleged neglect or abuse of one of her patients in October 2015, regardless of how the state characterized the criminal charge.  I further conclude that Petitioner’s request for

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hearing and consent agreement show that the alleged neglect or abuse occurred while Petitioner was working at a nursing facility and that there is a nexus between the conduct underlying the offense for which she was charged and the charge of which she was convicted, and the delivery of a health care item or service.

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 “failure .  .  . to provide goods and services .  .  . necessary to avoid physical harm, pain, mental anguish, or emotional distress.”  Id.  Applying the definitions of abuse and neglect at 42 C.F.R. § 488.301 to the facts underlying the charge of which Petitioner was ultimately convicted as reflected in her request for hearing and the consent agreement she offered as evidence (P. Ex. 2), I have no trouble concluding that Petitioner’s criminal conviction related to an allegation of abuse or neglect of her patient/resident.  The allegations of fact underlying the original charge (I.G. Ex. 2) are no different from those underlying the charge Petitioner asserts she was convicted of, and they are no different from those underlying her consent agreement with the state licensing authority (P. Ex. 2).

Petitioner argues that she pleaded nolo contendere, that is, no contest, to the state charge and did not intend to admit the facts underlying the charge.  RFH; P. Br. at 6-7.  However, under section 1128(i) of the Act, one is convicted of a criminal offense when a judgment of conviction has been entered by a state or local court or when a plea of guilty or no contest (nolo contendere) has been accepted by a state or local court.  Act § 1128(i); 42 C.F.R. § 1001.2.

Petitioner also argues that the state charge to which she pleaded guilty was not a charge of abuse or neglect under state law.  P. Br. at 3-5.  However, that argument is not grounds for concluding section 1128(a)(2) of the Act does not apply.  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 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

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convicted.”  Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000).  The terms “related to” and “relating to” in 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 & 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 alleged abuse or neglect of a nursing home resident or 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.

Petitioner’s arguments may be construed to raise the issue of whether or not the conduct for which she was convicted was in connection with the delivery of a health care item or service.  RFH.  This issue must also be resolved against Petitioner.  Petitioner’s conduct was clearly in connection with the delivery of a health care item or service.  The charge of which she was convicted clearly shows that Petitioner was a CNA working in a long-term care facility, and that her patient was a resident of that facility.  I.G. Ex. 4.  The fact that the allegedly neglectful conduct was committed on a resident of a health care facility by an employee of that health care facility shows 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 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.  The I.G. has no discretion under the Act not to exclude Petitioner when the elements of section 1128(a)(2) 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 of exclusion 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 I.G 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 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).

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Exclusion is effective 20 days from the date of the I.G.’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 January 18, 2018.

• *. This decision has been amended to correct a scrivener’s error in the case heading.
• 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 I.G. action, unless otherwise indicated.