Kathryn Ann Olson, DAB CR5829 (2021)

DECISION

I affirm the determination of the Inspector General of the United States Department of Health and Human Services (IG) to exclude Petitioner, Kathryn Ann Olson, for five years from participating in Medicare, Medicaid, and all federal health care programs.

I.  Procedural History

In a July 31, 2020 letter, the IG notified Petitioner that she was being excluded from participation in all federal health care programs under 42 U.S.C. § 1320a-7(a)(2), for a period of five years.  The IG advised Petitioner that the exclusion was based on her conviction in the Santa Fe County Magistrate Court, State of New Mexico (Magistrate Court) 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 September 28, 2020, Petitioner timely requested a hearing to dispute the exclusion.  On October 1, 2020, the Civil Remedies Division (CRD) acknowledged the hearing request, informed the parties I was assigned to hear and decide this case, and indicated that I would hold a prehearing conference.  CRD also issued to the parties my Standing

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Prehearing Order.  On October 21, 2020, I convened a telephonic prehearing conference, the substance of which is summarized in my October 21, 2020 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions.

In conformance with the submission schedule I established, the IG submitted a brief (IG Br.) and eight proposed exhibits (IG Exs. 1-8).  Petitioner then timely submitted a brief (P. Br.) and four proposed exhibits (P. Exs. A-D).  The IG filed a reply brief.

II.  Admission of Exhibits and Decision Rendered on the Written Record

I admit all of the proposed exhibits, without objection.  Standing Prehearing Order ¶ 12; see 42 C.F.R. § 1005.8(c).

Neither party has any witnesses to offer and both parties indicate that they do not believe an evidentiary hearing is necessary in this case.  IG Br. at 10; P. Br. at 13-14.  Therefore, I issue this decision based on the written record.  Standing Prehearing Order ¶ 16; see 42 C.F.R. § 1005.6(b)(5).

III.  Issue

Whether the IG had a basis to exclude Petitioner from participation in all federal health care programs 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.

V.  Findings of Fact

1. Petitioner has been licensed as a nurse for over 40 years and is currently licensed to practice in New Mexico.  P. Br. at 2.
2. On May 22, 2019, a Santa Fe police officer filed a Criminal Complaint in the Santa Fe County Magistrate Court, Santa Fe, New Mexico, charging Petitioner with one count of Abuse of a Resident, in violation of N.M. Stat. Ann. § 30‑47‑4.
3. On October 11, 2019, an Assistant District Attorney and a Special Trial Prosecutor filed an Amended Criminal Complaint, which incorporated the March 22, 2019 Criminal Complaint, charging Petitioner with one count of Abuse of a Resident, in violation of N.M. Stat. Ann. § 30‑47‑4, and one count of Battery, in violation of N.M. Stat. Ann. § 30‑3‑4.

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4. Count 1 of the Amended Criminal Complaint alleged that Petitioner "on or about April 26, 2019 . . . intentionally, knowingly or recklessly acted or failed to act in a manner that was likely to cause harm to [E.P.], a care facility resident."  IG Ex. 3 at 1.
5. Count 2 of the Amended Criminal Complaint alleged that Petitioner "on or about April 26, 2019 . . . did unlawfully touch or apply force to [E.P.] in a rude, insolent or angry manner."  IG Ex. 3 at 1.
6. On January 30, 2020, Petitioner entered a plea of no contest to the charges and the Magistrate Court accepted the plea.  IG Exs. 4, 5.
7. On January 30, 2020, the Magistrate Court entered a Conditional Discharge Order that ordered Petitioner "be placed on 180 days of unsupervised probation."  The Conditional Discharge Order also ordered that if Petitioner successfully completed probation, she "shall be discharged and the charges shall be dismissed."  IG Ex. 6.
8. On July 30, 2020, the Magistrate Court found that Petitioner satisfied the terms of the Conditional Discharge Order and dismissed the charges against Petitioner.  IG Ex. 7.
9. On August 27, 2020, the Magistrate Court entered an Amended Order of Dismissal Nunc Pro Tunc on Conditional Discharge, reaffirming that Petitioner satisfied the terms of the conditional discharge and dismissed the charges against Petitioner nunc pro tunc to January 29, 2020.  The amended order also stated that the Magistrate Court had not adjudicated the guilt of Petitioner.  IG Ex. 8.

VI.  Conclusions of Law, and Analysis

The Secretary of Health and Human Services (Secretary) must 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."  42 U.S.C. § 1320a-7(a)(2).  Further, the regulations implementing this statute state that this exclusion provision applies to any offense the IG concludes entailed, or resulted in, neglect or abuse of patients.  42 C.F.R. § 1001.101(b).

In the present case, the record supports the conclusion that all of the elements for a mandatory exclusion are met.  My conclusions of law are in bold and italics.

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1. Petitioner was convicted of a criminal offense for purposes of 42 U.S.C. § 1320a-7(i)(3)-(4) because her no contest plea was accepted by the Magistrate Court, and she entered into a first offender program, deferred adjudication program or other arrangement where the judgment of conviction was withheld.

Under 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 the record of the conviction is expunged; (2) there is a finding of guilt by a federal, state, or local court; (3) a plea of guilty or nolo contendere is accepted by a federal, state, or local court; or (4) the individual has entered into a first offender program, deferred adjudication program, or other arrangement where a judgment of conviction is withheld.

In this case, the record shows that Petitioner pleaded no contest to one count of Abuse of a Resident and one count of Battery, and the Magistrate Court accepted Petitioner's plea on January 30, 2020.  IG Exs. 4, 5.

Petitioner admits that she "changed her plea to no contest for both petty misdemeanors," but asserts there is no record that the Magistrate Court accepted her no contest plea because she was not sworn in by the judge and there is no evidence that the court properly engaged in a plea colloquy.  P. Br. at 5-12.  Despite Petitioner's assertions to the contrary, the record shows that the court accepted her plea.

By signing the Guilty Plea or No Contest Plea Proceeding form, Petitioner attested that she "understand[s] the constitutional rights that I am giving up and plead [no contest] to the charges specified above."  IG Ex. 5 at 2.  The judge signed that form, indicating that "I conclude that the [Petitioner] knowingly, voluntarily and intelligently plead[ed] guilty or no contest to the specified charges and accept such plea."  IG Ex. 5 at 2.  Petitioner counters that IG Ex. 5 "is not a substitute for the Court first addressing defendant in open court to determine that the plea is voluntary."  However, Petitioner provides no evidence that makes me doubt the judge's authority and intent.  Further, Petitioner's argument essentially amounts to a collateral attack on her state criminal proceeding.  I do not have jurisdiction to review the basis for the underlying conviction on substantive or procedural grounds.  42 C.F.R. § 1001.2007(d).

To the extent that Petitioner disputes that the Magistrate Court qualifies as a court for purposes of accepting Petitioner's plea due to its limited jurisdiction, I note that the exclusion statute expressly and broadly encompasses federal, state and local courts.  42 U.S.C. § 1320a-7(i)(3).  And while magistrate courts in New Mexico are considered courts of limited original jurisdiction, state law also says that magistrate courts are established "within the judicial department of the state government."  N.M. Stat. Ann. § 35-1-1.  Therefore, the Magistrate Court in this case is a state court.

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The record also shows that Petitioner was "convicted," as that terms is defined under 42 U.S.C. § 1320a-7(i)(4), because the Magistrate Court entered a Conditional Discharge Order that states "[w]ithout entering an adjudication of guilt, the court enters a conditional discharge and orders that [Petitioner] shall be placed on 180 days of unsupervised probation. . . .  If [Petitioner] successfully completes probation, [Petitioner] shall be discharged and the charges shall be dismissed."  IG Ex. 6.

New Mexico established the availability of conditional discharge in the following circumstances:

When a person who has not been previously convicted of a felony offense is found guilty of a crime for which a deferred or suspended sentence is authorized, the court may, without entering an adjudication of guilt, enter a conditional discharge order and place the person on probation . . . .

N.M. Stat. Ann. § 31-20-13(A).  That statute further directs that "[i]f the person violates any of the conditions of probation, the court may enter an adjudication of guilt and proceed as otherwise provided by law."  N.M. Stat. Ann. § 31-20-13(B).

The description of the conditional discharge order in the state of New Mexico is a deferred adjudication program as described in Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994).  That opinion indicated that:

In a deferred adjudication . . . , if the defendant does not live up to the terms of his agreement, he is not free to set aside his plea or proceed to trial – the court may simply enter a judgment of conviction.  Under those circumstances, the entry of a judgment is a mere formality because the defendant has irrevocably committed himself to a plea of guilty or no contest which cannot be unilaterally withdrawn.

Travers, 20 F.3d at 997; see Rudman v. Leavitt, 578 F. Supp. 2d 812, 815 (D. Md. 2008); Gupton v. Leavitt, 575 F. Supp. 2d 874, 880-81 (E.D. Tenn. 2008).

As part of the sentence in this case, the Magistrate Court promised to dismiss the proceedings against Petitioner if she successfully completed the imposed 180 days of unsupervised probation.  IG Ex. 6.  If Petitioner had violated a condition of her probation, per N.M. Stat. Ann. § 31-20-13(B), the Magistrate Court could have entered judgment against Petitioner.  Petitioner, however, did not violate any terms of her probation and the Magistrate Court entered a Final Order of Discharge on July 30, 2020.  IG Ex. 7.  Later, the Magistrate Court expressly dismissed the criminal proceedings against Petitioner, nunc pro tunc to January 29, 2020.  IG Ex. 8.

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Petitioner asserts that she was not "convicted" because "the final order in this case dismisses the charges prior to the date of a change of plea, which is tantamount to the change of plea never occurring."  P. Br. at 11.  Petitioner also argues that "a defendant who receives conditional discharge of an offense after completing a term of probation under New Mexico law is neither adjudicated guilty nor convicted."  P. Br. at 6.  However, in the present proceedings, federal law determines whether an individual is convicted within the meaning of the Act, rather than state law.  Congress is not bound to follow state laws and has chosen to define convictions more broadly for purposes of excluding parties from participation in federal programs.  See Travers, 20 F.3d 993 at 996 ("What constitutes a 'conviction' under the Medicaid Act, however, is determined by federal law, not state law.").  Furthermore, as discussed above, if Petitioner failed to satisfy the conditions of the Conditional Discharge Order, she was not free to set aside her plea or proceed to trial – the court would enter a judgment of conviction.  Therefore, it is irrelevant that the Magistrate Court dismissed the charges nunc pro tunc, and I conclude that Petitioner meets the statutory definition of being "convicted" of a criminal offense for purposes of exclusion under 42 U.S.C. § 1320a-7(i)(4).

Petitioner also argues that her convictions were "petty misdemeanors, and not misdemeanors or felonies as contemplated in the exclusion statute, [and] the petty misdemeanor distinction [serves] as additional grounds . . . to reverse the IG's decision to exclude her."  P. Br. at 11.  Petitioner reasons that the crimes she pleaded to "do not even fit the mandatory exclusion requirements under Section 1128(a) which contemplate convictions for misdemeanor and/or felony crimes."  P. Br. at 2-3 (emphasis omitted).

Petitioner's arguments are unavailing.  While Petitioner may have pleaded no contest to petty misdemeanors, I still conclude that Petitioner has been convicted of a criminal offense.  The offenses to which Petitioner pled no contest are codified as part of the criminal offenses statutes under New Mexico law.  Further, a petty misdemeanor is a criminal offense under the criminal statutes of New Mexico because up to six months imprisonment is authorized.  N.M. Stat. Ann. § 30-1-6(C) ("A crime is a petty misdemeanor if it is so designated by law or if upon conviction thereof a sentence of imprisonment for six months or less is authorized."); see Crystal Y. Courtney-Wade, DAB CR5256 at 7 (2019) ("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."); Marie J. Jeanty, DAB CR4970 at 5 (2017) ("It is difficult to imagine a scenario where an individual, charged via criminal complaint in a criminal court and subject to a conviction from that court upon pleading guilty, would later claim he or she had committed a 'non-criminal violation.'  It is similarly difficult to imagine Congress did not intend to include exactly this sort of proceeding and outcome as a trigger for exclusion.").

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For the reasons stated above, I conclude that Petitioner was "convicted" of a criminal offense for purposes of exclusion under 42 U.S.C. § 1320a-7(i)(3).

2. Petitioner was convicted of a criminal offense related to abuse of a patient in connection with the delivery of a health care item or service.

Petitioner argues that she did not abuse E.P.  Petitioner asserts that her "attempt to relocate E.P. from one room to another devoid of any deliberate act to mistreat is simply not the kind of conduct meant to trigger exclusion."  P. Br. at 12-13.  Petitioner stated that on the date of the incident, E.P. was verbally harassing another resident and Petitioner was called to assist.  Petitioner stated that she placed her hands under and around E.P.'s arms and tried to lift E.P. to her feet, but E.P. resisted.  P. Br. at 4.  Petitioner then went to get a wheelchair and attempted to move E.P. again, but E.P. changed her mind and sat back down in her original seat.  P. Br. at 4.  Petitioner asserts that she "never used any force so as to injure E.P. [and] never willfully mistreated E.P."  P. Br. at 4.

E.P. was a resident at the facility, a long-term care facility, for approximately 11 months and had been diagnosed with severe Alzheimer's Disease.  IG Ex. 2 at 1.  Although Petitioner argues that E.P. was not a "patient" because Petitioner was off duty and not working her shift when the incident occurred (P. Br. at 12), there is no doubt that E.P. 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).

Patient means any individual who is receiving health care items or services, including any item or service provided to meet his or her physical, mental or emotional needs or well‑being (including a resident receiving care in a facility as described in part 483 of this chapter), 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.  Regardless of whether Petitioner was on duty at the time of the incident, E.P. was a patient because she was receiving care at a long-term care facility (i.e., a facility described in 42 C.F.R. pt. 483).

The question as to whether Petitioner's conviction is related to abuse "is a legal determination to be made by the Secretary 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.

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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 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).

In the present case, the record shows that there is a common sense connection or a nexus between Petitioner's criminal conviction and abuse of a patient.  Petitioner pleaded no contest to the following offense:  "Whoever commits abuse of a care facility resident that results in no harm to the resident is guilty of a petty misdemeanor . . . ."  N.M. Stat. Ann. § 30-47-4; IG Ex. 2; IG Ex. 4; IG Ex. 5.  Further, the factual basis for the criminal offense shows that it is related to abuse.

The sworn criminal complaint against Petitioner indicates that the incident between Petitioner and E.P. was recorded.  The officer who investigated the matter described the

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events on the recording in detail.  The officer described that E.P. was sitting on a bench in the lounge area when Petitioner entered the room and began talking to E.P. while making hand movements.  Petitioner then moved a chair out of her way and quickly approached E.P., grabbing E.P.'s left arm and physically pulling E.P. by the arm in an attempt to get her out of the seat.  The officer described that E.P. nearly fell when Petitioner pulled her by the arm.  E.P. made several attempts to sit back into her seat, but Petitioner continued to pull her left arm.  The officer observed that Petitioner eventually let go of E.P.'s left arm, but grabbed E.P. underneath her arms and made a couple of attempts to get E.P. to stand up unsuccessfully.  The officer then observed that Petitioner left the lounge area and returned approximately one minute later with a wheelchair.  After talking to E.P., the officer described that Petitioner aggressively pulled E.P. out of her seat in the direction of the wheelchair, unsuccessfully.  The video shows that Petitioner continued to speak with E.P. before cutting out.  IG Ex. 2 at 2.

The officer also spoke to witnesses who described that when Petitioner arrived, she grabbed and shook E.P. while yelling at her, attempting to force E.P. out of her chair.  One witness described Petitioner's actions as "overly aggressive" and that could have hurt E.P.  The other witness stated that Petitioner was using "her 'full force'" to move E.P.  IG Ex. 2 at 2.

Petitioner argues that her "attempt to relocate E.P. from one room to another [is] devoid of any deliberate act to mistreat [and] simply not the kind of conduct meant to trigger exclusion."  P. Br. at 13.  Further, Petitioner asserts that she only pleaded no contest due to cost and time consideration.  P. Br. at 5.  However, I cannot consider collateral attacks on Petitioner's conviction or revisit whether Petitioner abused E.P. or simply attempted to relocate the resident.  42 C.F.R. § 1001.2007(d).  While I was required to consider the underlying facts in the criminal record to ensure that Petitioner in fact engaged in abuse, as opposed to simply accepting the label placed on the criminal statute, I have determined the criminal record shows this.  Petitioner pleaded no contest to the crimes of abuse of a resident and of battery, and the criminal complaint detailing the reasons for the charges provides substantial support that those charges were based on abuse.  Even considering Petitioner's statement (P. Br. at 2-5), the record shows that, more likely than not, Petitioner's criminal conviction was related to abuse.

3. Under 42 U.S.C. § 1320a-7(a)(2), Petitioner must be excluded from participation in all federal health care programs for five years under 42 U.S.C. § 1320‑7(c)(3)(B).  42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).

As indicated above, the record conclusively shows that Petitioner was convicted, as that term is defined in 42 U.S.C. § 1320a-7(i), and that conviction meets all the elements under 42 U.S.C. § 1320a-7(a)(2) for a mandatory exclusion.  Therefore, Petitioner is subject to a five-year exclusion under 42 U.S.C. § 1320a-7(c)(3)(B).

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VI.  Conclusion

I affirm the IG's exclusion of Petitioner for five years from participating in Medicare, Medicaid, and all federal health care programs under 42 U.S.C. § 1320a-7(a)(2).