Leanne Samantha Igo, DAB CR6186 (2022)

DECISION

Respondent, the Inspector General for the United States Department of Health and Human Services (the IG), excluded Leanne Samantha Igo (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for five years based on her conviction for 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 her exclusion.  For the reasons stated below, I affirm the IG’s exclusion determination.

I.   Background and Procedural History

By letter dated March 21, 2022, 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 statutory minimum period of five years.  The IG explained she took this action based on Petitioner’s conviction in an Ohio state court 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.

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Petitioner timely sought review by an Administrative Law Judge (ALJ) in the Civil Remedies Division and I was designated to hear and decide this case.  She asserted the IG improperly excluded her because she was charged with neglect or abuse of a patient but ultimately convicted of a lesser offense.  P. Req. for Hearing at 1.  Petitioner therefore believes her conviction would at best subject her to permissive exclusion by the IG pursuant to section 1128(b) of the Act.  Id. at 1-2.

On June 9, 2022, I held a pre-hearing telephone conference, the substance of which is summarized in my June 9, 2022, Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  See 42 C.F.R. § 1005.8.  I directed the parties to file pre-hearing submissions articulating their respective arguments and identifying witnesses and documentary evidence in support thereof.  Summary Order ¶ 7.

The IG filed a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  Petitioner filed a brief (P. Br.) and one proposed exhibit (P. Ex. 1).  The IG subsequently filed a reply brief (IG Reply).

II.   Admission of Exhibits and Decision on the Record

Neither party objected to the opposing party’s proposed exhibits.  I therefore enter IG Exhibits 1 through 5 and P. Exhibit 1 into the record.

Neither the IG nor Petitioner identified witnesses or sought an in-person hearing.  I therefore issue this decision on the basis of the record before me.  Civ. Remedies Div. P. § 19(d).

III.   Issue

Whether the IG has a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to 42 U.S.C. § 1320a-7(a)(2).  See 42 C.F.R. § 1001.2007(a)(1).  If I affirm the basis for exclusion, the length of exclusion is per se reasonable because the IG selected the statutory minimum exclusion period of five years.  42 C.F.R. § 1001.102(a).

IV.   Applicable Law

Section 1128(f) of the Act 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 while the rights of both parties 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 submit only documentary evidence and written argument for my consideration.  See 42 C.F.R. § 1005.6(b)(5).

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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); see also 42 C.F.R. § 1001.101(b).

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 whether an appeal is pending or 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.  The statute does not distinguish between misdemeanor and felony convictions.  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)) be for a minimum period of five years.  42 C.F.R. § 1001.102(a).  The exclusion is effective twenty days from the date of the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The IG may extend the period of exclusion in the presence of specified aggravating factors.  42 C.F.R. § 1001.102(b).  The IG must consider mitigating factors as a basis for reducing the period of exclusion if she has determined aggravating factors justify extending the period of exclusion beyond five years.  42 C.F.R. § 1001.102(c).

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. § 1005.15(c); Summary Order ¶ 4.

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.

1. Petitioner’s request for a hearing was timely, and I have jurisdiction.

Petitioner timely requested a hearing and there is no dispute I 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).

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2. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(2) of the Act.

Exclusion from participation in Medicare, Medicaid, and all federal health care programs is mandated by section 1128(a)(2) of the Act 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 preponderance of the evidence.

1. Petitioner was convicted under federal or state law of a criminal offense.

Petitioner concedes she was convicted of a criminal offense within the meaning of the Act.  P. Br. at 2.  The IG has met this element for her exclusion under 42 U.S.C. § 1320a-7(a)(2).

2. Petitioner’s offense of conviction related to neglect or abuse of patients in connection with the delivery of a health care item or service.

Petitioner disputes the IG’s assertion that her criminal conviction is related to neglect of a patient within the meaning of section 1128(a)(2) of the Act.  P. Br. at 2.  To determine such relation, I must consider “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.”  Robert C. Hartnett, DAB No. 2740 at 7 (2016).  The Departmental Appeals Board (Board) has applied the ordinary definition of the terms “abuse” and “neglect” to assess whether an excluded individual’s conviction related to abuse or neglect under section 1128(a)(2) of the Act.  Janet Wallace, L.P.N., DAB No. 1326 at 10 (1992), citing Summit Health Ltd., DAB No. 1173 at 8 (1990).  Doing so, the Board held “neglect” means “to give little attention or respect to” or “to leave undone or unattended to especially through carelessness.”  Hartnett, DAB No. 2740 at 9 n.7, citing Neglect, Merriam-Webster Dictionary, available at https://www.merriam-webster.com/dictionary/neglect (last visited Oct. 31, 2022).

Here, the Ohio Attorney General’s Medicaid Fraud Control Unit (MFCU) claimed Petitioner failed to use required equipment (a Hoyer lift) to transfer a non-weight bearing resident from her bed to her wheelchair.  IG Ex. 4 at 1.  On March 29, 2019, Petitioner directed a nursing assistant under her supervision to assist her in transferring a patient from her bed to her wheelchair without the assistance of a Hoyer lift.  IG Ex. 3 at 1.  Petitioner was aware the patient generally required the use of a Hoyer lift to effectuate transfers.  P. Ex. 1 at 2.  In fact, the patient’s physician care plan expressly required the patient only be moved using a Hoyer lift device.  IG Ex. 3 at 1.  Petitioner had access to

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the patient’s care plan but did not review it.  Id. at 2.  Even so, the nursing assistant reminded Petitioner they were required to use the device to transfer the patient.  Id. at 1.  Petitioner and the nursing assistant attempted to move the patient from her bed to her wheelchair but were unable to support her weight.  Id.  Petitioner and the nursing assistant lowered the patient to the floor where she came to rest on her knees.  IG Ex. 3 at 1; P. Ex. 1 at 3.  Petitioner and the nursing assistant laid the patient on the floor, rolled her onto the Hoyer lift, and hoisted her into a wheelchair.  IG Ex. 3 at 2.  The patient begged to be returned to bed immediately, but claiming it was lunchtime, Petitioner instead left her in a wheelchair for approximately one and a half hours until two other nursing assistants assisted the patient back into her bed.  Id.  As a result of Petitioner’s failure to use the required equipment, her patient sustained multiple fractures in her right leg and foot.  IG Ex. 3 at 2; P. Ex. 1 at 4-5.

After investigation by the MFCU, the Ohio Attorney General charged Petitioner with one count of Gross Patient Neglect and one count of Patient Neglect.  IG Br. at 2.  Petitioner ultimately pleaded guilty to Attempted Patient Neglect, a third-degree misdemeanor.  IG Exs. 4, 5.

The IG argues Petitioner’s offense of Attempted Patient Neglect is plainly related to neglect of a patient.  IG Br. at 7.  She points out that Petitioner’s failure to follow the patient’s care plan and use the Hoyer lift are sufficient to establish a nexus between the facts and the basis of Petitioner’s conviction, and patient neglect under section 1128(a)(2).  Id.

Petitioner contends the IG relied on inaccurate and incomplete documents to prove the facts underlying her conviction.  P. Br. at 11.  Petitioner asserts the IG did not identify all relevant witnesses and interviews from the investigation of the incident.  Id.  Petitioner submitted her own sworn statement concerning the incident that led to her conviction.  P. Ex. 1.  In that affidavit, Petitioner contests characterizations contained in the investigative report relied upon by the IG, including an admission she was “in a rush” when attempting to transfer the patient.  Id. at 4.  Petitioner argues she was not rushed and did not know a Hoyer lift was necessary because other members of staff failed to properly update the patient’s medical records.  Id. at 3-4.

Petitioner’s effort to dispute facts that arose during the investigation that resulted in her conviction is in vain.  Petitioner did not dispute the charges of Neglect the state of Ohio brought against her but instead pleaded to Attempted Neglect to resolve them.  She now asserts different facts before me that she believes demonstrates she did not actually neglect her patient.  P. Ex. 1.  But Petitioner may not challenge her underlying conviction or the facts which led to that conviction before me.  42 C.F.R § 1001.2007(d); Nancy L. Clark, DAB No. 2989 at 6-7 (2020); Adel A. Kallini, MD, DAB No. 2944 at 6 n.3 (2019) (“. . . in challenging an exclusion or sanction based on, or derivative of, a prior criminal

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conviction, the [excluded party] is precluded from collaterally attacking the factual or procedural elements of the underlying offense.”).

Petitioner next relies on the regulatory definitions of abuse and neglect found at 42 C.F.R. § 488.301 to claim her offense of conviction is unrelated to patient neglect.  P. Br. at 8-9.  But “[t]he definitions in 42 C.F.R. § 488.301 were developed in connection with and specifically apply to the regulations governing Medicare participation requirements for skilled nursing facilities” and “[t]he Board has never applied the section 488.301 definition of neglect in reviewing an exclusion under section 1128(a)(2) of the Act.”  Shelia Ann Reed, DAB No. 3059 at 14 (2022).  Petitioner’s reliance on these contextually specific definitions is therefore unfounded.¹

Petitioner also argues that, in determining whether the underlying conviction falls in the scope of section 1128(a)(2), the definition for abuse and neglect under Ohio law should be applied, namely “recklessly failing to provide a person with any treatment, care, goods, or service that is necessary to maintain the health or safety of the person when the failure results in serious physical harm to the person.”).  O.R.C. § 2903.33(B) and (C)(2); P. Br. at 9.  Petitioner relies on Ohio’s inclusion of recklessness in its definition of neglect to argue her conviction does not relate to neglect under section 1128(a)(2).  Petitioner’s effort to use alternative definitions of neglect is unpersuasive.  As I have explained, the ordinary definition of neglect is appropriate to determine relatedness within the meaning of the Act.  Wallace, DAB No. 1326 at 10; Hartnett, DAB No. 2740 at 9 n.7.

Petitioner further contends her plea to Attempted Patient Neglect rather than actual Neglect demonstrates she did not actually engage in patient neglect.  P. Br. at 11.  This claim is unpersuasive.  The Board observed that “attempt” of a criminal offense can meet the necessary requirements to be related to the actual criminal offense.  Kenneth M. Behr, DAB No. 1997 at 3-4 (2005) (finding attempted embezzlement is related to embezzlement under 1128(a)(3) because attempt is a prerequisite for the actual crime and observing “[t]he fact that an individual attempts to embezzle funds or property demonstrates untrustworthiness.  Thus, both individuals who attempt and individuals who succeed in committing financial misconduct in connection with the delivery of a health care item or service pose a threat to federal health care programs.”).

In any event, to determine the relatedness of an offense of conviction for the purposes of exclusion, I am not bound to the four corners of a charging instrument.  Hartnett, DAB No. 2740 at 7 (“The Board also looks to the factual allegations underpinning the offense with which a petitioner was charged, and which form the basis for the requisite

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conviction.”).  Additionally, section 1128(a)(2) of the Act does not require a conviction for neglect.  Instead, “the circumstances that surrounded the actual offense need only show a relation to the neglect or abuse of a patient.”  Narendra M. Patel, M.D., DAB No. 1736 (2000).  Here, Petitioner pleaded to attempted patient neglect.  On its face, a conviction for attempting to neglect a patient is plainly related to patient neglect.

I have nevertheless considered the circumstances leading to Petitioner’s conviction to verify her offense of conviction related to patient neglect.  Petitioner contends the patient’s medical records were not adequately updated to reflect the need to use a Hoyer lift even though the patient’s plan of care included physician’s orders requiring its use.  IG Ex. 2 at 2; IG Ex. 3 at 1-2.  But Petitioner admits she knew a Hoyer lift was generally used to lift the patient.  P. Ex. 1 at 2.  And, critically, the nursing assistant who assisted Petitioner advised her prior to her attempt to move her patient that such a transfer required use of a Hoyer lift.  Petitioner still attempted to move the patient.  IG Ex. 2 at 2; IG Ex. 3 at 1-2.  Petitioner’s lapse in judgment resulted in multiple injuries to her patient, who she then left sitting in a wheelchair against her wishes for an extended period.  IG Ex. 2 at 2; P. Ex 1 at 4-5.

Petitioner’s failure to use the necessary equipment to safely transfer a patient – despite the existence of physician’s orders to that effect, knowing that the patient generally required the use of such equipment, and express warnings from a co-worker – meets the ordinary definition of neglect.  Petitioner “gave little attention or respect to” her patient’s condition and situational needs despite a general awareness of her patient’s needs and an explicit reminder from a colleague.  Hartnett, DAB No. 2740 at 9 n.7; see also Reed, DAB No. 3059 at 5 (affirming relatedness between a petitioner’s offense of conviction and patient neglect where the petitioner pleaded guilty to disorderly conduct after failing to identify a patient’s head injury and initiate a neurological check despite being made aware the patient had fallen).

Finally, Petitioner does not dispute her offense of conviction took place in connection with the delivery of a healthcare item or service.  See P. Br. at 10-13.  It is sufficient to note here that Petitioner’s criminal conduct occurred while she was on duty as a nurse in a nursing facility and while caring for a patient.  I therefore conclude Petitioner’s offense of conviction took place in connection with the delivery of a health care item or service.

3. 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 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).  Neither I nor the IG have the discretion to impose a lesser period of exclusion.

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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.

Endnotes

¹ It is difficult to see how Petitioner would be aided by applying the definition of neglect found here, which is “the failure . . . 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.  The conduct which formed the basis of the charge against her squarely meets this definition.