Comeshia Hubbard, DAB CR6193 (2022)

DECISION

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

I.   Procedural History

In a June 30, 2022 notice, the IG informed Petitioner that she was excluding Petitioner 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 Simpson County Justice Court, state of Mississippi (Justice Court), of a criminal offense related to neglect or abuse of a patient in connection with the delivery of a health care item or service.  IG Ex. 1 at 1. 

Petitioner timely requested a hearing to dispute the exclusion.  Petitioner included with her hearing request two documents, one of which was a Final Judgement and Sentence of the Court in her criminal case.  E-Filing System (E-File) Document No. 1a.

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On August 18, 2022, 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 my Standing Prehearing Order (SPO).  The SPO stated the following concerning representation: 

If Petitioner wants to hire an attorney but has not found one yet and needs additional time, Petitioner must file a written request that I reschedule no less than five (5) days before the prehearing conference.  Petitioner should explain that the request is based on the need to find an attorney.  If Petitioner seeks additional time to appoint an attorney, but is unable to electronically file the request to reschedule the prehearing conference, Petitioner must contact the attorney advisor identified in the notice accompanying this order. 

SPO ¶ 3 (emphasis omitted). 

On September 7, 2022, I held a telephonic prehearing conference at which the parties agreed to the dates for the submission of prehearing exchanges.  At the conference, I discussed Petitioner’s right to representation; however, Petitioner wanted to represent herself.  I summarized the conversation I had with Petitioner as follows: 

Petitioner appeared at the conference pro se or self-represented.  Petitioner indicated that she wanted to proceed with the call without counsel and that she would decide after the call whether to retain counsel to represent her in this matter.  I advised Petitioner that I do not have the authority to appoint an attorney to represent her, but that she may retain counsel at her own expense.  If Petitioner decides to hire counsel, Petitioner must have her attorney contact [CRD] immediately.  I also stated that Petitioner may hire an attorney at any point in this case; however, I indicated that hiring one earlier in the process was better than later. 

September 7, 2022 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions at 1. 

In conformance with the submission schedule that the parties agreed to in this case, the IG timely submitted a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  Petitioner

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then timely submitted her brief (P. Br.),¹ her written direct testimony (P. Ex. 1),² and one additional exhibit (P. Ex. 3).³  The IG filed a reply brief (IG Reply).

In a November 1, 2022 filing, Petitioner requested a week “to get more support and a lawyer for my argument.”  Petitioner also asked to be able to reply to the IG’s arguments.  In a November 3, 2022 Order, I granted Petitioner’s request to file a sur-reply by November 8, 2022.  I also informed Petitioner that, if she hired an attorney, the attorney would need to enter an appearance and register for E-File.

On November 4, 2022, Petitioner requested an extension until February 2023, because the lawyer that she wants to represent her “has to be out on those days and I have been misconfirmed [sic] on the way for communicating between myself and the lawyer that I intended on having to represent[] me.”

On November 4, 2022, I denied Petitioner’s request.  I indicated that Petitioner had been previously advised of her right to be represented by an attorney.  I stated that, even after the IG filed a prehearing exchange, Petitioner did not request additional time to obtain an attorney but filed her prehearing exchange.  It was not until after the IG filed a reply brief that Petitioner began to seek representation.  I stated that, because both parties indicated that an in-person was unnecessary, this case was ready for a decision.  See SPO ¶ 16.  Further, to the extent that Petitioner wanted to submit additional evidence, I advised Petitioner that she could only add exhibits to her prehearing exchange if there were

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“extraordinary circumstances” to justify a failure to provide the evidence at the time of the prehearing exchange.  42 C.F.R. § 1005.8(b).  Finally, I stated that three months was an excessive amount of time to file a sur-reply brief.

On November 8, 2022, Petitioner filed a sur-reply brief (P. Sur-Reply Br.) and an additional, unmarked exhibit (E-File Document No. 19a).

II.   Admission of Exhibits

I admit all of the IG’s proposed exhibits and Petitioner’s proposed Exhibits 1 and 3 into the record, without objection.  SPO ¶ 12; see 42 C.F.R. § 1005.8(c).

I also admit into the record the Final Judgement and Sentence of the Court that Petitioner submitted with both her hearing request and her sur-reply brief.  E-File Document Nos. 1a, 19a.  The IG was on notice of the document before filing the prehearing exchange.  Further, the IG has not objected to it following Petitioner’s re-submission of it with the sur-reply.  This document is clearly relevant and material to this case.

III.   Decision on the Written Record

I issue this decision based on the written record because neither party had testimony that it wanted to provide at an in-person hearing and neither party thought that an in-person hearing is necessary to decide this case.  IG Br. at 8; P. Br. at 2-3; see also 42 C.F.R. § 1005.6(b)(5) (parties may waive appearance at oral hearing).  Further, while I have interpreted Petitioner Exhibit 1 as written direct testimony, the IG did not request to cross-examine her at a hearing.  SPO ¶¶ 11, 16; see 42 C.F.R. § 1005.16(b).

IV.   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).

V.   Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007, 1005.2.

VI.   Findings of Fact

1. Petitioner has worked in the health care field for six years.  Three of those years were spent serving as a certified nurse assistant at hospitals and nursing homes.  P. Ex. 1 at 1.

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2. In January 2018, Petitioner was employed at Boswell Regional Center (Boswell).  IG Ex. 2 at 1; IG Ex. 3 at 1; see P. Ex. 1 at 1. 
3. In January 2018, M.S. was a resident at Boswell who was diagnosed with “Profound Mental Retardation.”  IG Ex. 2 at 1. 
4. On January 29, 2018, Boswell reported to the Mississippi Attorney General’s Medicaid Fraud Control Unit that, on January 26, 2018, Petitioner “hit” M.S. with a plastic water bottle.  Boswell reported that it placed Petitioner on administrative leave and investigated the incident.  Boswell’s investigation initially confirmed the January 26, 2018 incident with another Boswell employee, who has the initials K.S.  Boswell also reported that, when interviewed, Petitioner initially denied hitting M.S. with the bottle, but then stated that she “accidentally hit” M.S.  Boswell stated that after further questioning, Petitioner admitted to pointing and shaking the water bottle at M.S., as well as threatening to hit him with it if he did not sit down.  Petitioner characterized this exchange as joking with M.S.  Additional questioning resulted in statements from Petitioner that she did not remember hitting M.S. “too hard or at all with the water bottle.”  Boswell reported that Petitioner resigned immediately from her employment at Boswell.  IG Ex. 2 at 1-2. 
5. In October 2019, an investigator with the Medicaid Fraud Control Unit interviewed K.S. concerning the January 26, 2018 incident.  K.S. stated that M.S. wanted to get out of bed, but Petitioner told M.S. to sit back down.  M.S. became angry and put his hands on Petitioner’s shoulders.  Petitioner hit M.S. in the face with a “half-full” water bottle “pretty hard.”  IG Ex. 2 at 2.  The investigator also spoke with Petitioner, who denied hitting M.S.  IG Ex. 2 at 2. 
6. On January 24, 2020, the Medicaid Fraud Control Unit investigator signed an affidavit, in the presence of the Justice Court Clerk, charging Petitioner with Misdemeanor Abuse of a Vulnerable Person.  IG Ex. 3 at 1.  The investigator alleged the following (IG Ex. 3 at 1-2): 

[Petitioner] on or about 26th day of January, 2018, . . . did wil[l]fully and unlawfully commit an act, or wil[l]fully omit the performance of a duty, which act or omission contributed to, tended to contribute to, or resulted in the infliction of physical pain, injury, and/or mental anguish upon [M.S.], a vulnerable person as defined by § 43-47-5(q) of the Mississippi Code of 1972, Annotated, as amended, in that [M.S] was then a resident of Boswell Regional Center, a care facility within the meaning of the aforementioned statute, at a time when [Petitioner] was employed by Boswell Regional

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Center, . . . while attending to [M.S.], wil[l]fully and intentionally hit [M.S.] causing physical pain, injury and/or mental anguish to [M.S.]; and, in so doing, committed an act of abuse; and further, in so doing [Petitioner] wil[l]fully failed to adhere to the proper and applicable policies and procedures for handling a combative, agitated, or otherwise uncooperative resident in violation of § 43-47-19(1) and § 43-47-19(2)(a) of the Mississippi Code of 1972, Annotated, as amended.

7. On January 24, 2020, a judge of the Justice Court issued a warrant to arrest Petitioner on the charge of Abuse of a Vulnerable Person.  IG Ex. 3 at 3.
8. In her criminal case, Petitioner was represented by counsel and initially pleaded not guilty.  P. Ex. 1 at 1; P. Ex. 3; IG Ex. 5.
9. On October 23, 2020, Petitioner pleaded guilty to one count of misdemeanor Abuse of a Vulnerable Person.  However, Petitioner’s plea involved an agreement that there would be non-adjudicated probation.  P. Ex. 3; IG Exs. 4-5; see P. Ex. 1.  (“I agreed to make a bargain with [the prosecutor] that I would no longer work with the facility again and that they would not have this on my background for anything.  Currently working on an expungement with my lawyer now that will not go to effect until March 2023.”).
10. On October 30, 2020, the Justice Court issued a Final Judgement and Sentence of the Court, which stated in part (E-File Document Nos. 1a, 19a):  

IT IS, THEREFORE, ORDERED AND ADJUDGED that this court’s acceptance of [Petitioner’s] guilty plea and her sentence are hereby deferred for Misdemeanor Abuse of Vulnerable Adult conditioned upon her successful completion of her non-adjudicated probationary status of six (6) months, payment of court costs on the date of the plea, and payment of a fine in the amount of $250.00 within six (6) months of the date of the plea.  This Court retains jurisdiction of this case and reserves the right to re-sentence [Petitioner], in the Court’s discretion, if she does not successfully complete the non-adjudicated probation as set forth by this Order.

VII.   Conclusions of Law, and Analysis

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in any federal health care program if that individual “has been

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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. 

1. Petitioner was convicted of a criminal offense for purposes of 42 U.S.C. § 1320a-7(i)(4) because the Justice Court ordered Petitioner to receive a deferred adjudication or other arrangement where the judgment of conviction was withheld.

It is undisputed and the record shows that Petitioner pleaded guilty to one count of Misdemeanor Abuse of a Vulnerable Adult and the Justice Court deferred acceptance of that plea and sentencing.  Although Petitioner admits to pleading guilty, Petitioner disputes that she was convicted of a criminal offense because “I have been nonajudicated from the criminal offense.”  P. Br. at 2.  Petitioner further supports her argument, as follows: 

I was informed by the [Attorney General] Office and my attorney at the time that they both agreed that all charges against me would be deferred when I agreed to a plea of guilty it was that I never be convicted of the crime.  As such I would not have this conviction on my record, that the charges would be dismissed and that I would not have any record whatsoever of this case on my record and not convicted.  All records for this when I was notified that among taking the plea that I would not be convicted of any crime.  That is why I had agreed to taking the plea because all charges were going to be dismissed against me.  It was never about to me taking the plea and being found guilty of the crime.  If so, I would of took the case to trail [sic] at that time.  It was that once I agreed to it that all charges would be dismissed and the record for this would not be on my record for any such thing.  That was notified to me by both the [Attorney General] Office and my lawyer at that time.  I have been through the court all ready [sic] and settle[d] any charges dealing with this case, I do not think that I should be excluded from the IOG for five years for this is something that I have already took care of in the courts here in Simpson County.  I am current [sic] in the

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process of having this expunged from my record because of when I turned myself into the courts. 

P. Sur-Reply at 1.  Petitioner specified that her record would be expunged in March 2023.  P. Sur-Reply at 2. 

Petitioner’s position is understandable.  She pleaded guilty in a manner that would not be considered a conviction under state law.  Further, she would eventually be eligible for expungement of her record.  However, for purposes of an exclusion under federal law, an individual is “convicted” of a criminal offense when the individual has entered into a first offender program, deferred adjudication program, or other arrangement where a judgment of conviction is withheld.  42 U.S.C. § 1320a-7(i)(4). 

In this case, the Final Judgement and Sentence of the Court shows that Petitioner pleaded guilty, but the Justice Court deferred both accepting the guilty plea and sentencing Petitioner.  Petitioner needed to successfully complete a non-adjudicated probationary period of six months and pay a fine.  Significantly, the Justice Court made it clear that it retained jurisdiction to re-sentence Petitioner if she did not successfully complete the non-adjudicated probation period.  E-File Document Nos. 1a, 19a.  

The Justice Court’s actions in Petitioner’s criminal case meet the criteria of a deferred adjudication program as described in Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994).  The Travers court stated:  

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). 

Finally, Petitioner states that she will soon have her record expunged.  However, while convictions that are reversed or vacated entitle an individual to retroactive reinstatement from exclusion, expungement does not.  42 C.F.R. § 1001.3005(a)(1); Funmilola Mary Taiwo, DAB No. 2995 at 6-7 (2020).  Therefore, an expungement will not affect the exclusion in this case. 

For the reasons stated above, I conclude that Petitioner was “convicted” of a criminal offense under 42 U.S.C. § 1320a-7(i)(4).

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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.

Because I have concluded that Petitioner was convicted of a criminal offense, I must determine whether Petitioner’s conviction was related to abuse of a patient in connection with the delivery of a health care item or service.  Such a determination “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, [the IG] feel[s] it is most appropriate for the [IG] to exercise its authority to make such determinations on a case-by-case basis.”  57 Fed. Reg. 3298, 3303 (Jan. 29, 1992); see also Westin v. Shalala, 845 F. Supp. 1,446, 1,451 (D. Kan. 1994).  The analysis under § 1320a-7(a)(2) has been described in this way: 

Once the first criterion - conviction - is met, as here, the basic question in a section [1320a-7](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 [1320a-7](a)(2) seek to answer.  It is no different in the context of a section [1320a-7](a)(1) exclusion in which the Board 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 Board’s determination of whether or not the requisite nexus exists.  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 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.

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Robert C. Hartnett, DAB No. 2740 at 7 (2016) (emphases in original) (footnote omitted). 

As an initial matter, I determine that M.S. was a “patient” for purposes of § 1320a-7(a)(2).  The regulations define the term “patient” as follows: 

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.  The charge against Petitioner stated that M.S. was “a vulnerable person,”⁴ and a “resident” of a “care facility.”⁵  IG Ex. 3 at 1.  The regulatory definition for “patient,” as quoted above, indicates that the term “patient” encompasses a “resident” of a long-term care facility.⁶  M.S. was a resident of a facility who was diagnosed with profound mental retardation.  IG Ex. 2 at 1; IG Ex. 4.  Therefore, M.S. was a “patient.” 

The record is also clear that Petitioner’s actions that led to her conviction occurred while she was providing a health care service to M.S.  The charge against Petitioner stated that Petitioner “was employed by Boswell Regional Center” and that the crime occurred “while attending to [M.S.].”  IG Ex. 3 at 1.  The investigation indicated that the incident involved M.S. standing up while Petitioner was trying to ensure that M.S. was properly dressed.  IG Ex. 2.  Therefore, the criminal conviction is connected to the delivery of a health care service. 

Finally, Petitioner’s criminal conviction was related to abuse.  Petitioner was charged with and pleaded guilty to two statutory violations.  Petitioner violated § 43-47-19(1) of the Mississippi Code, which makes it unlawful for any person to abuse, neglect, or exploit any vulnerable person.  Section 43-47-5(a) of the Mississippi Code defines

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“abuse” as a willful act or omission that tends to contribute to or results in the infliction of physical pain or injury to a vulnerable person.  Petitioner also violated § 43-47-19(2)(a) of the Mississippi Code, which makes it unlawful to commit an act or willfully omit the performance of any duty that results in neglect or physical pain. 

The facts underling the charges show that they are related to abuse.  As indicated in the factual findings above, M.S. wanted to get up; however, Petitioner wanted M.S. to be properly dressed before leaving his room.  Petitioner hit M.S. in the face with a bottle that contained water.  By pleading guilty to the charge filed against her, Petitioner admitted that this action “caus[ed] physical pain, injury and/or mental anguish to [M.S.].”  IG Ex. 3 at 1.  These facts constituted abuse under state law and are a sufficient basis to conclude that it is abuse under 42 U.S.C. § 1320a-7(a)(2). 

In opposition to the exclusion, Petitioner asserts that she did not abuse M.S.  P. Br. at 2 (“I have reviewed the evidence for this case and would like to say that I was falsely accused of a crime.”).  Petitioner testified that “when this accident happened as I told the inspector on the case, I did not do anything to harm anyone that day at the Boswell Center. . . . I did not harm anybody with anything on that day.”  P. Ex. 1 at 1.  Petitioner recounted a conversation she had with K.S. in which K.S. allegedly told Petitioner that she did not remember anything that happened on the day of the incident.  P. Ex. 1 at 1. 

Petitioner’s statements that she was falsely accused and that she did not harm anyone are impermissible collateral attacks on her conviction in this case.  “When the exclusion is based on the existence of a criminal conviction . . . by [a] Federal, State or local court . . . the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal [of the exclusion].”  42 C.F.R. § 1001.2007(d).  In short, I am unable to re-decide the outcome of Petitioner’s criminal case and determine that she did not commit the offense with which she was charged.  Consequently, I have no authority to accede to her request “that the accusations be cleared and removed from my records.”  P. Br. at 2.  Instead, if Petitioner believes that her criminal plea and/or the results of her criminal case are incorrect, Petitioner must seek redress in the courts of Mississippi.  See 42 C.F.R. § 1001.3005(a)(1).  

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)(4), 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).  

VIII.   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).

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Endnotes

¹ Petitioner filed a completed “Informal Brief,” which CRD also calls a “short-form brief.”  E-File Document 13.  In E-File, Petitioner described this document as C.H. Exhibit 1; however, Petitioner did not physically mark the brief as C.H. Exhibit 1.  This document is not a substantive exhibit. 

² Petitioner’s written statement is dated October 25, 2022, and is signed by Petitioner.  The statement appears in the form of a letter and commences:  “Dear Attorney.”  Following the signature, Petitioner provided the following information:  “The testimony in the form of an affidavit made under oath or as a written declaration that the witness signs under penalty of perjury (28 U.S.C. § 1746).”  While it is not clear that Petitioner intended this statement to serve as written direct testimony (see P. Br. at 3 (indicating that Petitioner does not have any testimony that she wishes to offer at an in-person hearing)), the text recounts Petitioner’s experiences related to the underlying criminal matter in this case.  As a result, I will treat this document as written testimony.  I note that Petitioner physically marked this document as C.H. Exhibit 1, but described it in E-File as C.H. Exhibit 2.  Consistent with the physical marking on the document, I cite this exhibit as P. Ex. 1.

³ This document is both physically marked and described in E-File as C.H. Exhibit 3.  Therefore, I will cite this exhibit as P. Ex. 3.

⁴ Section 43-47-5(q) of the Mississippi Code defines a “vulnerable person” to include “all residents or patients . . . in a care facility.”

⁵ Section 43-47-5(b) of the Mississippi Code defines “care facility” to include long-term care facilities.

⁶ 42 C.F.R. Part 483 provides requirements for long-term care facilities.  Such facilities include skilled nursing facilities participating in the Medicare program and nursing facilities participating in the Medicaid program.  42 C.F.R. § 483.5 (definition of Facility).