Angelica Jones, DAB CR6201 (2022)

DECISION

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

I.  Procedural History

In a July 29, 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 Hinds County Justice Court, state of Mississippi (Justice Court), 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.  IG Ex. 1 at 1. 

Petitioner timely requested a hearing to dispute the exclusion.  On August 9, 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

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conference on September 7, 2022.  CRD also issued my Standing Prehearing Order (SPO). 

On September 7, 2022, I held a telephonic prehearing conference at which the parties agreed to the dates for the submission of prehearing exchanges.  The substance of the prehearing conference is summarized in my September 8, 2022 Order Following Prehearing Conference and Setting Schedule for Prehearing Submissions. 

On September 16, 2022, the IG submitted a prehearing exchange consisting of a brief (IG Br.) and four proposed exhibits (IG Exs. 1-4).  Petitioner did not timely submit her prehearing exchange; however, after CRD staff contacted her, Petitioner requested additional time to file the exchange.  I granted an extension of time, and on November 7, 2022, Petitioner filed her brief (P. Br.).¹  On November 18, 2022, Petitioner submitted supplemental briefing (P. Supp. Br.).²  On November 21, 2022, the IG filed a reply brief. 

II.  Admission of Exhibits

I admit all of the IG’s proposed exhibits into the record, without objection.  SPO ¶ 12; see 42 C.F.R. § 1005.8(c).  Petitioner did not submit any substantive exhibits. 

III.  Decision on the Written Record

I issue this decision based on the written record because neither party had any witness testimony to provide at an in-person hearing and both parties indicated that an in-person hearing is not necessary.  IG Br. at 6; P. Br. at 2; SPO ¶ 16; see also 42 C.F.R. § 1005.6(b)(5). 

IV.  Issue

Whether the IG has 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. 

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VI.  Findings of Fact

1. In August 2021, Petitioner was employed at Belhaven Senior Care Nursing Home (Belhaven) in Jackson, Mississippi, as a certified nursing assistant.  IG Ex. 2 at 1. 
2. In August 2021, a resident with the initials I.M. was residing at Belhaven.  IG Ex. 2 at 1. 
3. On September 16, 2021, an investigator with the Mississippi Attorney General’s office signed an affidavit charging Petitioner with Misdemeanor Abuse, Neglect, or Exploitation of a Vulnerable Person.  The investigator alleged the following (IG Ex. 2 at 1-2): 

[Petitioner] on or about August 30, 2021 . . . did willfully and unlawfully commit an act, or willfully omitted the performance of a duty, which act or omission contributed to, tended to contribute to, or resulted in neglect, physical pain, injury, mental anguish or deprivation of services necessary to maintain the mental or physical health of [I.M.], a vulnerable person as defined by § 43-47-5(q) of the Mississippi Code of 1972, Annotated, as amended, in that [I.M.] was then a patient or resident of [Belhaven], a care facility within the meaning of the aforementioned statute, at a time when [Petitioner] was employed by [Belhaven] as a Certified Nursing Assistant to-wit:  on said date, [Petitioner], while attending to [I.M.], willfully and intentionally failed to utilize proper protocol in use of equipment to assist [I.M.] and by not following proper procedure and protocol in use of equipment caused physical pain, injury, mental anguish or deprivation of services necessary to maintain the mental or physical health of [I.M.]; and, in so doing, committed an act of neglect; and further, in so doing [Petitioner] willfully failed to adhere to the proper and applicable policies and procedures for handling a patient or resident in violation of § 43-47-19(1) and § 43-47-19(2)(a) of the Mississippi Code of 1972, Annotated, as amended, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi. 

4. On September 16, 2021, a judge of the Justice Court issued a warrant to arrest Petitioner on the charge of Misdemeanor Neglect of a Vulnerable Person and

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indicated that Petitioner must answer the charge of Misdemeanor Abuse of a Vulnerable Person.  IG Ex. 3. 

5. On September 30, 2021, Petitioner pleaded guilty to the charge of Abuse of a Vulnerable Adult.  A Justice Court judge found Petitioner guilty and sentenced Petitioner to six months of unsupervised probation.  The word “non-adjudication” is written at the end of the section stating Petitioner’s sentence.  IG Ex. 4. 

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 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 regulation implementing this statute states 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) because Petitioner pleaded guilty and the Justice Court found Petitioner guilty based on that plea. 

Although Petitioner admits that she pleaded guilty (P. Supp. Br. at 3), Petitioner disputes that she was convicted of a criminal offense.  Petitioner argues that she “received a non-adjudication and [is] in the process of completing the requirements for a dismissal and expungement of the charges.”  E-File Document No. 1b. 

For purposes of exclusion, an individual is considered to have been “convicted” of a criminal offense if any of the following occurred: 

(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;

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(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.

42 U.S.C. § 1320a-7(i).

The record in this case is clear that Petitioner pleaded guilty to one count of Misdemeanor Abuse of a Vulnerable Adult and the Justice Court found Petitioner guilty.  IG Ex. 4.  Therefore, in the absence of any evidence to the contrary, I conclude that Petitioner is considered to have been convicted because the Justice Court made a finding of guilt against Petitioner, and/or Petitioner pleaded guilty and the Justice Court accepted that plea.  CMS Ex. 4; 42 U.S.C. § 1320a-7(i)(2), (3).

In support of Petitioner’s argument that she was not convicted because her case was not adjudicated, the record shows that the Justice Court indicated, in a hand-written notation, that there was a “non-adjudication.”  CMS Ex. 4.  However, the only other clue as to what this means comes from Petitioner’s own statement that her criminal case will be dismissed, and her record will be expunged.  E-File Document No. 1b. 

To the extent that Petitioner pleaded guilty as part of an agreement in which the Justice Court would not enter a final judgment against Petitioner so long as Petitioner properly served her term of probation, then I conclude Petitioner was still convicted of a criminal offense.  Participation in a “deferred adjudication” or “program where judgment of conviction has been withheld” is still considered a conviction for exclusion purposes.  42 U.S.C. § 1320a-7(i)(4). 

Finally, even if Petitioner’s record is expunged, as Petitioner asserted, this does not mean she was not convicted of an offense for exclusion purposes.  While convictions that are reversed or vacated entitle an individual to retroactive reinstatement from exclusion, expungement on its own does not.  42 C.F.R. § 1001.3005(a)(1); Funmilola Mary Taiwo, DAB No. 2995 at 6-7 (2020). 

Therefore, even if I accept Petitioner’s position as to the outcome of her criminal case, it does not mean that she was not “convicted” of a criminal offense for the purposes of imposing an exclusion.  As a result, I conclude that Petitioner was “convicted” of a criminal offense under 42 U.S.C. § 1320a-7(i).

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

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

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

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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 Petitioner pleaded guilty to stated that I.M. was “a vulnerable person,”³ and a “patient or resident” of a “care facility.”⁴  IG Ex. 2 at 1.  The regulatory definition for “patient,” as quoted above, indicates that the term “patient” encompasses a “resident” of a long-term care facility.⁵  Belhaven’s full name includes the words “Nursing Home” in it.  IG Ex. 2 at 1.  Therefore, the record supports the conclusion that I.M. was a patient. 

The record is also clear that Petitioner’s actions that led to her conviction occurred while she was providing health care services for I.M.  The charge Petitioner pleaded guilty to indicated that Petitioner was a certified nurse assistant and the criminal conduct occurred while Petitioner was “attending to” I.M.  IG Ex. 2 at 1.  However, Petitioner failed to follow proper procedure and protocol while using equipment “to assist [I.M.].”  IG Ex. 2 at 1.  Petitioner described the incident as involving the use of a lift to move I.M. from a chair to her bed.  P. Supp. Br. at 1.  Therefore, the criminal conviction was for conduct in connection with the delivery of a health care service.

Finally, Petitioner’s criminal conviction was related to abuse and/or neglect.  Petitioner was charged with “Neglect of a Vulnerable Person” and pleaded guilty to “Abuse of Vulnerable Adult.”  IG Exs. 2-4.  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 “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.

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The facts underlying the charges show that they are related to abuse and/or neglect.  The charge against Petitioner stated that Petitioner was a certified nurse assistant at Belhaven and that she caused physical pain and/or injury to I.M. when she willfully and intentionally failed to follow proper protocols and procedures for using equipment to attend to I.M.  IG Ex. 2 at 1. 

In opposition, Petitioner asserts that she did not abuse or neglect I.M.  According to Petitioner, the incident resulting in criminal charges involved using a lift to transfer I.M. from a chair to a bed in which I.M. apparently received a cut on her leg.  P. Supp. Br. at 1.  At some point during the lift process, the nursing home employee assisting Petitioner was called out of the room.  P. Supp. Br. at 1.  Petitioner said that her “only violation was not having a 2nd person in the room to assist [Petitioner] in moving the resident.”  E-File Document No. 1b.  Petitioner also stated that it was an unintentional accident.  P. Br. at 1-2.  Finally, Petitioner indicated that she would not have pleaded guilty to the charges against her if she realized the repercussions of the plea.  E-File Document No. 1b. 

Petitioner’s statements, that her actions were merely accidently, contradict the charges she pleaded guilty to in her criminal case.  The charges alleged willful and intentional conduct.  Therefore, Petitioner’s arguments are an impermissible collateral attack on her conviction.  “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 the harm that befell I.M. was accidental rather than the product of willful and intentional conduct.  

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. § 1320a‑7(c)(3)(B). 

As indicated above, the record conclusively shows that Petitioner meets the requirements in 42 U.S.C. § 1320a-7(a)(2) for a mandatory exclusion.  Therefore, Petitioner is subject to a five-year exclusion.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2). 

Petitioner requests that I overturn the exclusion because she learned the importance of following all resident care procedures and loves her work and the residents.  Petitioner asks, in the alternative for a shorter exclusion.  E-File Document No. 1b; P. Br. at 2; P. Supp. Br. at 2-3.  However, based on the facts in this case, the law requires Petitioner’s exclusion for five years.  I have no authority to remove or reduce the exclusion.

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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 uploaded each page of the brief individually.  Therefore, the brief appears in the E-Filing System (E-File) under Document Numbers 12-14.

²  Petitioner’s supplemental briefing is E-File Document Number 17.

³  Section 43-47-5(q) of the Mississippi Code defines a “vulnerable person” to include “all residents or patients . . . in a care facility.”

⁴  Section 43-47-5(b) of the Mississippi Code defines “care facility” to include long-term care facilities.

⁵  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).