Bridgette Johnson a.k.a. Bridgett Johnson, DAB CR6204 (2022)

DECISION

Petitioner, Bridgette Johnson¹, 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 May 19, 2022.  Petitioner’s exclusion for the 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)).  An additional period of exclusion of five years, for a total minimum exclusion of 10 years,² is not unreasonable based upon the presence of one aggravating factor and no mitigating factors.

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I.  Background

The Inspector General (IG) notified Petitioner by letter dated April 29, 2022, that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for 10 years.  The IG cited section 1128(a)(2) of the Act as authority for Petitioner’s exclusion based on her³ conviction in the Lauderdale County Justice Court, Mississippi (state 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.  The IG cited as an aggravating factor that the acts for which Petitioner was convicted, or similar acts, had a significant adverse physical, mental, or financial impact on a program beneficiary or other individual because her acts resulted in a patient suffering a fracture of the humerus.⁴  IG Exhibit (Ex.) 1 at 1; IG Ex. 2.

On June 23, 2022, Petitioner timely filed a request for hearing (RFH) before an administrative law judge (ALJ).  This case was docketed and assigned to me on June 30, 2022.  A prehearing conference was convened on July 21, 2022.  The substance of the conference is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated July 22, 2022 (Prehearing Order).

The IG filed a motion for summary judgment with a supporting brief (IG Br.) and IG Exhibits 1 through 3 on September 6, 2022.⁵  On October 14, 2022, Petitioner filed her response in the form of a letter (P. Br.) dated October 12, 2022, which is accepted as her argument (DAB E-File #8 at 1-4 (document page counter)) with documents attached that are treated as Petitioner Exhibit (P. Ex.) 1 (DAB E-File #8 at 5-9 (document page counter)).  On November 1, 2022, the IG filed a reply brief (IG Reply).  The IG objected to Petitioner’s arguments, which are addressed in the Analysis section of this decision but not the admission of P. Ex. 1.  IG Exs. 1 through 3 and P. Ex. 1 are admitted and considered as evidence.

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II.  Discussion

1. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights to a hearing by an 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.  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, regardless of 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 has been withheld.  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 no fewer than five years.  42 C.F.R. § 1001.102(a).  The Secretary has published regulations that establish aggravating factors the IG may consider as grounds to extend the period of exclusion beyond the mandatory minimum period, as well as mitigating factors that may be considered only if the IG proposes to impose an exclusion longer than five years.  42 C.F.R. § 1001.102(b)-(c).

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof, i.e., the burden of coming forward with the evidence and the burden of persuasion, on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).

2. Issues

The issues in this case are:

Whether there is a basis for exclusion; and

Whether the length of the proposed exclusion is unreasonable.

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42 C.F.R. § 1001.2007(a)(1).

3. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by the pertinent findings of fact and analysis.

1. Petitioner’s request for hearing was timely 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 IG 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 (1986).

There are no genuine issues of material fact in dispute in this case.  Petitioner was charged with misdemeanor abuse or neglect of a vulnerable adult who was a patient or resident in a nursing home.  It was alleged that she neglected or abused the patient

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because she did not follow the patient’s care plan and lifted him without assistance, resulting in the fracture of his right arm.  IG Ex. 2.  Petitioner pleaded guilty to the misdemeanor charge and was convicted pursuant to her guilty plea.  IG Ex. 3.  Petitioner admits that she failed to follow the resident’s care plan, but she argues that she did not break the patient’s arm.  Petitioner does not dispute that she was convicted 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.  RFH; P. Br.  Petitioner’s arguments must be resolved against her as a matter of law.  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.

1. Facts

The material facts in this case are undisputed.

Petitioner was charged by affidavit with the misdemeanor offense of abuse/neglect of a vulnerable adult in violation of Mississippi law on about April 8, 2019.  The affidavit alleged that Petitioner abused or neglected the vulnerable adult who was a nursing home resident, by failing to follow his care plan and lifting the resident without assistance.  The affidavit further alleged that Petitioner’s failure to follow the resident’s care plan and lifting him without assistance resulted in a fracture of the resident’s right humerus.  IG Ex. 2.

On April 6, 2021, Petitioner pleaded guilty to the misdemeanor charge of vulnerable adult neglect/abuse.  Petitioner was found guilty pursuant to her plea and sentenced to pay a fine.  IG Ex. 3.

Petitioner admits that she was working and laid the resident down with a Hoyer lift, alone and without an assistant.  RFH; P. Br. at 1-2.

2. Analysis

The IG cites section 1128(a)(2) of the Act as authority 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)): 

* * * *

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(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 related to the delivery of a health care item or service.  Congress did not require a felony conviction.

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.  Rather, an ALJ and the Board must determine whether there is a commonsense connection or nexus between the offense and the delivery of a health care item or service.  An ALJ and the Board consider evidence as to the nature of the offense and the facts that were the basis for the conviction.  Kimbrell Colburn, DAB No. 2683 at 5 (2016); Scott D. Augustine, DAB No. 2043 at 5-6 (2006); Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994); Dewayne Franzen, DAB No. 1165 (1990).  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 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 commonsense 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, the undisputed facts show that Petitioner was convicted of a misdemeanor criminal offense based on her guilty plea, the acceptance of her guilty plea, and the entry of a judgment of conviction.  Act § 1128(i).  The charge against Petitioner is, on its face, related to the neglect or abuse of a patient.  The Mississippi Code states “[a]ny person who willfully commits an act or willfully omits the performance of any duty, which act or omission contributes to, tends to contribute to, or results in neglect, physical pain, injury, mental anguish, unreasonable confinement or deprivation of services which are necessary to maintain the mental or physical health of a vulnerable person, shall be guilty of a misdemeanor.”  Miss. Code § 42-47-19(2)(a).  It is undisputed that Petitioner pleaded guilty to the offense as charged and she was convicted pursuant to her plea by the state court.  The state court’s acceptance of her plea establishes before me each element of the charged state offense.  I conclude that the undisputed facts show that Petitioner’s conviction was related to the alleged neglect or abuse of one of Petitioner’s patients.  I

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further conclude that Petitioner’s request for hearing and brief show that the alleged neglect or abuse occurred as charged while Petitioner was working at a healthcare facility.  I conclude there is a nexus between the conduct underlying the offense for which she was charged and convicted and the delivery of a health care item or service.

Petitioner pleaded guilty to and was convicted of the charge that alleged her acts caused the resident to suffer a broken right arm.  Therefore, the state court’s entry of the judgment of conviction resolved the issue of whether Petitioner’s acts caused the fracture of the resident’s arm.  Petitioner’s arguments denying that her acts caused the injury are a collateral attack upon her conviction.  Petitioner may not collaterally attack her conviction in this forum, and I have no authority to review the underlying conviction.  42 C.F.R. § 1001.2007(d).

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 IG has no discretion under the Act not to exclude Petitioner when the elements of section 1128(a)(2) of the Act are satisfied, as they are in this case.

4. Section 1128(c)(3)(B) of the Act requires a minimum exclusion of five years for any exclusion pursuant to section 1128(a) of the Act.

I have concluded that there is a basis to exclude Petitioner pursuant to section 1128(a)(2) of the Act.  Therefore, the IG must exclude Petitioner for a minimum period of five years pursuant to section 1128(c)(3)(B) of the Act.  There is no discretion to impose a lesser period.  The remaining issue is whether it is unreasonable to extend Petitioner’s exclusion by an additional five years for a total period of exclusion of 10 years.

5. The aggravating factor established by 42 C.F.R. § 1001.102(b)(3) exists in this case as alleged by the IG.

The IG notified Petitioner that one aggravating factor is present in this case that justifies extending Petitioner’s exclusion to 10 years.  The IG alleges that the acts for which Petitioner was charged and convicted harmed her patient.  The IG incorrectly alleged in the notice of exclusion that Petitioner’s patient suffered a broken leg.  IG Ex. 1 at 1.  As already noted, the IG notice was in error as the evidence shows that the resident’s right humerus (arm) was fractured rather than his leg.  IG Ex. 2.  The IG’s error however caused no substantial injustice to Petitioner and is harmless error and not prejudicial to Petitioner as the notice sufficiently advised Petitioner of the basis for her exclusion.  42 C.F.R. § 1005.23.

The IG bears the burden in this proceeding to prove the existence of aggravating factors by a preponderance of the evidence.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4 (Petitioner bears the burden for affirmative defenses and mitigating factors and IG bears

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the burden as to all other issues).  Therefore, initially, the issue is whether the IG met her burden as to the aggravating factor cited, i.e., whether the resident suffered a significant adverse impact due to the conduct for which Petitioner was convicted.  The IG relies upon the charging affidavit that alleged that by lifting the resident without any assistance the resident’s right arm was fractured.  IG Ex. 2.  Petitioner does not dispute that the resident suffered a broken arm.  However, Petitioner disputes that her actions caused the broken arm.  RFH; P. Br. at 2.  Petitioner pleaded guilty to the misdemeanor charge that alleged her actions caused the fractured arm.  Petitioner cannot in this proceeding collaterally attack the state court determination of the facts of her underlying conviction, which is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).  Thus, I conclude that the IG has established, and Petitioner has not successfully rebutted, that the aggravating factor authorized to be considered by 42 C.F.R. § 1001.102(b)(3) exists in this case.

6. Petitioner has failed to establish that any mitigating factor authorized to be considered by 42 C.F.R. § 1001.102(c) exists in this case.

If any of the aggravating factors authorized by 42 C.F.R. § 1001.102(b) are cited by the IG to justify an exclusion of longer than five years, as in this case, then mitigating factors may be considered as a basis for reducing the period of exclusion to no fewer than five years.  42 C.F.R. § 1001.102(c).  The only authorized mitigating factors that I may consider are listed in 42 C.F.R. § 1001.102(c): 

(1)  In the case of an exclusion under § 1001.101(a), whether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;

(2)  The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual’s culpability; or

(3)  The individual’s or entity’s cooperation with Federal or State officials resulted in –

(i)  Others being convicted or excluded from Medicare, Medicaid and all other Federal health care programs,

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(ii)  Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses, or

(iii)  The imposition against anyone of a civil money penalty or assessment under part 1003 of this chapter.

Petitioner has the burden to prove by a preponderance of the evidence that there is a mitigating factor for me to consider.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.

Petitioner is remorseful even though she feels she was the scapegoat.  I accept her assertions that she did not intend to hurt the resident and did not observe he was hurt when she placed him in bed.  I recognize her dilemma of having to decide whether to plead guilty to the charged offense.  I also appreciate her years of service as a certified nursing assistant caring for the elderly and her professed love of the job.  Petitioner paid her fine.  She also has the support of a prior employer.  It is also clear that the exclusion will have an adverse impact on her ability to obtain employment in healthcare.  RFH; P. Br.  However, none of these facts are relevant to my determination in this case as I may only consider the mitigating factors established by 42 C.F.R. § 1001.102(c).  I am bound to follow the regulations.  42 C.F.R. § 1005.4(c)(1).

Accordingly, I conclude Petitioner has failed to establish the existence of a mitigating factor that I am authorized to consider under 42 C.F.R. § 1001.102(c).

7. Exclusion for 10 years is not unreasonable in this case.

The regulation states that the ALJ must determine whether the length of exclusion imposed is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1).  The Board, however, has made clear that the role of the ALJ in exclusion cases is to conduct a de novo review of the facts related to the basis for the exclusion, and the existence of aggravating and mitigating factors identified at 42 C.F.R. § 1001.102, and to determine whether the period of exclusion imposed by the IG falls within a reasonable range.  Juan de Leon, Jr., DAB No. 2533 at 4-5 (2013); Craig Richard Wilder, DAB No. 2416 at 8 (2011); Joann Fletcher Cash, DAB No. 1725 at 17 n.6 (2000).  The Board explained that, in determining whether a period of exclusion is “unreasonable,” the ALJ is to consider whether such period falls “within a reasonable range.”  Cash, DAB No. 1725 at 17 n.6.  The Board cautions that whether the ALJ thinks the period of exclusion too long or too short is not the issue.  The ALJ may not substitute his or her judgment for that of the IG and may only change the period of exclusion in limited circumstances.

In John (Juan) Urquijo, DAB No. 1735 (2000), the Board made clear that, if the IG considers an aggravating factor to extend the period of exclusion and that factor is not

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later shown to exist on appeal, or if the IG fails to consider a mitigating factor that is shown to exist, then the ALJ may make a decision as to the appropriate extension of the period of exclusion beyond the minimum.  In Gary Alan Katz, R.Ph., DAB No. 1842 (2002), the Board suggested that when it is found that an aggravating factor considered by the IG is not proved before the ALJ, then some downward adjustment of the period of exclusion should be expected, absent some circumstances that indicate no such adjustment is appropriate.  Thus, the Board has by these various prior decisions significantly limited my authority under the applicable regulations to judge the reasonableness of the period of exclusion.

Based on my de novo review, I conclude that: 

• There is a basis for Petitioner’s exclusion;
• The evidence establishes the one aggravating factor that the IG relied on to impose the 10-year exclusion; and
• Petitioner has failed to establish any mitigating factor that I am permitted to consider under 42 C.F.R. § 1001.102(c).

I conclude that I have no authority to change the period of Petitioner’s exclusion.  I further conclude that a 10-year exclusion is in a reasonable range and not unreasonable considering the existence of one aggravating factor and no mitigating factors.  Accordingly, I conclude that no change in the period of exclusion is necessary or permitted.

III.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for 10 years pursuant to section 1128(a)(2) of the Act, effective May 19, 2022.

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Endnotes

¹ The record reflects that Petitioner is also known as Bridgett Johnson.

² 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 minimum period of exclusion.  Citations are to the 2021 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.

³ The pronouns she and her are used in this decision as Petitioner indicated no other preference.

⁴ IG Ex. 1, the notice of exclusion, refers to a leg fracture rather than an arm fracture. However, the affidavit charging the one count misdemeanor of abuse or neglect of a vulnerable adult shows that it was the patient’s right humerus (an arm bone) that was fractured.  IG Ex. 2.

⁵ The IG filed documents marked IG Exs. 2 and 3 that are partially unreadable.  Therefore, the IG filed unmarked, readable documents that appear in the Departmental Appeals Board Electronic Filing System (DAB E-File) ##6 and 6a.  The documents filed in DAB E-File ##6 and 6a are the documents admitted and considered.