Christina Dawn Hison, CR6302 (2023)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Christina Dawn Hison (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for five years pursuant to section 1128(a)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)).  For the reasons discussed below, it is determined that the IG had a basis to exclude Petitioner from program participation and that the five-year mandatory exclusion period must be imposed.  The IG’s exclusion determination is affirmed. 

    I.  Background and Procedural History

By letter dated October 31, 2022, the IG excluded Petitioner from participating in Medicare, Medicaid, and all Federal health care programs pursuant to section 1128(a)(2) of the Act for five years, effective 20 days from the date of the letter.  IG Exhibit (Ex.) 1.  Petitioner was excluded due to a conviction 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.  The conviction took place in the Ninth Judicial Circuit Court in and for Orange County, Florida.  IG Ex. 1. 

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On November 18, 2022, the Civil Remedies Division (CRD) received Petitioner’s timely request for hearing before an administrative law judge (ALJ) to contest the five-year exclusion imposed by the IG.  On November 21, 2022, the CRD issued an Acknowledgment Notice, my Standing Pre-Hearing Order, and the CRD Procedures. 

A telephonic pre-hearing conference was scheduled for December 14, 2022.  On the date of the conference, Shawnda Atkins, Esq. appeared on behalf of the IG.  No one appeared on behalf of Petitioner.  An Order to Show Cause was issued on December 16, 2022, ordering Petitioner to show cause as to why the case should not be dismissed for abandonment or as a sanction for failure to appear. 

Petitioner filed a response (P. Resp) to the Order to Show Cause on December 30, 2022.  Petitioner explained that she missed the pre-hearing conference because she did not have minutes left on her cell phone.  P. Resp.  Petitioner requested another opportunity to appear.  P. Resp.  The Order to Show Cause was discharged on January 3, 2023.  A pre-hearing conference was scheduled for and was held by telephone on January 24, 2023.  

On January 24, 2023, the CRD issued an order summarizing the pre-hearing conference and setting a briefing schedule. 

On March 1, 2023, the IG filed a brief (IG Br.) in addition to five exhibits (IG Exs. 1-5).  On April 6, 2023, Petitioner filed six documents which will be identified as Petitioner’s exhibits one through six (P. Exs. 1-6).¹   On April 7, 2023, Petitioner filed a letter from an attorney which will be identified as Petitioner’s exhibit seven (P. Ex. 7).  The IG filed a no reply statement on April 21, 2023.  Petitioner filed a brief on April 25, 2023 (P. Br.). 

    II.  Admissions of Exhibits and Decision on the Written Record

In the request for hearing, Petitioner indicated that an in-person hearing was necessary to resolve this matter.  However, in the short-form brief filed on April 25, 2023, Petitioner indicated that an in-person hearing was not necessary and that she did not wish to offer any testimony.  P. Br. at 2.  Additionally, the IG indicated that an in-person hearing was not necessary to decide this matter.  IG Br. at 9. 

As stated in the Prehearing Order, a hearing will be held only if a party asks to cross-examine a witness for whom the opposing party has provided written direct testimony and the witness’s proposed testimony is found to be relevant and non-cumulative.  Here,

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neither party identified witnesses for the opposing party to cross-examine.  Therefore, a hearing is not necessary, and this matter will be decided on the written record.  

Neither party objected to the other party’s exhibits.  Therefore, P. Exs. 1-7 and IG Exs. 1-5 are admitted into evidence. 

    III.  Issue

The issue to be decided is whether the IG had a basis to exclude Petitioner from participation in Medicaid, Medicare, and other federal health care programs under section 1128(a)(2) of the Act.  42 C.F.R. § 1001.2007(a)(1). 

    IV.  Jurisdiction

This tribunal has jurisdiction to adjudicate this case.  42 C.F.R. §§ 1001.2007(a)(1), 1005.2; see also 42 U.S.C. § 1320a-7(f)(1). 

    V.  Findings of Fact

Petitioner was a registered nurse employed as a Nurse Supervisor at Select Specialty Hospital Orlando North (Hospital).  IG Ex. 2 at 2.  On September 14, 2019, Petitioner was on duty as the nurse supervisor.  IG Ex. 2 at 2. 

B.M., a 62-year-old patient, was admitted to the Hospital on June 29, 2019 for care and rehabilitation after suffering a stroke.  IG Ex. 2 at 4.  B.M. was unable to communicate as a result of her health conditions.  IG Ex. 2 at 2.  On September 14, 2019, at approximately 1:00 a.m., Petitioner was alerted that B.M.’s body temperature was dropping.  IG Ex. 2 at 4.  Petitioner notified the physician on duty who ordered sepsis alert protocol and hypothermia treatment per hospital policy.  IG Ex. 2 at 4.  Hospital policy required the use of a warming blanket for patients with a core temperature of less than 96.8 degrees Fahrenheit.  IG Ex. 2 at 4.  However, all warming blankets were in use by other patients.  IG Ex. 2 at 4.  Petitioner, along with another colleague, filled ice pack bags with hot water from a coffee maker.  IG Ex. 2 at 5; P. Ex. 2 at 10.  Petitioner, acting as the nurse supervisor, ordered employees to place the hot water filled bags around B.M.’s body.  IG Ex. 2 at 4; P. Ex. 2 at 10, 11.  The temperature of the water produced by the coffee machine was later determined to be approximately 167 degrees Fahrenheit.  IG Ex. 2 at 8. 

At approximately 3:00 a.m., two nurses checked on B.M. and noticed that the bags filled with hot water that were previously placed around the patient’s body were opened or had leaked.  IG Ex. 2 at 4.  As a result, B.M. suffered third degree burns and blisters all over her body, including her right thigh, scalp, back, neck, abdomen, left and right forearms, left and right upper arms, and breasts.  IG Ex. 2 at 9.  The burns were so severe that B.M.

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was later transported to the Orlando Regional Medical Center Burn Trauma Unit ICU where she underwent multiple surgeries and skin grafting to treat the wounds.  IG Ex. 2 at 4, 9. 

On June 23, 2022, an Amended Information was issued charging Petitioner with Aggravated Abuse of a Disabled Adult, Neglect of a Disabled Adult Causing Great Bodily Harm, and Failure to Report Neglect of a Vulnerable Adult.  IG Ex. 3. 

On June 23, 2022, Petitioner pleaded Nolo Contendere to count three of the Amended Information, Failure to Report Neglect of a Vulnerable Adult, a second-degree misdemeanor, in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida.  IG Ex. 4 at 1. 

On June 28, 2022, the Order of Disposition was corrected to show that adjudication was withheld, and Petitioner was sentenced to one day in jail with credit for one day time served.  IG Ex. 5 at 1. 

    VI.  Legal Authorities

The Secretary of the United States Department of Health and Human Services shall 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).  The Act requires a minimum exclusion period of five years when the exclusion is mandated under section 1320a-7(a).  42 U.S.C. § 1320a-7(c)(3)(B). 

In exclusion cases, the IG has the burden of proving the basis for the exclusion and the existence of any aggravating factors.  42 C.F.R. § 1005.15(c); Standing Pre-Hearing Order ¶ 6.  Petitioner has the burden of proving any affirmative defenses or factors to mitigate the length of the exclusion if aggravating factors have been established.  42 C.F.R. § 1001.102(c); Standing Pre-Hearing Order ¶ 6.  The standard of proof is a preponderance of the evidence, which means a fact is proven if the evidence shows that it is more likely true than not true.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).  In this case, the IG must prove that Petitioner was convicted of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service. 

An excluded individual may request a hearing before an ALJ, but only on the issues of whether the IG had a basis for the exclusion and whether an exclusion longer than the required minimum period is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a), 1005.2(a). 

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    VII.  Analysis and Conclusions of Law

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

In order to prevail, the IG must prove that Petitioner “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); 42 U.S.C. § 1320a-7(a)(2); 42 C.F.R. § 1001.101(b).  Each element is discussed in detail below.  

Under the Act, an individual is considered to have been convicted of a criminal offense “when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court.”  Act § 1128(i)(3) (42 U.S.C. § 1320a-7(i)(3)); see also 42 C.F.R. § 1001.2 (paragraph (c) under the definition of “Convicted”).  In the request for hearing, Petitioner states that she was not convicted of a criminal offense.  P. Req. for Hrg.  However, in her brief, Petitioner states that she was convicted of a criminal offense but does not believe that the conviction requires exclusion.  P. Br. at 1-2.  Petitioner argues that she was not involved in criminal activity and notes that the two felonies that she was initially charged with were dropped.  P. Br. at 2.  The evidence shows that on June 23, 2022, Petitioner pleaded nolo contendere, or no contest, to Failure to Report Neglect of a Vulnerable Adult, a second-degree misdemeanor, in violation of section 415.111(1) of the Florida Statutes.  IG Ex. 4.  On June 28, 2022, the trial court issued an amended disposition accepting Petitioner’s plea and withholding adjudication.  IG Ex. 5.  Therefore, Petitioner has been convicted as defined by the Act and the regulations.  

Next, the IG has the burden of proving that Petitioner’s conviction was related to the neglect or abuse of a patient.  The underlying facts and circumstances surrounding Petitioner’s conviction show clear relation to the neglect or abuse of a patient.  In this case, B.M., a nonverbal patient at the hospital where Petitioner was employed, suffered third degree burns all over her body when ice packs full of hot water were placed around her body.  Petitioner was the nurse supervisor on duty who instructed employees to place the bags of hot water around the patient.  IG Ex. 2 at 4; P. Ex. 2 at 10, 11.  Additionally, Petitioner pleaded guilty to section 415.111(1) of the Florida Statutes which states:  

A person who knowingly and willfully fails to report a case of known or suspected abuse, neglect, or exploitation of a vulnerable adult, or who knowingly and willfully prevents another person from doing so, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. 

Fla. Stat. Ann. § 415.111. 

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Petitioner argues that she was not involved in any criminal activity and notes that the two felonies that she was initially charged with were dismissed.  P. Br. at 2.  Petitioner also notes that she reported the incident to the state after her employment ended and that she did not report the incident sooner due to fear of repercussions from the hospital administration.  P. Br. at 2.  However, whether a conviction is related to abuse or neglect “is a legal determination to be made by the Secretary [for Health and Human Services] 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.”  57 Fed. Reg. 3298, 3303 (Jan. 29, 1992).  It is a question of “whether there is a commonsense 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) (emphasis in original).  The underlying facts surrounding Petitioner’s conviction and the actual language of section 415.111(1) of the Florida Statutes both prove that the conviction was related to the neglect or abuse of a patient. 

Lastly, to prove that Petitioner’s conviction was in connection with the delivery of a health care item or service, the IG must show that there is a nexus between the offense and the delivery of a health care item or service.  Petitioner argues that she should not be excluded because she did not deliver direct care to B.M. and that she was in another patient’s room at the time when B.M. received her injury.  P. Br.  However, the IG is not required to prove that Petitioner provided direct care to the patient.  The regulations require that the conviction be “in connection with” the delivery of a health care item or service.  The Departmental Appeals Board has repeatedly held that the words “in connection with” only require a showing of a minimal nexus between the offense and the delivery of health care item or service.  Hartnett, DAB No. 2740 at 10 (citing Bruce Lindberg, D.C., DAB No. 1386 at 8 (1993)).  It is uncontroverted that B.M., a patient at the Hospital, suffered great injuries, when Petitioner, acting as the nurse supervisor, ordered employees to place hot water filled bags around B.M.’s body when warming blankets were unavailable.  Accordingly, the evidence supports far more than a “minimal showing of a connection” between the offense and the delivery of a health care item or service.  Hartnett, DAB No. 2740 at 7 n.6. 

2. Because it has been determined that Petitioner was convicted of a criminal offense related to the neglect of patients in connection with the delivery of a health care item or service, a five-year exclusion must be imposed. 

In appeals of mandatory exclusions, ALJs are restricted to considering whether there is a legal basis for the exclusion and whether the period of exclusion is reasonable.  42 C.F.R. § 1001.2007(a)(1).  However, where the IG imposes the mandatory minimum exclusion of five years, “the exclusion’s length is reasonable as a matter of law, and the excluded individual may request a hearing only on the issue” of whether there is a basis for exclusion.  Diane Marie Krupka a/k/a Diane Marie Salak, DAB No. 3020 at 2

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(2020); 42 C.F.R. § 1001.2007(a)(2).  In this case, the IG has imposed the mandatory minimum five-year exclusion, so I do not have the authority to review whether the length of the exclusion is reasonable. 

    VIII.  Conclusion

The IG has proven by a preponderance of the evidence that Petitioner was 1) convicted of a criminal offense; 2) the conviction was related to the neglect of a patient; and 3) the offense was in connection with the delivery of a health care item or service.  Therefore, Petitioner shall be excluded from participating in Medicare, Medicaid, and other federal health care programs for the mandatory five-year period.  The five-year exclusion imposed by the IG is AFFIRMED. 

Endnotes

¹  Petitioner did not label her exhibits as required by the Standing Order issued on November 21, 2022.  Petitioner’s exhibits are labeled “documents file 1, 2, 3, etc.”.  However, given the difficulties that Petitioner had in attending the pre-hearing conference and filing documents, Petitioner’s exhibits were accepted as filed.  Petitioner’s documents will retain the number assigned by Petitioner but will be referred to as “Petitioner’s Exhibit” with the corresponding number.