Honorine Mutamuriza, CR6326 (2023)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Honorine Mutamuriza (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 November 30, 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 Cumberland Superior Court for the State of Maine.  IG Ex. 1. 

Page 2

On February 3, 2023, 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.  Petitioner submitted eight supporting documents along with her request for hearing.  Departmental Appeals Board (DAB) E-Filing Nos. 1a-1h.  On February 6, 2023, the CRD issued an Acknowledgment Notice, my Standing Prehearing Order, and the CRD Procedures. 

At the request of Petitioner’s counsel, a telephonic prehearing conference initially scheduled for February 28, 2023, was rescheduled for March 14, 2023.  The prehearing conference was held on March 14, 2023, and an Order Following Prehearing Conference and Setting Briefing Schedule (Prehearing Order) was issued the same day.  On April 25, 2023, the IG filed a brief (IG Br.) and six exhibits (IG Exs. 1-6).  On May 26, 2023, Petitioner filed a brief (P. Br.) and six exhibits (P. Exs. 1-6).¹   On June 7, 2023, the IG filed a reply brief (IG Reply). 

II.    Admissions of Exhibits and Decision on the Written Record

Petitioner did not object to the IG’s proposed exhibits.  Therefore, IG Exs. 1-6 are admitted into the record.  The IG objected to P. Exs. 1-6, arguing that the exhibits “are irrelevant, immaterial, and improperly offered in support of the impermissible collateral attack.”  IG Reply at 1.  

To the extent that these documents serve a purpose beyond what the IG addressed, i.e., for the purpose of illustrating the lack of relation between any criminal conviction and the delivery of a health care item or service, they are relevant.  The admissibility of the written testimony is distinct from the weight given to the information presented in the documents.  Because the documents are relevant to examining the nature of Petitioner’s criminal offense, P. Exs. 1-6 are admitted into evidence. 

Petitioner indicated that an in-person hearing is necessary and identified two witnesses, including Petitioner, who would offer testimony if this matter were to proceed to hearing.  P. Br. at 8.  The IG objected to Petitioner’s request for an in-person hearing and did not request to cross-examine any of Petitioner’s proposed witnesses.  IG Reply at 4-5.  Therefore, Petitioner’s request for an in-person hearing is denied, and this matter will be decided on the written record.  See Civ. Remedies Div. P. § 19(d). 

III.    Issue

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)(2). 

Page 3

IV.    Jurisdiction

This tribunal has jurisdiction to adjudicate this case.  42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2; see also 42 U.S.C. § 1320a-7(f)(1). 

V.    Findings of Fact

Petitioner was employed as a Direct Service Provider by Bridge Support Services (BSS) at a group home for “high needs individuals with intellectual disabilities” in Gray, Maine.  IG Ex. 6; see P. Ex. 6; Req. for Hrg. at 1-2.  As a Direct Service Provider, Petitioner provided direct supervision and support services to residents of the group home.  On November 11, 2020, Petitioner was the sole employee on duty for the overnight shift. 

T.M.²  is a 22-year-old man with diagnoses including Autism Spectrum Disorder, intellectual disability, anxiety, and depression.  Req. for Hrg. at 2; P. Ex. 2 at 3.  T.M. resides in a two-person adult group home, with 2:1 staffing from 8:00 am – 12:00 am, and 1:1 staffing from 12:00 am – 8:00 am.  P. Ex. 2 at 3. 

A functional assessment, conducted on various dates in 2020, notes that T.M. exhibited challenging behaviors, including elopement. 

[T.M.] is hypervigilant in the sense that he can intuit when staff is distracted or otherwise unavailable and he takes advantage of these opportunities.  He typically leaves at night or in the early hours of the morning, when the staffing ratio is 1:1, or – due to unforeseen circumstances – less than 1:1 staffing ratio. 

P. Ex. 2 at 1-2.  Due to past instances of elopement, and T.M.’s strong inclination to elope, BSS implemented staff checks every 15 minutes. 

On November 11, 2020, at approximately 6:04 am, a driver, R.B., called the police to report a man (later identified as T.M.) in the middle of a road.  R.B. stated, “it was foggy out, [T.M.] was in the center of the road and acting like he wanted [R.B.] to hit him, and [R.B.] believed had he not hit his brakes, he would have killed [T.M.].”  A deputy was dispatched to the area, and located T.M.  The deputy was initially unable to understand T.M., but eventually managed to contact T.M.’s sister, and learned that T.M. was supposed to be in his group home, approximately 1.1 miles away.  IG Ex. 6 at 1. 

Around 6:45 am, the deputy returned T.M. back to the group home.  IG Ex. 6 at 2.  The deputy knocked several times before Petitioner answered the door.  When Petitioner

Page 4

finally answered the door, she stated that “she was showering, was unaware T.M. was missing, and had last laid eyes on him 30 minutes prior.”  However, the deputy stated that Petitioner “was dressed” and did not appear to have just showered.  IG Ex. 6 at 4. 

A Reportable Event note entered by the Director of Residential Services on November 12, 2020, states: 

Staff checked on TM throughout the night as usual.  TM was awake at 6:15 AM and in his room watching TV.  [Petitioner] went downstairs to do laundry.  [Petitioner] said that she was watching the main entrance but did not see TM leave the house.  However, she heard the doorbell ring around 6:45 AM and was greeted by TM and a sheriff’s deputy, who said that he was on his way home and found TM standing by the mailbox at the end of the Gracewoods Lane. . . .  Because TM’s housemate is at a rehab center until 11/18, there is only one overnight staff and TM. . . .

IG Ex. 6 at 2. 

On May 7, 2021, a grand jury issued an indictment, charging Petitioner with Endangering the Welfare of a Dependent Person in violation of 17-A M.R.S. § 555(1)(8) (Class C), and Falsifying Private Records, in violation of 17-A M.R.S. § 707(1)(A) (Class E).  DAB E-Filing No. 1f. 

On April 29, 2022, Petitioner pleaded guilty to count 3 of the March 10, 2022 Information charging Petitioner with Endangering the Welfare of a Dependent Person, in violation of 17-A M.R.S. § 555(1)(A).  IG Exs. 3-4.  The State of Maine dismissed counts 1 and 2 of the indictment. 

Count 3 alleged that: 

On or about November 11, 2020 in Gray, Cumberland County, Maine, [Petitioner] did recklessly endanger the health, safety, or mental welfare of [T.M.], a dependent person. 

IG Ex. 3.  Petitioner’s plea was accepted by the State of Maine, and Petitioner entered into a Deferred Disposition Agreement (Agreement).  The Agreement imposed certain requirements on Petitioner, including the requirement to complete a state-approved patient safety course.  If Petitioner successfully completed the requirements set forth in the Agreement, Petitioner’s plea could be withdrawn.  IG Ex. 4 at 2. 

Page 5

On November 4, 2022, the State of Maine issued a Notice of Dismissal, dismissing count 3 of the March 10, 2022 Information, noting that Petitioner successfully complied with the court’s order deferring disposition and sentencing.  IG Ex. 5. 

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 mandatory minimum length of an exclusion under section 1128(a)(2) is five years.  Act § 1128(c)(3)(B); 42 U.S.C. § 1320a-7(c)(3)(B). 

Three elements must be proven to support a mandatory exclusion under section 1128(a)(2):  (1) whether Petitioner was convicted of a criminal offense; and if so, (2) whether the conviction related to the neglect or abuse of a patient or patients; and (3) whether the offense was committed 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). 

The IG has the burden of proving all elements listed above by a preponderance of the evidence, meaning 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). 

VII.    Analysis and Conclusions of Law

1. Petitioner was convicted of a criminal offense.³ 

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. 

[A]n individual or entity is considered to have been “convicted” of a criminal offense—

(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;

Page 6

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(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. 

Act § 1128(i) (emphasis added); 42 U.S.C. § 1320a-7(i); 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 any of the crimes of which she was charged.”  Req. for Hrg. at 1.  Instead, Petitioner notes that she “entered into a deferred disposition agreement with the State of Maine whereby she would abide by the conditions of the agreement, and upon a successful completion of the deferment period, all charges would be dismissed without conviction. . . .  [O]n November 4, 2022 the State filed for a full dismissal of Petitioner’s charges.”  Req. for Hrg. at 3-4.  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 her conviction was not for a crime related to the abuse or neglect of a patient.  P. Br. at 2. 

The evidence shows that on April 29, 2022, Petitioner pleaded guilty to Endangering the Welfare of a Dependent Person and the State court accepted Petitioner’s plea.  As a part of Petitioner’s plea agreement she entered into a deferred adjudication program, which constitutes a conviction for purposes of section 1128(a)(2) of the Act.  See Esohe Agbonkpolor, DAB No. 3002 at 5-7 (2020) (finding that deferred adjudications “irrevocably [commit a petitioner] to a plea of guilty or no contest which cannot be unilaterally withdrawn.”).  Therefore, Petitioner’s guilty plea to Endangering the Welfare of a Dependent Person is considered a conviction under section 1128(a)(2) of the Act.  See 42 U.S.C. § 1320a-7(i)(3)-(4); 42 C.F.R. § 1001.2. 

2. Petitioner’s conviction related to neglect of a patient. 

Section 1128 does not provide a definition for neglect.  When a word is undefined in the Act or regulations, DAB decisions have utilized the common and ordinary meaning of the word.  Robert C. Hartnett, DAB No. 2740 at 9 n.7 (2016) (“The common and ordinary meaning of the word ‘neglect’ is ‘to give little attention or respect to’ or ‘to leave undone or unattended to especially through carelessness.’”) (citing http://www.merriam-webster.com/dictionary/neglect); Summit Health Ltd., DAB No. 1173 at 8 (1990)

Page 7

(“Giving these unambiguous terms their common and ordinary meaning reasonably fulfills” the purpose and intent of section 1128(a)(2)). 

In this case, the underlying facts and circumstances surrounding Petitioner’s conviction show clear relation to neglect of a patient.  Petitioner was a Direct Service Provider working in a group home, providing “supervision and support services to [T.M.], a 22-year-old man diagnosed with Autism Spectrum Disorder, Intellectual Disability, and Anxiety and Depression.”  Req. for Hrg. at 2.  On November 11, 2020, while under Petitioner’s care, T.M. eloped from the group home, walked 1.1 miles down the road, and stood in the middle of a street.  The witness who reported seeing T.M. in the middle of the street stated that had he not hit his brakes in time, he would have accidentally killed T.M.  IG Ex. 6 at 1. 

Petitioner argues that she never “knowingly endangered the welfare of T.M.,” and if there was any neglect, it was caused by her employer.  P. Br. at 6.  Petitioner also argues that T.M.’s elopement was the result of an unexplained staffing shortage; she was not watching T.M. at the moment he disappeared because she was occupied with “doing laundry” for T.M.; and T.M. eloped using a door that was supposed to be off-limits to residents.  P. Br. at 6-7. 

Despite Petitioner’s arguments, it is undisputed that Petitioner pleaded guilty to, and was convicted of (for the purposes of section 1128(a)(2) of the Act), Endangering the Welfare of a Dependent Person, in violation of 17-A M.R.S. § 555(1)(A), which states:  

A person is guilty of endangering the welfare of a dependent person if: 

A.  The person recklessly endangers the health, safety or mental welfare of a dependent person.  Violation of this paragraph is a Class D crime;

17-A M.R.S. § 555(1)(A). 

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.”  Hartnett, DAB No. 2740 at 7 (emphasis in original). 

The DAB has discussed in detail the law applicable to this analysis: 

Page 8

ALJs are not limited to considering the bare elements or labels of the criminal statutes under which the individual was convicted.  Summit S. Shah, DAB No. 2836, at 7 (2017) (“The Board has long held . . . that an ALJ is free to look beyond the narrow constructs of a state’s criminal statutes.”); Narendra M. Patel, DAB No. 1736, at 10 (2000) (Congress did not intend to limit the [IG’s] exclusion authority through “dependence on the vagaries of state criminal law definitions or record development”), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003); Berton Siegel, D.O., DAB No. 1467, at 4 (1994) (“[I]t is not the labeling of the offense under the state statute which determines whether the offense is program-related”).  Rather, ALJ’s [sic] may look at “evidence as to the nature of an offense” such as “facts upon which the conviction was predicated.”  Id.; Patel at 10 (“[T]he conviction is not required to be for patient neglect or abuse, but rather the circumstances that surrounded the actual offense need only show a relation to the neglect or abuse of a patient”); Rudman at 9 (an ALJ may consider “evidence regarding the nature of the offense, rather than the state’s labeling of the admitted offense, to determine whether it involved conduct warranting exclusion”). 

Funmilola Mary Taiwo, DAB No. 2995 at 8 (2020). 

Despite Petitioner’s contention that T.M.’s elopement on November 11, 2020, was not the result of neglect on her part, the underlying facts and circumstances surrounding her Endangering the Welfare of a Dependent Person conviction, and the actual language of 17-A M.R.S. § 555(1)(A), both show that the conviction was related to the neglect or abuse of a patient. 

Petitioner was charged with Endangering the Welfare of a Dependent Person based on allegations that she failed to monitor T.M. as required, failed to notice that T.M. had eloped from the group home and was missing for almost an hour, and during the time that he was missing T.M. was placed in an extremely dangerous situation when he stood alone in the middle of a street on a foggy morning.  These facts all support a relation to the neglect of a patient. 

Page 9

3. Petitioner’s offense was committed in connection with the delivery of a health care item or service. 

Lastly, to prove that Petitioner’s conviction was committed 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 her employer was responsible for the staffing shortage that led to T.M.’s elopement.  P. Br. at 3-4.  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 Petitioner was a Direct Service Provider, providing “supervision and support services” to an individual with autism and an intellectual disability.  Req. for Hrg. at 2.  Additionally, Petitioner was the sole staff-member on duty at the group home when T.M. eloped, and she did not notice T.M. had eloped because she “went downstairs to do laundry for [T.M.], a task that he requires total assistance with.”  P. Br. at 4.  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. 

4. Because it has been determined that Petitioner was convicted of a criminal offense related to the neglect of a patient 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, DAB No. 3020 at 2 (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. 

Page 10

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 committed 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  P. Exs. 4 and 5 were both filed in two parts but constitute one exhibit each. 

²  The individual is referred to by the initials T.M. to safeguard the individual’s privacy. 

³  The conclusions of law are set forth in bold headings, followed by pertinent analysis.