Sadia Motunrayo Gyimah, DAB CR6344 (2023)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Petitioner, Sadia Motunrayo Gyimah, from participation in Medicare, Medicaid, and all other federal health care programs based on Petitioner’s 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.  For the reasons discussed below, I conclude that the IG has a legitimate basis for excluding Petitioner because she was convicted of “Offensive Touching” that was in connection with the delivery of a health care item or service.  An exclusion for the minimum period of five years is mandatory pursuant to 42 U.S.C. § 1320a-7(c)(3)(B).

I.  Background

By letter dated March 31, 2023, the IG notified Petitioner that, pursuant to section 1128(a)(2) of the Social Security Act (Act), 42 U.S.C. § 1320a-7(a)(2), she was being excluded from participation in Medicare, Medicaid, and all federal health care programs for a minimum period of five years, effective 20 days from the date of the letter.  IG Ex. 1

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at 1.  In the letter, the IG informed Petitioner of the factual basis for the exclusion, stating:

The [IG] is imposing this exclusion under section 1128(a)(2) of the Act, due to your conviction (as defined in section 1128(i) of the Act) in the Superior Court, State of Delaware, 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.  [See] 42 U.S.C. § 1320-7(a)(2), 42 C.F.R. [§] 1001.101(b).  

IG Ex. 1 at 1.  The IG informed Petitioner that the exclusion was for “the minimum statutory period of 5 years.”  IG Ex. 1 at 1; see 42 U.S.C. § 1320a-7(c)(3)(B).

Petitioner, through counsel, timely filed a request for hearing before an administrative law judge on May 12, 2023.  On May 16, 2023, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order).  On May 31, 2023, I convened a telephonic pre-hearing conference pursuant to 42 C.F.R. § 1005.6, during which I clarified the issues of the case and established a schedule for the submission of pre-hearing briefs and exhibits.  That same day, I issued an order summarizing the pre-hearing conference.

The IG filed a brief along with six proposed exhibits (IG Exs. 1-6).  Petitioner filed a brief (P. Br.) and one exhibit (P. Ex. 1).  The IG filed a reply brief.

Because neither party has submitted the written direct testimony of any witnesses, a hearing is unnecessary for the purpose of cross-examination of any witnesses.¹  Pre‑Hearing Order §§ 14-16; see Lena Lasher, DAB No. 2800 at 4 (2017) (discussing that when neither party submits written direct testimony as directed, “no purpose would be served by holding an in-person hearing . . . .”), aff’d, Lasher v. Dep’t of Health & Human Servs., 369 F. Supp. 3d 243 (D.D.C. 2019).  I will decide this case on the written submissions and documentary evidence.

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II.  Issues

Whether there is a basis for exclusion, and, if so, whether the length of the exclusion that the IG has imposed is mandated by law.  42 C.F.R. § 1001.2007(a)(1)(i), (2).

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and Analysis²

1.  Because Petitioner was convicted of offensive touching that was committed on a patient/resident, and the conviction was for a criminal offense relating to the neglect or abuse of a patient in connection with the delivery of a health care item or service, an exclusion from Medicare, Medicaid, and all other federal health care programs for a minimum of five years is mandated.

Section 1128(a)(2) of the Act requires that an individual or entity convicted of “a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service” be excluded from participation in federal health care programs.³  An individual who is excluded under section 1128(a)(2) must be excluded for a period of not less than five years.  42 U.S.C. § 1320a-7(c)(3)(B).

A March 5, 2020 Adult Complaint and Affidavit charged that Petitioner committed the following four offenses:  “knowingly/recklessly” abuse, mistreatment, or neglect of a patient or resident in a facility (two counts); offensive touching; and the commission of a crime against a vulnerable adult.  IG Ex. 2 at 2.  In an affidavit in support of the complaint, a detective detailed an incident that occurred on or about April 1, 2019, that was the basis for the criminal complaint:

[The witness] said she was having difficulty changing resident [L.B.] and asked [Petitioner] for assistance.  [The

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resident] was not being compliant, at which time [Petitioner] pushed [the resident] into a chair, held one of her wrists, shook her, and said “if you ever hit me again, I’ll slap you in the face a million times.”  [The witness] said [Petitioner] smacked [the resident] across her face, which [the witness] described as a hard smack and [the witness] said [the resident] was stunned.  [The witness] said [the resident] was wearing glasses and when [Petitioner] smacked her, it knocked her glasses sideways on her face from the impact of the smack.

IG Ex. 2 at 3.

A grand jury returned a four-count indictment charging that Petitioner committed the four misdemeanor offenses that were the subject of the aforementioned criminal complaint.⁴  IG Ex. 3.

On March 2, 2022, with the assistance of counsel, Petitioner entered into a plea agreement.  IG Ex. 4 at 1.  Petitioner agreed that she would plead guilty to the offense of offensive touching and that a nolle prosequi would be entered for the three other counts charged in the indictment.  IG Ex. 4 at 1; see IG Ex. 3 at 2 (Count 3, Offensive Touching, Del. Code tit. 11, § 601(a)(1)).  Petitioner “acknowledge[d] that the conviction will be reported to the Adult Abuse Registry and the United States Office of Inspector General.”  IG Ex. 4 at 1.  The plea agreement included a sentence of probation before judgment, and that probation may be discharged upon payment of a $50 fine.  IG Ex. 4 at 1; IG Ex. 5 at 1.

Petitioner does not dispute that she was convicted of the offense of offensive touching.  P. Br. at 2 (“[Petitioner] pleaded guilty to the charge of offensive touching.”).  Nor does Petitioner dispute that the offense was committed during the course of her employment as a registered nurse who was providing care to a patient/resident.  P. Br. at 1 (“During her shift, she . . . [was] assisting a patient into the bathroom.”).  The evidence of record demonstrates that Petitioner has a criminal conviction for offensive touching, and the offense was committed in connection with the delivery of a health care item or service.  42 U.S.C. § 1320a-7(a)(2).  The question I must resolve is whether Petitioner’s conviction for offensive touching relates to abuse or neglect.  42 U.S.C. § 1320a-7(a)(2).

Petitioner argues that “[w]hile [her] actions may have been potentially offensive or alarming to the patient, as she recognized when she pleaded guilty to Offensive Touching, they do not amount to abuse.”  P. Br. at 4.  Petitioner further claims that

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“[t]ouching someone with the likely result of causing offense or alarm does not equate to abuse under any definition.”  P. Br. at 4.

The Departmental Appeals Board (DAB) has explained that the basis for a mandatory exclusion need not be limited to the four corners of criminal conviction, stating:

[The petitioner] assumes that because petitioners in certain exclusion cases specifically admitted to the facts of their criminal wrongdoing in a plea agreement and/or plea colloquy that means that evidence of such an admission is required to support a section 1128(a)(2) exclusion.  That some petitioners made express admissions of facts in court documents presented in the later exclusion proceedings does not mean, however, that the only way of establishing the elements of a section 1128(a)(2) exclusion is through such evidence.

Robert C. Hartnett, DAB No. 2740 at 10 (2016).  The DAB has discussed that section 1128(a)(2) “simply states that the offense involved must ‘be related’ to patient neglect or abuse.  Hence, the 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.”  Narendra M. Patel, M.D., DAB No. 1736 at 8 (2000), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003) (emphasis added).  The DAB stated that “nothing in section 1128(a)(2) . . . requires that the necessary elements of the criminal offense must mirror the elements of the exclusion authority, nor that all statutory elements required for an exclusion must be contained in the findings or record of the state criminal court.”  Id. at 10.  Further, the DAB explained that “the statutory language says nothing about what evidence of the nature and circumstances surrounding the offense itself may be considered to determine if the individual’s criminal conduct included the elements necessary for a mandatory exclusion[,]” and it saw “no reason to assume that Congress intended to narrowly proscribe the [IG’s] exclusion authority by dependence on the vagaries of state criminal law definitions or record development.”  Id.  The DAB has also stated, in a case involving a conviction for disorderly conduct, that “ALJs may, among other things, look to ‘the factual allegations underpinning the offense with which a petitioner was charged and which form the basis of the requisite conviction.’”  Shelia Ann Reed, DAB No. 3059 at 15 (2022) (citations and emphasis omitted).  Similarly, in another case involving a conviction for disorderly conduct that was the basis for a section 1128(a)(2) exclusion, the DAB stated that “[w]hen determining whether a criminal offense provides a valid basis to exclude under section 1128(a)(2), [ALJs] are not limited to considering the bare elements or labels of the criminal statutes under which the individual was convicted,” and “may look at ‘evidence as to the nature of an offense’ such as ‘facts upon which the

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conviction was predicated.’”  Funmilola Mary Taiwo, DAB No. 2995 at 8 (2010) (citations omitted).

With that framework in mind, the factual basis underpinning Petitioner’s conviction for offensive touching unquestionably demonstrates that her offense was, at a minimum, related to the neglect or abuse of a resident for whom she was providing nursing care.  According to the Delaware Code, a person commits offensive touching when she “[i]ntentionally touches another person either with a member of his or her body or with any instrument, knowing that the person is thereby likely to cause offense or alarm to such other person.”  Del. Code tit. 11, § 601(a)(1).  When a nurse intentionally touches a resident in such a manner that she is likely to cause that individual offense or alarm, such an action, at a minimum, relates to neglect or abuse. 

If there was any doubt that the conviction, in and of itself, relates to neglect or abuse, Petitioner has conceded the conduct that is the basis for her conviction, acknowledging that she “grabbed” an 88-year-old resident and said she would “slap” the resident “one million times” if the resident hit her again.  Compare P. Ex. 1 (consent agreement outlining the April 2019 incident), with IG Ex. 2 at 3 (criminal complaint detailing the same conduct).  Further, Petitioner agreed to the following “condition” in her plea agreement:  “[Petitioner] acknowledges that the conviction will be reported to the Adult Abuse Registry and the United States Office of Inspector General.”  IG Ex. 4 at 1.  Petitioner cannot plausibly claim her conviction is not related to the neglect or abuse of a patient when she explicitly agreed, as a condition of her plea agreement, that the conviction would be reported to both the Adult Abuse Registry⁵ and the IG.

Although Petitioner argues that “[t]he conviction in this case did not relate to the neglect or abuse of any patient,” and “[t]he only admitted actions and those that formed the basis of her conviction do not amount to abuse” (P. Br. at 2, 6), such a claim conflicts with the evidence she submitted.  See P. Ex. 1 (consent order).  In a consent order she entered into with the Delaware Board of Nursing, Petitioner conceded that she “grabbed” an 88-year-old resident⁶ and “said she would slap [her] one million times if [the resident] hit her again.”  P. Ex. 1 at 3.  Petitioner also conceded that she was “guilty of unprofessional conduct . . . in that she threatened violence, verbal abuse, or physical abuse of a patient.”  P. Ex. 1 at 3.  Petitioner has admitted the conduct that is the basis for her criminal

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conviction, and she has conceded that this conduct amounted to a threat of violence, verbal abuse, or physical abuse.  P. Ex. 1 at 3.  There is no merit to Petitioner’s claim that her conviction “did not relate to the neglect or abuse of any patient.”  See P. Br. at 2, 6.

Because Petitioner’s criminal conviction relates to the neglect or abuse of patient in connection with the delivery of a health care item or service, a mandatory five-year exclusion is mandated.  42 U.S.C. § 1320a-7(a)(2), (c)(3)(B).  Congress, through enactment of the Act, determined that an individual who has been convicted of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service must be excluded from federal health care programs for no less than five years, and it afforded neither the IG nor an administrative law judge the discretion to impose an exclusion of a shorter duration.  42 U.S.C. § 1320a-7(c)(3)(B).  I cannot shorten the length of the exclusion to a period of less than five years because I do not have authority to “[f]ind invalid or refuse to follow Federal statutes or regulations.”  42 C.F.R. § 1005.4(c)(1).  I therefore agree with the IG that an exclusion for a minimum period of five years is mandated.

V.  Effective Date of Exclusion

The effective date of the exclusion, April 20, 2023, is established by regulation, and I am bound by that provision.  42 C.F.R. §§ 1001.2002(b), 1005.4(c)(1).

VI.  Conclusion

For the foregoing reasons, I affirm the IG’s decision to exclude Petitioner from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of five years, effective April 20, 2023.

Endnotes

¹ In her brief, Petitioner offered to provide testimony if should I “find that [her] testimony concerning the facts underlying her conviction is necessary.”  P. Br. at 6.  Section 9 of the Pre-Hearing Order plainly states that “[i]f a party will be presenting witnesses, the party’s pre-hearing exchange will include a list of all proposed witnesses and the written direct testimony of each witness (other than expert witnesses).”

² My findings of fact and conclusions of law are set forth in italics and bold font.

³ While there are slight differences in the wording of Section 1128 of the Act and its codification at 42 U.S.C. § 1320a-7, the two authorities are substantively identical and I refer to them interchangeably.  I further note that the Secretary of the Department of Health and Human Services (Secretary) has delegated to the IG the authority “to suspend or exclude certain health care practitioners and providers of health care services from participation in these programs.”  48 Fed. Reg. 21,662 (May 13, 1983); see also 42 C.F.R. § 1005.1.

⁴ The date of the indictment is illegible.  IG Ex. 3 at 1.

⁵ “The name of any person found, after investigation by the Department of Health and Social Services, to have committed adult abuse, neglect, mistreatment or financial exploitation shall be entered on the Adult Abuse Registry; provided, however, that such person may request an administrative hearing pursuant to Department of Health and Social Services regulations before such entry becomes final.”  Del. Code tit. 11, § 8564(b).

⁶ The consent order also refers to the victim as a “patient/resident.”  P. Ex. 1 at 2.