Satonya Hendon, DAB CR6371 (2023)

DECISION

Petitioner, Satonya Hendon, 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 January 19, 2023.  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)).¹

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I.  Background

The Inspector General (IG) notified Petitioner by letter dated December 30, 2022, that she ² was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  The IG cited section 1128(a)(2) of the Act as authority for Petitioner’s exclusion based on her conviction in the Maumee Municipal Court, Lucas County, Ohio (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.  IG Exhibit (Ex.) 1.

On February 25, 2023, Petitioner timely filed a request for hearing (RFH) before an administrative law judge (ALJ).  This case was docketed and assigned to me on March 6, 2023.  A prehearing conference was convened on April 4, 2023.  The substance of the conference is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence dated April 4, 2023 (Prehearing Order).

The IG filed a motion for summary judgment with a supporting brief (IG Br.) and IG Exhibits 1 through 4 on May 17, 2023.  On August 4, 2023, Petitioner filed an opposition to the IG’s motion for summary judgment with a supporting brief (P. Br.), and no exhibits.³  The IG waived a reply on August 17, 2023.  Petitioner did not object to IG Exs. 1 through 4 and they are admitted and considered as evidence.

II.  Discussion

A.  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

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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).

B.  Issues

The Secretary has by regulation limited my scope of review to two issues:

Whether the IG has a basis for excluding an individual or entity from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the proposed exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).  However, if the IG imposes the five-year minimum period of exclusion authorized for a mandatory exclusion under section 1128(a)(2) of the Act, then there is no issue of whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(2).  The IG proposes to exclude Petitioner for five years, the minimum authorized period.  Therefore, the length of the proposed exclusion is not at issue in this case.

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

My conclusions of law are set forth in bold and followed by the pertinent findings of undisputed 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 convicted by the state court.  The facts that show that the offense of which Petitioner was convicted by the state court were related to the neglect of a nursing home resident in connection with the delivery of a health care item or service, are undisputed.  The undisputed facts establish a basis for Petitioner’s exclusion pursuant to section 1128(a)(2)

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of the Act.  Petitioner’s defense that she was not convicted of an offense related to neglect or abuse in connection with the delivery of a health care item or service must be resolved against her as a matter of law.  The reasonableness of the period of exclusion is not at issue as the IG imposed the minimum period of five years as required by the Act.  I conclude that summary judgment in favor of the IG is appropriate.

3.  Petitioner’s exclusion is required by section 1128(a)(2) of the Act.

a.  Facts

The parties were advised by the Prehearing Order, ¶ 8, that a fact alleged in briefing and not specifically denied, may be accepted as true for purposes of a motion or cross-motion for summary judgment.  The parties were also advised that any evidence is considered admissible and true unless specific objection is made to its admissibility and accuracy.

The material facts in this case are undisputed.  Petitioner does not deny that:

On February 25, 2020, Petitioner was in training as a licensed practical nurse at her employer, Browning Masonic Community, Inc., an assisted living facility (Browning).  IG Ex. 4 at 1-2.

On February 25, 2020, a resident of Browning, RM, eloped from Browning, by exiting the Browning building and suffered physical harm as a result.  IG Ex. 4 at 2, 5.

The elopement of RM was investigated by Special Agent Cook with the Ohio Medicaid Fraud Control Unit.  IG Ex. 4 at 2.

During an interview, Petitioner told Special Agent Cook that she and another nurse went outside Browning to look for RM and that they checked all rooms and the entire building.  IG Ex. 4 at 3.

In a memorandum dated December 1, 2021, representatives of the Health Care Fraud Section of the office of the Ohio Attorney General recommended that Petitioner be charged with one count of “falsification” during the period February 25, 2020 through August 20, 2021, in violation of Ohio Rev. Code Ann. § 2921.13(A)(3) for her statement to Special Agent Cook.  It was specifically alleged, that Petitioner stated nurses went outside looking for RM and that was not consistent with video surveillance.  The memorandum did not recommend that Petitioner be charged with neglect of a patient.  IG Ex. 4 at 1, 6; P. Br. at 2 (document page counter).

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A criminal complaint signed by Special Agent Cook was filed against Petitioner in the state court on February 23, 2022.  The complaint alleged that Petitioner, on or about February 25, 2020, did knowingly make a false statement or knowingly swear or affirm the truth of a false statement previously made to mislead a public official performing his or her official function.  The complaint alleged more specifically that on or about February 25, 2020, Petitioner provided a false statement to Special Agent Cook during an investigation, telling Special Agent Cook that she witnessed RM escorted back to her room and that Petitioner went outside looking for RM when RM was missing, which is contrary to what was shown by surveillance video.  The complaint alleged violation of Ohio Rev. Code Ann. § 2921.34(A)(3) but the complaint was amended to allege violation of Ohio Rev. Code Ann. § 2921.13(A)(3).  IG Ex. 2; P. Br. at 1-2 (document page counter); RFH.

Petitioner does not dispute that on September 7, 2022, she pleaded no contest to an amended charge of violation of Ohio Rev. Code Ann. § 2921.31.⁴  Her plea was accepted, and she was found guilty of the amended charge.  She was sentenced to 90 days in the corrections center, which was suspended, two years of probation, and a fine of $150.  IG Ex. 3; P. Br. at 2-3 (document page counter); RFH.

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b.  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)):

* * * *

(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.

Petitioner does not dispute that she pleaded no contest to the amended charge of obstructing official business in violation of Ohio Rev. Code Ann. § 2921.31; that her plea was accepted by the state court; and that the state court found her guilty of the charge.  P. Br. at 1-2 (document page counter); IG Ex. 3.  Petitioner was convicted of the criminal offense within the meaning of section 1128(i) of the Act and 42 C.F.R. § 1001.2 because her plea of no contest was accepted by the state court and the state court found Petitioner guilty of the offense.  Therefore, the first element that triggers exclusion under section 1128(a)(2) of the Act is satisfied.

Petitioner argues that the amended charge did not mention patient neglect or abuse and the offense of which she was convicted was not related to patient neglect or abuse.  She argues that RM’s elopement and related facts are irrelevant because Petitioner was not accused or convicted of contributing to the elopement and the injuries RM suffered.  RFH; P. Br. at 1-4 (document page counter).  Petitioner argues that the offense of which she was convicted does not trigger mandatory exclusion under section 1128(a)(2) of the Act.  P. Br. at 3.  Petitioner’s arguments must be resolved against her as a matter of law based on the undisputed facts that establish a commonsense connection or nexus between Petitioner’s offense and the neglect of RM during the delivery of health care services at Browning.

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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), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003).  In Patel, the Board specifically rejected the position that all elements necessary for exclusion must be found in the record of the state criminal court.  Id. at 10.  The terms “related to” and “relating to” in section 1128(a) of the Act 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).  Based on these prior Board decisions, it is necessary for me to consider not only the charge of which Petitioner was convicted and related court records, but also all the extrinsic evidence of record that shows the basis for the charge.  In deciding this case on summary judgment, I rely only upon the undisputed facts and draw all reasonable inferences in Petitioner’s favor.  I conclude that there is a nexus between Petitioner’s offense and the elopement of RM which was due to neglect.  I also conclude that Petitioner’s offense was in connection with the delivery of a health care service.

There is no dispute that Petitioner was employed by Browning as a nurse and that she was on duty undergoing orientation on February 25, 2020, when RM eloped from Browning where she was a resident.  Petitioner does not dispute that RM’s elopement constituted neglect under the Ohio statutes.  Pursuant to Ohio. Rev. Code Ann. § 2903.33(C)(2),

“Neglect” means recklessly failing to provide a person with any treatment, care, goods, or service that is necessary to maintain the health or safety of the person when the failure results in serious physical harm to the person.

Petitioner has not disputed that on February 25, 2020, RM eloped from Browning, and she was injured as a result.  Petitioner has not disputed that RM’s elopement and injury were due to neglect by Browning staff, albeit staff other than Petitioner.  There is no

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dispute that the Ohio Medicare Fraud Control Unit investigated RM’s elopement.  There is no dispute that, as part of the investigation, Petitioner was interviewed by Special Agent Cook.  Petitioner was charged with making a false statement to Special Agent Cook but agreed to plead guilty to a less severe offense of obstructing Special Agent Cook’s investigation of RM’s elopement.  The commonsense connection or nexus between Petitioner’s offense and the neglect of RM related to her elopement is clear.  Petitioner was never alleged to have neglected RM or caused or permitted RM’s elopement.  However, section 1128(a)(2) of the Act does not require that one be convicted of an offense of neglect or abuse of a patient.  Section 1128(a)(2) of the Act requires simply that one be convicted of an offense related to abuse or neglect.  How close or tight the connection between the offense of which one is convicted, and the abuse or neglect of a patient must be, is not specified by the Act.  The federal courts have recognized that Congress intended that even a loose connection is sufficient to trigger exclusion under section 1128(a)(2) of the Act.  Friedman, 686 F.3d 813, 820; Quayum, 34 F. Supp. 2d 141, 143.

The connection or nexus between Petitioner’s offense and the delivery of a health care service is reflected by the facts that:  Petitioner was on duty at the time of the elopement; Petitioner was interviewed by Special Agent Cook related to her actions as a member of Browning’s staff on duty upon learning of the elopement; she was charged for falsely describing her actions to Special Agent Cook; and she subsequently did not contest the charge that she obstructed Special Agent Cook’s investigation of the elopement of RM.

I conclude that the undisputed facts establish a nexus between Petitioner’s offense and the neglect of RM related to RM’s elopement and the connection between Petitioner’s offense and the delivery of a health care service.  Accordingly, all elements that trigger exclusion under section 1128(a)(2) of the Act are satisfied and the IG had a basis for Petitioner’s exclusion.

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.

5.  Petitioner’s exclusion for five years is not unreasonable as a matter of law.

Congress established five years as the minimum period of exclusion for exclusions pursuant to section 1128(a) of the Act.  Act § 1128(c)(3)(B).  Pursuant to 42 C.F.R. § 1001.2007(a)(2), when the IG imposes an exclusion pursuant to section 1128(a) of the Act for the statutory minimum period of five years, there is no issue of whether the period is unreasonable.  Accordingly, I conclude that Petitioner’s exclusion for a period of five years is not unreasonable as a matter of law.  I have no authority to reduce the period of exclusion below the mandatory minimum of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

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Petitioner argues that the offense of which she was convicted is not a basis for suspension of her Ohio nursing license.  Thus, she is in a position of having an active nursing license but being unable to practice, at least in a setting that receives federal funding.  She argues that exclusion for five years is punitive and unnecessary.  P. Br. at 3.  Petitioner argues that if she had known her conviction could prevent her from practicing as a nurse because of some connection with abuse or neglect of a patient, she would have gone to trial on the charge.  RFH.  Petitioner’s arguments may be viewed as requests for equitable relief.  However, I have no authority to grant Petitioner any equitable relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).  Congress required Petitioner’s exclusion pursuant to section 1128(a)(2) of the Act, the regulation establishes the effective date of a mandatory exclusion, and those requirements are binding upon me.  I am bound to follow the Act and the Secretary’s regulations.  42 C.F.R. § 1005.4(c)(1).

Exclusion is effective 20 days from the date of the IG’s written notice of exclusion to the affected individual or entity.  42 C.F.R. § 1001.2002(b).

III.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years pursuant to section 1128(a)(2) of the Act, effective January 19, 2023.

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Endnotes

¹ 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 2022 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated.

² The pronouns she and her are used as Petitioner stated no other preference.

³ On July 18, 2023, I dismissed this case for abandonment.  However, I subsequently vacated the dismissal on August 15, 2023, after Petitioner notified me that she did not intend to abandon the request for hearing, and she filed her documents addressing the IG’s motion for summary judgment.

⁴ Ohio Rev. Code Ann. § 2921.31(A) provides that:

No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.

Pursuant to Ohio Rev. Code Ann. § 2921.31(B), anyone who violates Ohio Rev. Code Ann. § 2921.31(A) is guilty of obstructing official business, a second-degree misdemeanor, unless the violation creates the risk of physical harm to a person, in which case the violation is a fifth-degree felony.  There is no allegation that Petitioner’s offense posed a risk of physical harm to any person, and for purposes of summary judgment, I accept that Petitioner was convicted of a misdemeanor.  P. Br. at 3 (document page counter).