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                              Donna C. Pagan, DAB CR5121 (2018)
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Donna C. Pagan, DAB CR5121 (2018)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Donna C. Pagan,
	(OI File No. H-17-41702-9),
	Petitioner,
v.
Inspector General,
	U.S. Department of Health and Human Services,
	Respondent.
Docket No. C-18-364Decision No. CR5121June 25, 2018

        
              
    

      DECISION
Petitioner, Donna C. Pagan, 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 November 20, 2017.  Petitioner’s exclusion, for a 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
Page 2
I. Background
The Inspector General (I.G.) for the U.S. Department of Health and Human Services notified Petitioner by letter dated October 31, 2017, that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for five years.  I.G. Exhibit (Ex.) 1 at 1.  The I.G. cited section 1128(a)(2) of the Act as the basis for Petitioner’s exclusion and stated that the exclusion was based upon her conviction in the Tarrytown Justice Court, Westchester County, New York of a criminal offense related to the neglect or abuse of patients, in connection with the delivery of a health care item or service.  I.G. Ex. 1 at 1.  ****
Petitioner timely requested a hearing on December 14, 2017.  The case was assigned to me on January 5, 2018.  On February 1, 2018, I convened a prehearing conference by telephone, the substance of which is recorded in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence issued February 5, 2018.  The I.G. filed a motion for summary judgment with a supporting brief (I.G. Br.) and four exhibits marked I.G. Exhibits 1 through 4 on March 15, 2018.  Petitioner filed her response in opposition to the I.G.’s motion (P. Resp.) with several documents attached which I treat as if marked Petitioner’s exhibit (P. Ex.) 1 and an unmarked document that I treat as if marked P. Ex. 2.  On May 3, 2018, the I.G. waived a reply brief.  There have been no objections to my consideration of I.G. Exs. 1 through 4 and P. Exs. 1 and 2, and all are admitted 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 administrative law judge (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.  The Secretary has promulgated regulations implementing these provisions of the Act.  42 C.F.R. § 1001.101(b).2
Page 3
Pursuant to section 1128(i) of the Act, an individual is “convicted” of a criminal offense when a judgment of conviction has been entered by a federal, state, or local court whether or not an appeal is pending or the record has been expunged; when there has been a finding of guilt in a federal, state, or local court; when a plea of guilty or no contest has been accepted in a federal, state, or local court; or when an accused individual enters a first offender program, deferred adjudication program, or other arrangement where a judgment of conviction has been withheld.  Act § 1128(i) (42 U.S.C. § 1320a-7(i)); 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 not less than five years.  42 C.F.R. § 1001.102(a).  Pursuant to 42 C.F.R. § 1001.102(b), the period of exclusion may be extended based on the presence of specified aggravating factors.  Only if the aggravating factors justify an exclusion of longer than five years are mitigating factors considered as a basis for reducing the period of exclusion to no less than five years.  42 C.F.R. § 1001.102(c).
The standard of proof is a preponderance of the evidence, and there may be no collateral attack of the conviction that provides the basis of the exclusion.  42 C.F.R. § 1001.2007(c), (d).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors, and the I.G. bears the burden on all other issues.  42 C.F.R. § 1005.15(b).
**B. Issues**
The Secretary has by regulation limited my scope of review to two issues:
Whether the I.G. 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).  If the I.G. imposes the 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 I.G. 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.
Page 4
**C. Findings of Fact, Conclusions of Law, and Analysis**
My conclusions of law are set forth in bold followed by the pertinent findings of fact and analysis.
**1. Petitioner timely filed her request for hearing, 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 I.G. 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.  *See 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 does not dispute that she was convicted in state court of a misdemeanor offense of falsifying business records.  Petitioner does not dispute that there is a nexus between her conviction and the abuse or neglect of a patient in connection with the delivery of a health care item
Page 5
or service.  Petitioner argues generally that she accepts responsibility, she has learned a great deal, and she has a history of providing quality health care; all of which I accept as true for purposes of summary judgment.  Petitioner has not identified, and I conclude, that there are no genuine disputes of material fact that require a trial in this case related to the basis for exclusion under section 1128(a)(2) of the Act.  Because Petitioner was convicted and there is a nexus between her conviction and the abuse or neglect of a patient in connection with the delivery of a health care item or service, neither the I.G. nor I have any discretion not to exclude Petitioner, as Congress has mandated exclusion pursuant to section 1128(a)(2) of the Act.  Because the I.G. proposed the minimum authorized period of exclusion of five years, there is no issue of the reasonableness of the period of exclusion.  I conclude that summary judgment is appropriate.
**3. Petitioner’s exclusion is required by section 1128(a)(2) of the Act.**
**a. Facts**
The material facts in this case are undisputed.
On March 20, 2013, Petitioner pleaded guilty to one misdemeanor count of falsifying business records in violation of New York law.  Her plea was accepted.  She was sentenced on August 21, 2013, to a $500 fine and probation for three years.  P. Ex. 1 at 13, 15-16; I.G. Exs. 2, 4 at 14-15.  The basis for the charge was that on about February 15, 2012, at about 12:15 p.m. at the Tarrytown Hall Care Center Petitioner was working as a certified nursing assistant (CNA) assigned to care for resident SM.  Another CNA called for assistance because resident SM had fallen due to improper use of a lift by the CNA without assistance of another person as required.  Petitioner delayed calling for emergency assistance and agreed to falsely report that she had been assisting the CNA who dropped resident SM.  Resident SM died at the hospital two hours after the incident.  P. Ex. 2 at 7; I.G. Exs. 3, 4 at 11-13.  Petitioner was originally charged by a felony complaint with a felony offense of falsifying business records with intent to defraud and conceal the commission of another crime.  I.G. Ex. 3.
**b. Analysis**
The I.G. cites section 1128(a)(2) of the Act as the basis 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)):
* * * *
Page 6
(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.
In this case, the undisputed facts show that Petitioner was convicted of a misdemeanor criminal offense that was related to the neglect or abuse of resident SM; and the neglect or abuse was in connection with the delivery of a health care item or service.
Accordingly, I conclude that the elements of section 1128(a)(2) of the Act are satisfied and there is a basis for Petitioner’s exclusion.  Neither the I.G. nor I have discretion under the Act not to exclude Petitioner when the elements of section 1128(a)(2) are satisfied, as they are in this case.
**4. Five years is the minimum authorized period of 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 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 I.G. 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 or not 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 considered Petitioner’s arguments and representations about acceptance of responsibility and repentance, but 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).
Exclusion is effective 20 days from the date of the I.G.’s written notice of exclusion to the affected individual or entity.  42 C.F.R. § 1001.2002(b).
Page 7
III. Conclusion
For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all other federal health care programs for the minimum statutory period of five years, effective November 20, 2017.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      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 period of exclusion. back to note 1
                      2. References are to the revision of the Code of Federal Regulations (C.F.R.) in effect at the time of the I.G. action, unless otherwise indicated. back to note 2 Back to top
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