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                              Yamilet Martinez, DAB CR5238 (2019)
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Yamilet Martinez, DAB CR5238 (2019)








  
  
    

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





Yamilet Martinez,
	(O.I. File No. H-18-40763-9)
	Petitioner,
	v.
	The Inspector General.
Docket No. C-18-1279Decision No. CR5238February 7, 2019

        
              
    

      DECISION
I sustain the determination of the Inspector General (IG) to exclude Petitioner, Yamilet Martinez, from participating in Medicare, state Medicaid programs, and other federally funded health care programs for a period of at least five years.  Section 1128(a)(2) of the Social Security Act (Act) mandates Petitioner’s exclusion.
I. Background
The IG filed a brief and four exhibits, identified as IG Exs. 1-4, to support his determination.  Petitioner filed a brief in opposition and no supporting exhibits.  The IG filed a reply brief.  Neither party filed written direct testimony from a witness.
I receive IG Exs. 1-4 into the record.  There is no need for me to convene an in-person hearing inasmuch as neither party offered testimony.  I decide the case based on the written record.
Page 2
II.  Issue, Findings of Fact and Conclusions of Law
**A.  Issue**
The issue is whether Petitioner was convicted of a criminal offense falling within the purview of section 1128(a)(2) of the Act.  There is no issue concerning whether the length of the exclusion – at least five years – imposed by the IG is reasonable inasmuch as five years is the minimum exclusion period required by section 1128(a)(2).  Act § 1128(c)(3)(B).
**B.  Findings of Fact and Conclusions of Law**
On August 16, 2017, Petitioner pled guilty to a disorderly conduct offense under New York state law.  IG Ex. 3 at 2.  She entered her plea as resolution of a criminal complaint that charged her with a misdemeanor offense under New York law of falsifying business records.  IG Ex. 2.
The complaint emanated from these facts.  Petitioner worked as a certified nursing assistant in a residential health care facility.  On October 14, 2016, she filed an accident report in which one of the residents, an elderly individual, had been injured.  In her report, Petitioner averred that she assisted another nursing assistant in transferring the resident using a mechanical lift.  She stated that during the course of this transfer, the resident slipped out of the lift’s sling, fell, and sustained injuries consisting of a laceration to her right ear and a skin tear to her left arm.  IG Ex. 2.
This report was false.  In fact, and as Petitioner subsequently admitted, another nursing assistant attempted to transfer the resident without assistance, in violation of the resident’s plan of care.  IG Ex. 2.  Petitioner filed her false report in an attempt to cover up her co-worker’s neglect of the resident.
Section 1128(a)(2) of the Act mandates exclusion of any individual who is convicted of a criminal offense relating to patient neglect or abuse in connection with the delivery of a health care item or service.  The facts of this case plainly establish that Petitioner was convicted of a section 1128(a)(2) crime.
First, Petitioner was convicted of a criminal offense.  She pled guilty to a disorderly conduct offense under New York law.  In her hearing request, Petitioner argued that a disorderly conduct conviction in New York is not a conviction of a criminal offense.  She did not persist with that argument in her brief, instead arguing that the elements of the disorderly conduct offense do not meet the requirements of section 1128(a)(2).  P. Br.  It is well established that disorderly conduct convictions in New York are convictions of criminal offenses within the meaning of the Act.  Under New York law, disorderly conduct offenses are classified as crimes pursuant to New York’s Penal Law.  New York
Page 3
Penal Law § 240.20.  Conviction of a disorderly conduct offense in New York subjects the defendant to criminal penalties that may include imprisonment.  *Id.*§§ 240.20, 70.15(4).  In this case, Petitioner’s plea resulted in a judgment of conviction being entered against her.
Second, Petitioner’s conviction related to neglect or abuse of a patient.  The conduct underlying Petitioner’s conviction – as specified in the original complaint that issued against her – was falsification of an accident report in order to cover up the neglect committed by another certified nursing assistant.  There is an evident relationship between Petitioner’s crime and patient neglect in this case.  But for that neglect, Petitioner would have had no reason to generate a false accident report.
Petitioner argues that her conviction, on its face, bears no relationship to patient neglect or abuse.  She contends that the disorderly conduct statute to which she entered her plea criminalizes only the following behavior:  fighting or violent, tumultuous, or threatening behavior; making unreasonable noise; using abusive or obscene language or making an obscene gesture in public; disturbing a lawful assembly or meeting; obstructing vehicular or pedestrian traffic; congregating with other persons in a public place and refusing to obey a lawful order from the police to disperse; and creating a hazardous or physically offensive condition by any act that serves no legitimate purpose.  Petitioner’s brief at 2; *see*New York Penal Law § 240.20.  Petitioner reasons that none of the offenses described as disorderly conduct offenses encompass patient neglect or abuse and she argues, consequently, that she was not convicted of such an offense.
This argument ignores reality.  Obviously, Petitioner entered into a plea agreement in order to dispose of the allegations that were made against her.  The crime to which she pled guilty does not, on its face, specifically encompass neglect or abuse of a patient.  But, the allegations that form the basis of Petitioner’s plea certainly do.  There was no reason for Petitioner to have entered her plea other than to dispose of those allegations.  Petitioner’s conviction springs directly from the criminal complaint filed against her and that complaint explicitly describes conduct relating to patient neglect or abuse.
Numerous decisions by the Departmental Appeals Board and its administrative law judges address Petitioner’s argument.  It is well established that the IG and a reviewing authority may look beyond the four corners of the specific offense to which an excluded party pled guilty in deciding whether a conviction falls under the purview of one of section 1128’s subdivisions.  Documents that form the basis of the ultimate conviction are fair game for determining the nature of that conviction.  If the circumstances surrounding a conviction, based on evidence extrinsic to the narrow language of the conviction, show a relationship between the conviction and patient neglect or abuse then that conviction falls within the reach of section 1128(a)(2).  *Narendra M. Patel, M.D.*, DAB No. 1736 (2000); *Bruce Lindberg, D.C.*, DAB No. 1280 (1991).
Page 4
Third, Petitioner committed her crime in connection with the delivery of a health care item or service.  The conduct that Petitioner intended to conceal with her false accident report constituted neglect committed while providing health care to a resident of the facility at which Petitioner worked.  IG Ex. 2.
  
          /s/
        Steven T. Kessel

                      Administrative Law Judge Back to top
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