Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Dumas Nursing and Rehabilitation, L.P.,
(CCN: 67-5016),

Petitioner
Vv.
Centers for Medicare & Medicaid Services.
Docket No. C-09-508
Decision No. CR2127

Date: May 4, 2010

DECISION

Petitioner, Dumas Nursing and Rehabilitation, L.P. (Petitioner or facility), is a long-term
care facility located in Dumas, Texas, that participates in the Medicare program. When
one of its residents experienced an episode of respiratory distress, the nurse on duty (who
was the only nurse in the building) failed to take vital signs, check her airway, or provide
any medical care. For this and other reasons, the Centers for Medicare and Medicaid
Services (CMS) determined that the facility was not in substantial compliance with
Medicare requirements and that its deficiencies posed immediate jeopardy to resident
health and safety. CMS imposed civil money penalties (CMPs) of $7,050 per day for
fifteen days of immediate jeopardy, and $700 per day for thirty-four days of substantial
non-compliance that was not immediate jeopardy (total CMP: $129,550).

Petitioner appealed, and CMS now moves for summary judgment.

For the reasons set forth below, I find that CMS is entitled to summary judgment. CMS
has come forward with evidence establishing that: the facility was not in substantial
compliance with Medicare program requirements; its deficiencies posed immediate
jeopardy to resident health and safety; and the penalties imposed are reasonable.
Petitioner has tendered no evidence suggesting a dispute over any material fact.
I. Background

The Social Security Act (Act) sets forth requirements for nursing facility participation in
the Medicare program and authorizes the Secretary of Health and Human Services to
promulgate regulations implementing those statutory provisions. Act § 1819. The
Secretary’s regulations are found at 42 C.F.R. Part 483. To participate in the Medicare
program, a nursing facility must maintain substantial compliance with program
requirements. To be in substantial compliance, a facility’s deficiencies may pose no
greater risk to resident health and safety than “the potential for causing minimal harm.”
42 CFR. § 488.301.

The Secretary contracts with state survey agencies to conduct periodic surveys to
determine whether skilled nursing facilities are in substantial compliance. Act § 1864(a);
42 C.F.R. § 488.20. The regulations require that each facility be surveyed once every
twelve months and more often, if necessary, to ensure that identified deficiencies are
corrected. Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.

Here, following a complaint investigation survey, completed March 16, 2009, CMS
determined that the facility was not in substantial compliance with Medicare participation
requirements and that, from February 27 through March 13, 2009, some of its
deficiencies posed immediate jeopardy to resident health and safety. Specifically, CMS
found that the facility was not in substantial compliance with the following regulations:

e 42C.F.R. § 483.13(a) (Tag F221 — physical restraints) at an E level of scope and
severity (pattern of noncompliance that causes no actual harm with the potential
for more than minimal harm);

e 42 C.F.R. § 483.13(c) (Tags F224 and F226 — staff treatment of residents) at an L
level of scope and severity (widespread immediate jeopardy);

© 42 C.F.R. § 483.13(c)(2)-(4) (Tag F225 — staff treatment of residents) at an L level
of scope and severity;

e 42 C.F.R. § 483.20(k)(3)(i) (Tag F281 — comprehensive care plans) at a K level of
scope and severity (pattern of immediate jeopardy);

e 42 C.F.R. § 483.25(h) (Tag F323 — accidents and supervision) at an E level of
scope and severity;

e 42C.F.R. § 483.25(k) (Tag F328 — special needs) at a K level of scope and
severity;
3

e 42 C.F.R. § 483.75(1)(1) and (5) (Tag F514 — clinical records) at a D level of scope
and severity (isolated instance of noncompliance that causes no actual harm with
the potential for more than minimal harm).

CMS Ex. 2, at 3-5; CMS Ex. 3. CMS subsequently determined that the facility returned
to substantial compliance on April 17, 2009. CMS Ex. 2, at 1-2.

CMS has imposed against the facility CMPs of $7,050 per day for fifteen days of
immediate jeopardy (February 27-March 13, 2009), and $700 per day for thirty-four days
of substantial noncompliance that was not immediate jeopardy (March 14-April 16,
2009), for a total CMP of $129,550.'

Petitioner timely requested a hearing. CMS now moves for summary judgment. With its
motion and brief (CMS Br.), CMS has submitted nineteen exhibits (CMS Exs. 1-19).
With its brief (P. Br.), Petitioner submitted three exhibits (P. Exs. 1-3).

II. Issues

My initial order directs the parties to include in their pre-hearing briefs “any argument
that a party intends to make” and warns that “I may exclude an argument . . . if a party
fails to address it in its pre-hearing brief.” Acknowledgment and Prehearing Order at 4,
47 (June 15, 2009). Thus, because Petitioner does not address the deficiencies cited
under 42 C.F.R. §§ 483.13(a) (physical restraints), 483.25(h) (accidents and supervision),
and 483.75(1)(1) and (5) (clinical records), Petitioner has waived any challenge to the
deficiencies cited under those regulations. The facility was therefore not in substantial
compliance with program requirements, and I must sustain a CMP of at least $50 per day.
42 CFR. § 488.438(a).

Less evident from its submissions, however, are whether Petitioner: 1) concedes its
substantial noncompliance with the other regulations cited; and 2) agrees that this case
may appropriately be decided on summary judgment. On the question of summary
judgment, Petitioner has simply not responded to CMS’s arguments that summary
judgment is appropriate, which suggests that it waives the issue. On the other hand,
Petitioner disputes some of CMS’s factual assertions. So, to the extent that its arguments
could be construed as responsive to CMS’s arguments in favor of summary judgment, I
will consider whether summary judgment is appropriate.

With respect to the remaining deficiencies — cited under 42 C.F.R. §§ 483.13(c), 483.13
(c)(2)-(4), 483.20(k)(3)(i), and 483.25(k) — Petitioner appears to concede its substantial
noncompliance, noting that “given the facts of this appeal and prior Board decisions
interpreting rules, the gravamen of this appeal . . . is the reasonableness of the imposed

' $7,050 x 15 days = $105,750. $700 x 34 days = $23,800. $105,750 + $23,800 =
$129,550.
4

civil money penalty.” P. Br. at 7.2 On the other hand, in discussing the deficiencies cited
under these regulations, Petitioner repeatedly insists that: its staff “did not abuse or
neglect the resident” but “helped the resident” (P. Br. at 14); facility administrators were
not obligated to investigate or report the incident because “there was no ‘incident’ of
neglect” (P. Br. at 17); and the nurse “acted appropriately” (P. Br. at 19, 21). These
arguments suggest that, in fact, Petitioner challenges CMS’s findings of substantial
noncompliance.

So, without deciding whether Petitioner has waived any of these arguments, I will
consider the following issues:

1) whether, from February 27 through April 16, 2009, the facility was in
substantial compliance with 42 C.F.R. §§ 483.13(c), 483.13(c)(2)-(4),
483.20(k)(3)(i), and 483.25(k);

2) if the facility was not in substantial compliance with these regulations from
February 27 through March 13, 2009, did its deficiencies pose immediate
jeopardy to resident health and safety;

3) were the penalties imposed in excess of $50 per day — $7,050 per day and
$700 per day — reasonable?

Petitioner also raises some Constitutional claims, which I have no authority to decide.
III. Discussion

Summary Judgment. Summary judgment is appropriate if a case presents no genuine
issue of material fact, and the moving party is entitled to judgment as a matter of law.
Illinois Knights Templar Home, DAB No. 2274, at 3-4 (2009), and cases cited therein.

The moving party may show the absence of a genuine factual dispute by presenting
evidence so one-sided that it must prevail as a matter of law, or by showing that the non-
moving party has presented no evidence “sufficient to establish the existence of an
element essential to [that party’s] case, and on which [that party] will bear the burden of
proof at trial.” Livingston Care Ctr. v. Dep’t of Health & Human Servs., 388 F.3d 168,
173 (6th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). To
avoid summary judgment, the non-moving party must then act affirmatively by tendering
evidence of specific facts showing that a dispute exists. Matsushita Elec. Indus. Co. v.

> In this regard, Petitioner’s only witness, Karl E. Steinberg, MD, CMD, agrees, based on
his review of the records, that the facility was not in substantial compliance with program
requirements but disagrees with CMS’s determinations as to scope and severity. P. Ex. 2
(Steinberg Decl.).

5

Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No.
1939 (2004); Lebanon Nursing and Rehab. Ctr., DAB No. 1918 (2004).

To defeat an adequately supported summary judgment motion, the non-
moving party may not rely on the denials in its pleadings or briefs, but must
furnish evidence of a dispute concerning a material fact... .

Illinois Knights Templar, DAB No. 2274, at 4; Livingston Care Ctr., DAB No. 1871, at 5
(2003).

In examining the evidence for purposes of determining the appropriateness of summary
judgment, I must draw all reasonable inferences in the light most favorable to the non-
moving party. Brightview Care Ctr., DAB No. 2132, at 2, 9 (2007); Livingston Care
Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943, at 8 (2004); but see
Brightview, DAB No. 2132, at 10 (entry of summary judgment upheld where inferences
and views of non-moving party are not reasonable). However, drawing factual inferences
in the light most favorable to the non-moving party does not require that I accept the non-
moving party’s legal conclusions. Cf Guardian Health Care Ctr., DAB No. 1943, at 11
(“A dispute over the conclusion to be drawn from applying relevant legal criteria to
undisputed facts does not preclude summary judgment if the record is sufficiently
developed and there is only one reasonable conclusion that can be drawn from those
facts.”).

A, CMS is entitled to summary judgment that the facility was not
in substantial compliance with 42 C.F.R. §§ 483.13(c),
483.20(k)(3)(i), and 483.25(k), because the undisputed evidence
establishes that the only nurse on duty failed to assess a resident in
respiratory distress and failed to provide her with any emergency
medical care.*

Regulatory requirements: Under the statute and the “quality of care” regulation, each
resident must receive, and the facility must provide, the necessary care and services to
allow a resident to attain or maintain the highest practicable physical, mental, and
psychosocial well-being, in accordance with the resident’s comprehensive assessment
and plan of care. Act § 1819(b); 42 C.F.R. § 483.25. The facility must ensure that
residents with special needs receive “proper treatment and care” for certain special
services, including tracheostomy care, tracheal suctioning, and respiratory care. 42
CFR. § 483.25(k).

The services provided or arranged by the facility must meet professional standards of
quality. 42 C.F.R. § 483.20(k)(3)(i).

* My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion
captions of this decision.
Facilities must develop and implement written policies and procedures that prohibit
resident neglect. 42 C.F.R. § 483.13(c). “Neglect” means failure to provide goods and
services necessary to avoid physical harm, mental anguish, or mental illness. 42 C.F.R.
§ 488.301. See Jennifer Matthew Nursing & Rehab. Ctr., DAB No. 2192, at 19 (2008);
CMS Ex. 15, at 78 (facility’s neglect policy echoes the regulatory definition).

Here, CMS has come forward with evidence (primarily the facility’s own documents and
statements from facility staff) establishing that, when Resident 1 (R1) experienced an
episode of respiratory distress, the nurse on duty failed to take her vital signs or provide
any medical care, but left her in the care of nurse aides, while he went to call Emergency
Medical Services (EMS). Petitioner has not come forward with evidence suggesting a
dispute over these facts.

Resident 1. R1 was a 57-year-old woman suffering from a long list of ailments,
including morbid obesity, anxiety, and peripheral vascular disease. Following abdominal
surgery in 2007, she had difficulty being weaned from a ventilator, and surgeons
performed a tracheostomy.’ R1 had a long history of chronic obstructive pulmonary
disease (COPD), gastroesophageal reflux disease (GERD), diabetes, coronary artery
disease, and hypertension; she required chronic endotracheal tube therapy. CMS Ex. 5, at
9, 94; CMS Ex. 3, at 65.

R1’s comprehensive care plan recognized that her tracheostomy put her at risk for
infection and that “ineffective airway clearance impaired gas exchange.” CMS Ex. 5, at
78, 80. The plan set as a goal that her “trach to remain in place and open[,]” enabling her
to get the oxygen needed to keep her oxygen (O”) saturation levels in the 90s (normal
range is 97 to 99%). Her trach was hooked up to oxygen “at all times,” and she was to be
administered oxygen at 2-3 liters per minute as needed. The plan directed staff to suction
as needed to keep the airway free and clear. CMS Ex. 5, at 78. Physician orders, dated
November 19, 2008, are somewhat confusing, because the handwritten physician order
(“transcribed by S. Macias”) calls for tracheal suctioning every two hours from 6:00 a.m.
to 6:00 p.m. and every four hours from 6:00 p.m. to 6:00 a.m. CMS Ex. 5, at 128. But
the print-out of the physician orders and the treatment sheets call for suctioning the trach
every four hours (without regard to the time of day or night), and suctioning every two
hours as needed (again, without regard to the time of day or night). CMS Ex. 5, at 74-75,
97. A November 19, 2008 addition to her care plan also instructed staff to suction every
four hours, and every two hours as needed. CMS Ex. 5, at 78.

Nursing failure to provide care. According to nurses’ notes, at 2:30 p.m. on February 27,
2009, R1 complained of difficulty breathing and asked to be suctioned. Her vital signs

+ A tracheostomy (trach) is a surgically-created opening in the neck, which provides a
direct airway into the trachea. The term also refers to the surgical procedure by which
the opening is created.
7
were normal, and her O? level was 97%. The nurse performed the suctioning. At 4:00
and 5:20 p.m., R1 again complained that she was unable to breathe and asked to be
suctioned, which the nurse did. The nurses’ notes do not reflect the resident’s vital signs
or O? levels at those times. CMS Ex. 5, at 60.

At 8:10 that evening, staff told the licensed vocational nurse (LVN) on duty (identified as
LVN B) that R1 was “blue.” The nurse writes that R1 told him she was having trouble
breathing. He called for an ambulance “due to [her continuing] resp[iratory] distress.”
CMS Ex. 5, at 60. He also asked the nurse aides to put her to bed, but R1 refused, fearful
that lying down would further impede her breathing. CMS Ex. 5, at 60; see CMS Ex. 16,
at 3 (Mount Decl.). He did not check her airways. He took no vital signs, and he
provided no care. According to staff, he did not even enter the room. CMS Ex. 16, at 2
(Mount Decl.); CMS Ex. 17, at 6 (Courson Decl.).*

According to the EMS report, the facility’s call came in at 8:09 p.m., and the emergency
medical technicians (EMTs) reached the resident at 8:13 p.m. They found her sitting in a
wheelchair, in respiratory distress. Their report describes labored respiration and
wheezes. Her face was red, and she was unable to speak. Her pulse was 138, her
respirations 38 and labored, and her O? level was 84%. Her trach was clogged. The
EMTs immediately suctioned her twice and administered medications (Albuterol,
Atrovent, Decadron) through a nebulizer. They applied oxygen with a high concentration
mask at 10 liters per minute and transported her to the hospital, suctioning her while in
transit until the trach clog was dislodged. CMS Ex. 5, at 1, 3; P. Ex. 1, at 60.

At the emergency room, R1 was described as in respiratory distress with cyanosis (blue
discoloration of the skin and mucous membranes caused by lack of oxygen in the blood).
Findings showed bilateral pleural effusion and a decreased O? level — 86% on ambient
air. She was also in mild to moderate congestive heart failure. CMS Ex. 5, at 9. She was
admitted to the hospital where she remained until March 6, 2009, when she returned to
the facility. CMS Ex. 5, at 5, 9-11.

Thus, the undisputed evidence establishes that LVN B took no vital signs, performed no
nursing assessment, and offered no oxygen or any other form of emergency treatment.
He did not check her airway. He left R1 in the care of the nurse aides while he called
EMS. An employee disciplinary report, dated March 9, 2009, reprimands LVN B for

* Although Petitioner asserts, without reference to any evidence in the record, that the
“nurse came to the room once or twice, at which time he entered, or did not enter... .” P.
Br. at 8. In fact, witnesses to the event said that he did not enter the room. CMS Ex. 10,
at 91 (Mujfioz Statement); CMS Ex.10, at 92; CMS Ex. 16, at 2 (Mount Decl.); CMS Ex.
17, at 6-7 (Courson Decl.). Petitioner has come forward with no actual evidence
establishing any dispute over this fact. In any event, whether he entered the room is not
material. The critical facts — undisputed — are that he performed no nursing assessment
and provided no care.
8

leaving a resident, who was experiencing respiratory distress, to call 911. The report also
admonishes him for failing to make “all attempts to maintain airway . . . (ambu bag).”
The report indicates that LVN B’s supervisor counseled him, orally and in writing, to
remain at all times with a resident in respiratory distress, and to have an aide or other
personnel call 911. She also told LVN B that “all attempts to maintain airway must be
initiated until EMTs arrive to take over care.” CMS Ex. 14, at 39.

Petitioner does not dispute any of these facts. Nor has Petitioner come forward with any
additional evidence suggesting a dispute concerning any other material fact. Instead,
Petitioner challenges CMS’s purported assertion that more than ten minutes passed
before R1 received emergency treatment. Petitioner concedes that staff who witnessed
the events of February 27, 2009 reported waiting “‘ten-plus” minutes, but, citing EMS
records, Petitioner points out that only four minutes elapsed between the time the call
came in from the facility (8:09 p.m.) and the time the EMTs reached R1 (8:13 p.m.). P.
Br. at 9; P. Ex. 1, at 60.

That EMS quickly responded to the facility’s call is undisputed, but Petitioner fails to
consider the amount of time that elapsed between the onset of R1’s symptoms and her
receipt of emergency care. Petitioner offers no argument or evidence to rebut CMS’s
evidence as to what occurred before LVN B called EMS. Facility staff (two nurse aides
and a medication aide) told surveyors, in interviews and in written statements, that they
made two to three trips to the medication room to summon LVN B before he responded.
Some additional time passed before he left the medication room and went to R1’s room.
He then did not enter the room, although, for summary judgment purposes, I accept
Petitioner’s assertion that he spoke to and made eye contact with the resident. When he
left, he returned to the medication room. He told the medication aide that he would not
take R1’s vitals but would call 911. Thereafter, he called 911. CMS Ex. 10, at 91
(Mujfioz Statement); CMS Ex. 10, at 92; CMS Ex. 16, at 2 (Mount Decl.); CMS Ex. 17, at
6 (Courson Decl.). In the meantime, the medication aide went to R1’s room, where she
ound her “slumped over in her wheelchair . . . her eyes were big, her lips were purple
and she was sweating profusely. . . . [W]hite foam [was] coming out of her
tracheostomy.” CMS Ex. 16, at 2; CMS Ex. 17, at 7; CMS Ex. 10, at 92. Again,
Petitioner has not come forward with any statements from staff (including LVN B) or any
other evidence suggesting any dispute over these facts.

Fortuitously, the EMTs immediately responded to the call, but that quick response does
not excuse LVN B’s failures to assess an obviously distressed and deteriorating resident
and to provide her with emergency care.

Petitioner argues, however, that LVN B “did not need to make a traditional assessment of
vitals [sic] signs in order to” conclude that R1’s oxygen levels were low and that she was
working hard to breathe. According to Petitioner, R1’s “physical appearance . . . made it
clear without the measurement of numbers for the sake of charting.” P. Br. at 10. Not
surprisingly, Petitioner offers absolutely no support for this remarkable assertion, and
nothing in the record suggests that Petitioner’s argument represents any responsible
9

medical opinion. A nurse’s failure to assess a resident in obvious distress violates
professional standards of quality and the facility’s own policies, which required the nurse
to: obtain vital signs, including temperature; observe for alterations in consciousness or
change in personality; observe for sensory weakness; observe for generalized weakness;
and observe for flushing or cyanosis. “Do not leave the resident alone.” P. Br. at 14;
CMS Ex. 15, at 97-99. The policy also directed the nurse to document the resident’s vital
signs, assessment, and observations. CMS Ex. 15, at 114.

Petitioner claims that, because LVN B left R1 with two nurse aides, who were later
joined by a medication aide, the resident was “assessed and . . . supervised by multiple
staff at all times.” P. Br. at 14. I find it insufficient to leave a resident in obvious
respiratory distress with staff who are not trained to perform assessments or to provide
nursing-level care. On the other hand, any one of these aides would have been capable of
calling EMS, freeing the only trained nurse on duty to provide critical nursing services.
See CMS Ex. 14, at 39. Even Dr. Steinberg concedes that LVN B “probably could have
managed the situation . . . better, particularly by staying in the room with the resident
who was starting to show respiratory distress. ...” P. Ex. 2, at 4 (Steinberg Decl. § 10).

Petitioner also suggests that LVN B’s refusal to suction R1’s trach was justified, because
the resident so often requested the procedure when it was not necessary. Petitioner cites
almost a dozen times when R1 asked for suctioning, although no clinical symptoms
indicated a need for the procedure. P. Br. at 11-12; P. Ex. 1, at 30-35. In fact, nine of
these instances occurred on February 26 and 27, immediately prior to R1’s being
hospitalized for bilateral pleural effusion, congestive heart failure, and decreased O?
levels. Otherwise, the record reflects that she rarely asked to be suctioned. Petitioner
cites one instance on February 13, and no other until almost a week later, on February 19.
The next two requests occurred several days later, on February 23 and February 25. But,
starting February 26, the rate of her requests increased dramatically — four times on
February 26 and more than 5 times prior to the arrival of the EMTs on February 27. It
seems apparent that her increased complaining was related to her deteriorating respiratory
condition. Petitioner’s expert witness (Dr. Steinberg) opines that she “was suffering from
a serious exacerbation of her pulmonary and cardiac disease . . . and these were the direct
and sole cause of her week-long hospitalization. ...” P. Ex. 2, at 4 (Steinberg Decl. § 9)
(emphasis in original). In Petitioner’s words, the “exacerbations” of her congestive heart
failure and chronic obstructive pulmonary disease “gradually develop[ed] over the course
of several days.” P. Br. at 13. I accept this. Plainly, R1 was having more and more
difficulty breathing, which she (wrongly, according to Dr. Steinberg) attributed to clogs
in her trach. Unfortunately, at the time, no one seems to have noticed the
“exacerbations.” Indeed, had staff taken more seriously R1’s escalating complaints of
breathing difficulties, they might have avoided February 27’s emergency.

Of course, that the EMTs suctioned her repeatedly until a trach clog was dislodged
strongly suggests that, notwithstanding the underlying causes for her acute difficulties,
10
R1 also needed to be suctioned the night of February 27. CMS Ex. 5, at 1, 3; P. Ex. 1, at
60.° But the actual cause of R1’s respiratory distress is not material. The problem was
not that the nurse declined to suction someone who had been suctioned too often, or did
not need suctioning. The problem was that a woman was turning blue — she was
obviously in respiratory distress — and the nurse neither assessed her condition nor
provided her with any care.

Petitioner simultaneously suggests that R1 was not ill enough to require nursing-level
care and that she was so ill that only a hospital could have provided her the care she
needed. R1 indisputably required hospitalization, but she also needed more immediate
attention — she simply could not wait until she reached the hospital. When the EMTs
arrived on the scene, they immediately performed an assessment, took vital signs, and
measured her O? level. In addition, they suctioned her, administered medications, and
gave her oxygen. These are precisely the kinds of emergency interventions that a facility
nurse should be able to perform.

Petitioner asserts that the nurse’s inaction caused R1 no actual harm, apparently relying
on the opinion of Dr. Steinberg that she returned from the hospital “at the same functional
level.” P. Ex. 2, at 3 (Steinberg Decl. § 6). For summary judgment purposes, I accept as
true that R1 suffered no long-term physical harm. | also accept that her hospitalization
was not related to LVN B’s inaction. I do not accept, however, that she suffered no

arm. What Dr. Steinberg characterizes as “undoubtedly an unpleasant experience” is
actual harm. P. Ex. 2, at 4 (Steinberg Decl. § 11). The regulation (as well as the
acility’s policy) recognizes this, and includes in its definition of neglect, “failure to
provide . . . services necessary to avoid . . . mental anguish.” CMS Ex. 15, at 109. R1
indisputably suffered significant mental anguish as a result of the nurse’s refusal to
provide her any emergency care when she felt unable to breathe. See CMS Ex. 16, at 5
(Mount Decl.) (R1 cried when asked to recount the details of the night of 2/27/09.).

Moreover, although I think R1 suffered significant actual harm, I do not consider this a
material fact. The facility is not in substantial compliance if its deficiencies pose the
potential for causing more than minimal harm. 42 C.F.R. § 488.301. Refusing to
provide emergency care to someone in respiratory distress poses the potential for causing
significant harm. Leaving that person in the care of staff who are not equipped to provide
necessary care poses the potential for causing significant harm.

° Without reference to any of the medical evidence, Dr. Steinberg says that, when the
paramedics arrived, they found “no evidence of tracheal obstruction (hence no
compelling need for immediate suctioning) ....” P. Ex. 2, at 3 (Steinberg Decl. ¥ 5). I
find this puzzling since Dr. Steinberg has no independent knowledge of the events and
purportedly bases his assertions on the medical records. The EMS report (which he
presumably reviewed) says “blockage in trach.” CMS Ex. 5, at 1; P. Ex. 1, at 60.
Nevertheless, as discussed in the body of this decision, even if Dr. Steinberg’s
unsupported assertion creates a factual dispute, it is not material.
11

Finally, Petitioner argues that the facility should not be charged with neglect for what it
characterizes as an “isolated” incident. I disagree. First, as I discuss below, surveyors
found additional examples of nursing inadequacies with respect to R1’s care. I also
discuss below the administration’s failure to investigate the incident, all of which
contributed to the findings of neglect. Moreover, I do not consider the events of February
27 an isolated incident involving just one nurse’s poor judgment. The only nurse on duty
that night was a new hire, and the facility had not insured that he was adequately trained
in caring for tracheostomies.’ P. Br. at 17, 19; P. Ex. 2, at 3,4 (Steinberg Decl. § 7, 10).
According to Petitioner, this was the best the facility could do.

In a perfect world there would have been several registered
nurses available to immediately tend to the multitude [of ]
tasks required of LVN B ina very short period of time. But,
nursing homes operate in a world created by cost-conscious
legislators. So, on February 27, 2009, Dumas Nursing and
Rehabilitation, LP was not a perfect world.*

P. Br. at 19. But the facility did not merely fall short of “perfect”; it fell short of
“adequate.” Knowing that one of its residents required regular tracheostomy care and
was at a foreseeable risk of suffering a significant — even life-threatening — respiratory
episode, the facility did not insure that a trained and competent nurse would be available
to provide her the care she needed. I consider this neglect. Because the facility did not
implement its policies and procedures that prohibit resident neglect, it was not in
substantial compliance with 42 C.F.R. § 483.13(c).

The services provided R1 did not meet professional standards of quality, and the facility
did not ensure that R1 received proper treatment and care for her tracheostomy and her
respiratory difficulties. The facility was therefore not in substantial compliance with 42
C.F.R. §§ 483.20(k)(3)(i) and 483.25(k).

’ The evidence shows that another nurse had been in the facility, but, at about 7:30 p.m.,

she called the assistant director of nursing (ADON) to complain about LVN B’s repeated
refusals to suction R1, and, inexplicably, the ADON gave her permission to leave. CMS
Ex. 10, at 95; CMS Ex. 16, at 3 (Mount Decl.).

* To prevent the triumph of financial considerations over resident needs, penalties
imposed should be at a level reasonably related to an effort to produce corrective actions.
See discussion infra section E.
12

B. CMS is entitled to summary judgment that the facility was not in
substantial compliance with 42 C.F.R. §§ 483.25(k) (special needs) and
483.20(k)(3)(i) (professional standards of quality), because the
undisputed evidence establishes that facility staff: failed to use
appropriate sterile techniques when caring for R1’s trach; failed to follow
physician’s orders for trach care; and falsified records, claiming to have
provided care that was not provided.

Nor were the events of February 27, 2009, the only examples of the facility’s deficiencies
with respect to resident care.

Nursing failure to use sterile techniques in suctioning Rl. CMS also charges that the

facility failed to provide proper tracheostomy treatment and care, because, on three
separate occasions, surveyors observed three different nurses provide tracheostomy care
using nonsterile techniques. Specifically:

On March 9, 2009, at 4:00 p.m., Surveyors Andrea Mount and Barbara Courson
observed a licensed vocational nurse, identified as LVN C, provide R1’s
tracheostomy care. LVN C touched soiled surfaces with her sterile gloves and
then performed the suctioning. CMS Ex. 16, at 14 (Mount Decl.); CMS Ex. 17, at
30 (Courson Decl.); CMS Ex. 10, at 27-28; CMS Ex. 3, at 98;

On March 10, 2009, at 3:40 p.m., Surveyor Mount observed yet another LVN,
identified as LVN F,” open the sterile suction catheter kit without first washing her
hands. She then picked up a jug of sterile water and poured it into the kit’s
contaminated reservoir. Then, she put her gloves on but removed them and, with
her bare hands, opened three vials of normal saline. She put the gloves back on
and turned on the unsterile machine with a gloved hand. She used both hands in
the procedure. CMS Ex. 16, at 14-15 (Mount Decl.); CMS Ex. 10, at 45; CMS Ex.
3, at 99;

On March 11, 2009, at 4:40 p.m., Surveyor Mount observed LVN B suctioning
R1. Between suctioning passes, his left gloved hand brushed the soiled gauze
dressing around her trach site, which contaminated the suction tubing. CMS Ex.
16, at 15; CMS Ex. 3, at 99-100.

Petitioner does not dispute these facts, although it maintains, without supporting
evidence, that LVN C’s error was “minimal” and “quickly corrected” and that all of the
errors were insignificant, because they resulted in no actual harm. P. Br. at 21-22.

° An apparent typographical error in Surveyor Mount’s declaration identifies this
employee as LVN S.
13

Dr. Steinberg is not quite so dismissive. He concedes that lapses in sterile techniques are
“not optimal for tracheostomy care.” He agrees that they “certainly had the potential to
cause actual harm” and that the facility needed to provide additional training in trach care
to its staff. Nevertheless, he also excuses the deficiencies, because they caused R1 no
actual harm. P. Ex. 2, at 5 (Steinberg Decl. 14).

Again, actual harm is not required, so long as the deficiency poses the potential for more
than minimal harm. 42 C.F.R. § 488.301. More important, Petitioner’s position
disregards the facility’s more serious underlying problem: its staff were simply not
adequately trained in either basic tracheostomy care or sterile techniques. Even under
surveyor observation, when they would presumably be making their best efforts, these
nurses could not get it right.'°

Facility failure to follow physician orders for tracheostomy care. In addition to
suctioning R1’s trach every four hours and up to every two hours, as needed, R1’s
physician ordered that staff: 1) clean the inner canula of the trach with hydrogen
peroxide and sterile water daily;'! 2) irrigate her trach with normal saline every shift, and
as needed, up to six times a day; and 3) change the trach’s inner canula every one to three
days. CMS Ex. 5, at 93. According to the facility’s treatment sheet, a registered nurse,
identified here as RN D, cleaned the trach during the day shift (6:00 a.m. to 2:00 p.m.) on
March 7, 2009. CMS Ex. 5, at 135. However, at 2:35 p.m. on March 7, R1 told Surveyor
Mount that the cleaning had not been done that day. CMS Ex. 16, at 15 (Mount Decl.);
CMS Ex. 10, at 8. Surveyor Mount observed that the exposed port end of the trach tube
and flange were dirty with yellow-brown residue that appeared to be tinged with blood.
CMS Ex. 16, at 15 (Mount Decl.); CMS Ex. 10, at 7. Surveyor Mount interviewed RN D
later that day. RN D acknowledged that she had initialed the treatment sheet, claiming to
have completed R1’s tracheostomy care, when, in fact, she had not provided the care.
She said that another nurse, LVN E, had provided the care, although RN D admitted that
she had neither witnessed the cleaning nor verified that it had been done. CMS Ex. 16, at
15 (Mount Decl.); CMS Ex. 10, at 13; CMS Ex. 10, at 99 (RN D statement). The
surveyor spoke to LVN E who confirmed that she had not provided the tracheostomy
care. CMS Ex. 16, at 15.

' Especially puzzling was LVN F’s failure to wash her hands before opening the sterile
suction kit. Hand-washing prior to providing any type of patient care is so basic that any
staff member would be expected to do it at a matter of course.

"An inner canula is a small tube used with the tracheostomy tube to keep the trach clear
and free of secretions.
14

Petitioner again dismisses this as “merely the result of a misunderstanding between two
nurses.” P. Br. at 22.'* Again, I disagree. First, the nurses did not follow the doctor’s
order in treating R1’s trach, which unquestionably puts the facility out of substantial
compliance with §§ 483.25(k) and 483.20(k)(3)(i)."°. Then, RN D greatly compounded
the deficiency by falsifying the documentation to claim that she had provided a service
that neither she nor anyone else had provided. A nurse should never document that she
provided care that she did not provide. Such an action jeopardizes resident safety and
undermines the integrity of the facility records, making it impossible for a reviewer to
know whether necessary care has been provided. I consider this falsification of a
treatment record very serious and find baffling the facility’s dismissive attitude toward
that falsification. No evidence suggests that the facility’s administration investigated or
counseled the nurses, or took any other actions to insure the reliability of its
documentation.

C. CMS is entitled to summary judgment that the facility was not
in substantial compliance with 42 C.F.R. § 483.13(c)(2)-(4),
because the undisputed evidence establishes that the facility failed
to investigate thoroughly allegations that the only nurse on duty
neglected a resident exhibiting symptoms of respiratory distress.

Facility failure to investigate. Consistent with the regulatory requirement (42 C.F.R.

§ 483.13(c)), facility policy requires that staff “report in accordance with the law any
incident/event in which there is cause to believe a resident’s physical or mental health or
welfare has been or may be adversely affected by abuse or neglect caused by another
person.” CMS Ex. 15, at 78, 136. The policy also specifically directs that staff
immediately report alleged violations to the administrator or alternate. The administrator
must investigate thoroughly all allegations. Staff must prepare an incident report. The
facility must report the results of the investigation to the state agency within five working
days, providing specific information. CMS Ex. 15, at 136-37.

CMS maintains that the facility violated the regulation and its own policy, because its
administrative staff did not investigate or report the incident as required. CMS Br. at
12.4

” Tnote that Dr. Steinberg does not defend the nurse’s action. P. Ex. 2.

® Nursing failure to follow the doctor’s order also puts the facility out of substantial
compliance with 42 C.F.R. § 483.20(k)(3)(i), because staff did not meet professional
standards of quality. However, CMS has not cited that regulation here.

CMS also says that the DON eventually reported the incident, citing CMS Ex. 11. But
that document refers to an entirely different incident involving a different resident.

I note, however, that the incident referred to in the report was not reported until three
weeks after it occurred, not within five days, as called for in the facility’s policy.
15

Petitioner does not claim that its administrator (or anyone else) investigated the incident,
nor has Petitioner come forward with any evidence of an investigation. To the contrary,
Petitioner insists that no investigation was warranted because LVN B acted appropriately,
and, Petitioner charges, the witnesses, and “those commenting on the nurse’s actions, are
either not qualified to question his actions or have made statements based on second-hand
information.” P. Br. at 17.

Petitioner also claims that “[b]ased on the unwarranted comments of staff members who
were not qualified to question” the nurse’s judgment, the Director of Nurses (DON) “took
the initiative” to question the staff members instead of immediately dismissing the
grumblings. She concluded that the “‘incident’ was not an incident at all . . . and that it
did not warrant formal investigation or reporting.” In Petitioner’s words: she
“thankfully” was able to “‘sort through all the statements and determine that LVN ‘B’ had

acted appropriately and thus there was no ‘incident’ to report.” P. Br. at 15, 18.

l accept that the DON questioned staff members and then decided not to investigate or
report. However, as the above discussion shows, her conclusions were simply wrong.
This was a serious incident that put a vulnerable resident at risk for serious harm, and
even death. Moreover, the regulation requires that “all alleged violations” involving
neglect be “reported immediately” to the facility administrator and to the appropriate
state officials. 42 C.F.R. § 483.13(c)(2). The facility must have evidence that all alleged
violations are thoroughly investigated, and the results of those investigations must be
reported to the administrator or his designee and to the appropriate state officials within
five working days of the incident. 42 C.F.R. § 483.13(c)(3) and (4). The DON was not
free to dismiss the allegations as unfounded without conducting and documenting a
thorough investigation. Her admitted failure to do so puts the facility out of substantial
compliance with 42 C.F.R. § 483.13(c).

I note, finally, that, by not investigating, the facility loses an opportunity to analyze and
correct its problems. Century Care of Crystal Coast, DAB No. 2076, at 21 (2007), aff'd,
No. 07-1491, 2008 WL 2385505 (4" Cir. 2008).'°

D. CMS’s determination that the facility’s deficiencies posed
immediate jeopardy to resident health and safety is not clearly
erroneous.

For summary judgment purposes, I am not bound to accept Dr. Steinberg’s legal
conclusions with respect to the scope and severity of the deficiencies cited. See
Guardian Health Care Ctr., DAB No. 1943, at 11. Dr. Steinberg suggests that an

'S Professional standards of quality also require that incidents be reported and
investigated, so the facility’s failure to investigate also puts it out of substantial
compliance with 42 C.F.R. § 483.20(k)(3)(i).
16

immediate jeopardy determination should be reserved for cases involving deaths that are
“directly and definitively attributed to grossly negligent practices or equipment in a
facility.” P. Ex. 2, at 5 (Steinberg Decl. § 12). Dr. Steinberg misconstrues the legal
standard.

Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause,
“serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. CMS’s
determination as to the level of a facility’s noncompliance (which would include an
immediate jeopardy finding) must be upheld, unless it is “clearly erroneous.” 42 C.F.R.
§ 498.60(c). The Departmental Appeals Board has observed repeatedly that the “clearly
erroneous” standard imposes on facilities a “heavy burden” to show no immediate
jeopardy and has sustained determinations of immediate jeopardy where CMS presented
evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy
exists.” Barbourville Nursing Home, DAB No. 1962, at 11 (2005); Florence Park Care
Ctr., DAB No. 1931, at 27-28 (2004), citing Koester Pavilion, DAB No. 1750 (2000);
Daughters of Miriam Ctr., DAB No. 2067, at 7, 9 (2007).

Because I find that a nurse’s refusal and/or inability to provide emergency care to a
resident in respiratory distress is likely to cause serious harm or even death, I do not find
clearly erroneous CMS’s immediate jeopardy determination. Moreover, although the
cited deficiencies most dramatically affected R1 on the night of February 27, they
represent systemic problems relating to facility staffing, staff training, and administrative
policies.

E. The penalties imposed are reasonable.

I next consider whether the CMPs are reasonable by applying the factors listed in 42
C.F.R. § 488.438(f): 1) the facility’s history of noncompliance; 2) the facility’s financial
condition; 3) factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of
culpability, which includes neglect, indifference, or disregard for resident care, comfort
or safety. The absence of culpability is not a mitigating factor. The factors in 42 C.F.R.
§ 488.404 include: 1) the scope and severity of the deficiency; 2) the relationship of the
deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior
history of noncompliance in general and specifically with reference to the cited
deficiencies.

In reaching a decision on the reasonableness of the CMP, I consider whether the evidence
supports a finding that the amount of the CMP is at a level reasonably related to an effort
to produce corrective action by a provider with the kind of deficiencies found, and in
light of the above factors. I am neither bound to defer to CMS’s factual assertions, nor
free to make a wholly independent choice of remedies without regard for CMS’s
discretion. Barn Hill Care Ctr., DAB No. 1848, at 21 (2002); Community Nursing
Home, DAB No. 1807, at 22 et seg. (2002); Emerald Oaks, DAB No. 1800, at 9 (2001);
CarePlex of Silver Spring, DAB No. 1683, at 8 (1999).

17

CMS has imposed penalties of $7,050 per day for the period of immediate jeopardy,
which is in the middle of the penalty range ($3,050-$10,000). For the remaining period
of substantial noncompliance, CMS imposed a penalty of $700 per day, which is at the
low end of the penalty range ($50-$3,000). 42 C.F.R. § 488.438(a)(1).

CMS does not cite facility history as a factor that justifies a higher CMP. Petitioner has
not argued that its financial condition affects its ability to pay the penalty.

With respect to the remaining factors, I consider all of the facility’s deficiencies, which
were substantial. In addition to those discussed above, the facility was not in substantial
compliance with 42 C.F.R. § 483.13(a), which provides that each resident be free from
any physical or chemical restraints not required to treat the resident’s medical symptoms,
because it restrained residents without adequate assessments and without any showing of
medical necessity. CMS Ex. 3, at 1-10.

The facility was also not in substantial compliance with 42 C.F.R. § 483.25(h), which
requires that the facility insure that the resident’s environment remain as free of accident
hazards as possible. The facility must “take all reasonable steps to ensure that a resident
receives supervision and assistance devices that meet his or her assessed needs and
mitigate foreseeable risks of harm from accidents.” Briarwood Nursing Ctr., DAB No.
2115, at 5 (2007). The surveyors found multiple instances of resident falls, some
resulting in injuries, attributable to misuse of restraints and/or inadequate supervision.
CMS Ex. 3, at 78-82.

Nor was the facility in substantial compliance with 42 C.F.R. § 483.75(1)(1) and (5),
which requires that facilities maintain their clinical records in accordance with accepted
professional standards and practices. Records must be complete and accurately
documented and must reflect the services provided. CMS based this citation on RN D’s
falsely documenting that she provided services that she did not provide. CMS Ex. 3, at
103-05.

Thus, the facility had multiple deficiencies in addition to those that centered on its
treatment of R1. And its neglect of R1, specifically with respect to her tracheostomy
care, tracheal suctioning, and respiratory care, was widespread. Staff were not
adequately trained. They were incapable of properly suctioning her trach using sterile
techniques. At least one nurse falsely claimed to have provided tracheostomy care that
she did not provide. Administrative staff neither investigated the deception nor took
steps to insure that it not be repeated, for which I find it culpable.

Moreover, I have already commented at length on the facility’s deficiencies relating to
R1’s treatment on the night of February 27. Only one ill-trained LVN was on duty that
night. Petitioner itself admits that financial considerations affected its decision to limit
the number and qualifications of nurses on duty. I find the facility culpable for failing to
insure that a sufficient number of adequately-trained professional staff were available to
handle this easily foreseeable emergency. Moreover, the penalty here must be significant
18

enough to induce the facility to have sufficient, trained professional staff available at all
times.

Finally, the facility is culpable, because the only nurse on duty neglected its vulnerable
resident, placing her at risk of serious harm or even death. Then, when the situation
finally came to the DON’s attention, she dismissed it as insignificant and failed to
investigate or report. Again, the facility is culpable for the neglect and for its failure to
investigate.

Based on all of these significant deficiencies, I do not find the penalties imposed
unreasonable.

IV. Conclusion

Accepting as true all of Petitioner’s factual assertions, I find that the facility was not in
substantial compliance with Medicare requirements governing 42 C.F.R. §§ 483.13(a);
483.13(c) and (c)(2)-(4); 483.20(k)(3)(i); 483.25(h); 483.25(k), and 483.75(I)(1) and (5).
The facility’s deficiencies posed immediate jeopardy to resident health and safety and the
penalties imposed ($7,050 per day for fifteen days of immediate jeopardy and $700 a day
for thirty-four days of substantial noncompliance that was not immediate jeopardy) are
reasonable in light of the scope and severity of the deficiencies and the facility’s
culpability. I therefore grant CMS’s motion for summary judgment.

/s/
Carolyn Cozad Hughes
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Jennifer Yvonne Berry, M.D.,
Petitioner
v.
The Inspector General.
Docket No. C-09-408
Decision No. CR2126
Date: May 3, 2010
DECISION

The determination of the Inspector General (I.G.) to exclude Petitioner, Jennifer Yvonne
Berry, M.D., from participating in Medicare and other federally-funded health care
programs for a period of 14 years is sustained.

I. Procedural Background

The L.G. notified Petitioner on February 27, 2009 that she was being excluded from
participation in Medicare, Medicaid, and all federal health care programs for a period of
14 years, pursuant to section 1128(a)(1) of the Social Security Act (Act). The basis of
Petitioner’s exclusion was her conviction in the United States District Court for the
Northern District of Mississippi'of a criminal offense related to the delivery of an item or
service under Medicare or a state health care program. See Act § 1128(a)(1), 42 U.S.C. §
1320a-7(a)(1); 42 C.F.R. § 1001.101(a). The I.G. told Petitioner that the enhanced period
of her exclusion was based on three aggravating factors and no mitigating factors. LG.
Ex. 1.

' The February 27, 2009 LG. notice incorrectly states that the basis of Petitioner’s
exclusion was her conviction in the United States District Court for the Southern District
of Florida, Miami Division. However, by letter dated May 6, 2009, the I.G. amended the
February notice. 1G. Ex. 2. I find that this error caused no prejudice to Petitioner.
Acting through counsel, Petitioner perfected her appeal of the I.G.’s proposed action by
her April 23, 2009 Request for Hearing. In her Request, Petitioner stated that she was
challenging both the basis of the I.G.’s imposition of a sanction against her and the length
of the exclusion. Request for Hearing at 2.

On May 8, 2009, I convened a prehearing conference by telephone, the substance of
which is summarized in my Order of May 14, 2009. A schedule for motion practice was
established, and I required that Petitioner clarify her assertions in this appeal. Petitioner
responded on May 18, 2009 with Petitioner’s Clarification of Assertions on Appeal. (P.
Clarification). In her response, Petitioner stated that she was not challenging the basis of
the exclusion action by the I.G. and acknowledged “that a conviction did take place that
provides the jurisdictional basis for the exclusion action” currently before me. P.
Clarification at 1. Petitioner then narrowed the scope of her appeal to challenge only
whether the length of the proposed exclusion was reasonable. Petitioner stated that the
“TG. improperly considered the aggravating factors available to it, as well as failed to
properly take into consideration the mitigating factors set out in 42 C.F.R. §
1001.102(c).” Id. at 2.

An interval of motion practice followed, thus narrowing the scope of her appeal, and the
substantive issues raised in that motion practice were addressed by the parties’ filings in
response to my Order of May 14, 2009.°

My Order Addressing Issues for Summary Disposition and Giving Notice of Hearing of
September 9, 2009 summarized my view of the issues and provided the parties with an
explanation of why I believed that some of the issues could be resolved by the LG.’s
Motion. I also explained that one material issue of fact could not be resolved without an
evidentiary hearing. The parties were told that the uncontested evidence demonstrated
that: (1) the LG. has a basis for the proposed exclusion; and (2) there is no material issue
of fact as to the existence of the aggravating factors on which the I.G. proposed to rely in
enhancing Petitioner’s period of exclusion. The parties were told that because the L.G.
had conceded that the determination to enlarge Petitioner’s period of exclusion to 14
years was not affected or influenced by consideration of Petitioner’s asserted mitigating
factor, the factual question of Petitioner’s cooperation was a material and unresolved
issue of fact. I further ruled that the legal question of the reasonableness of the I.G.’s
weighing of the three aggravating factors would remain impossible to assess, until the
factual question of the existence of the unconsidered mitigating factor had been resolved.
The Order went on to set this matter for hearing.

2 On June 18, 2009, the I.G. filed a motion for summary disposition accompanied by five
exhibits in support of its motion. On July 20, 2009, Petitioner filed an answer (P. Answer
Brief) and attached three exhibits in support of her brief. On August 6, 2009, the I.G.
filed a Reply Brief. On August 17, 2009, Petitioner filed her Reply Brief.
I convened the hearing on November 9 and 10, 2009 in Houston, Texas. What remained
before me at the hearing were two principal questions: (1) the legal question of the
reasonableness of the length of Petitioner’s exclusion; which legal question depended on
(2) the fact question of whether, as Petitioner asserts, a mitigating factor exists —
specifically, that Petitioner cooperated with investigating and prosecuting officials in
such a fashion as to invoke the terms of 42 C.F.R. § 1001.102 (c)(3) — that the I.G. did
not consider in determining the length of Petitioner’s period of exclusion.

During the hearing, I admitted without objection Petitioner’s Exhibits 1-10 (P. Exs.) and

1.G. Exhibits 1-12 (1.G. Exs. 1-12). Tr. at 12. The I.G. proffered two additional exhibits

designated I.G. Exs. 13 and 14. Tr. at 215-16. Petitioner objected. Tr. at 216. Because I
found that the I.G.’s proffer of the two exhibits was untimely and therefore prejudicial to

Petitioner, I declined to admit them to the evidentiary record. Tr. at 118-20; 221.

The post-hearing briefing cycle in this case closed for purposes of 42 C.F.R. § 1005.20(c)
with the Civil Remedies Division’s receipt of the I.G.’s Post-Hearing Answer on March
15, 2010.

II. Issues

The legal issues before me are expressly limited to those set out at 42 C.F.R. § 1001.2007(a)(1).
In the specific context of this record they are:

a. Whether the LG. has a basis for excluding Petitioner from participating in Medicare,
Medicaid, and all other federal health care programs, pursuant to section 1128(a)(1) of
the Act;

and
b. Whether the 14-year length of the proposed period of exclusion is unreasonable.

The controlling authorities require that these issues be resolved in favor of the I.G.’s
position. Section 1128(a)(1) of the Act mandates Petitioner’s exclusion, since her
predicate conviction is not in dispute. A five-year period of exclusion is the minimum
period established by section 1128(c)(3)(B) of the Act, 42 U.S.C. § 1320a-7(c)(3)(B).
The enhancement of that period to 14 years is not unreasonable. All three of the
aggravating factors relied on by the I.G. to enhance the period are fully demonstrated in
the record before me, and no mitigating factor has been proven by Petitioner.
III. Controlling Statutes and Regulations

Section 1128(a)(1) of the Act, 42 U.S.C. § 1320a-7(a)(1), requires the exclusion from
participation in Medicare, Medicaid, and all other federal health care programs of any
individual or entity convicted of a criminal offense related to the delivery of an item or
service under title XVIII of the Act (the Medicare program) or any state health care
program. The terms of section 1128(a)(1) are restated in similar language at 42 C.F.R.
§ 1001.101(a)(1). This mandatory exclusion must be imposed for a minimum of five
years. Section 1128(c)(3)(B) of the Act; 42 U.S.C. § 1320a-7(c)(3)(B).

The minimum period may be lengthened if the I.G. has determined that certain
aggravating factors are present. 42 C.F.R. § 1001.102(b). Certain mitigating factors may
be considered as a basis for reducing the period of exclusion when the presence of
aggravating factors is found to justify a period of exclusion greater than five years. 42
CFR. § 1001.102(c).

The standard of proof is a preponderance of the evidence. 42 C.F.R. § 1001.2007(c).
Petitioner bears the burden of proof and 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) and (c).

IV. Findings and Conclusions

I find and conclude as follows:

1. On November 17, 2007, Petitioner appeared with counsel in the United States District
Court for the Northern District of Mississippi, pleaded guilty to one felony count of Theft
of Government Money, in violation of 18 U.S.C. § 641, and was adjudged guilty on her
plea. I.G. Ex. 5; 1.G. Ex. 9, at 21-31.

2. Judgment of conviction on her guilty plea was entered against Petitioner, and sentence
was imposed on her on July 16, 2008. I.G. Ex. 3; I.G. Ex. 10.

3. As part of her sentence, Petitioner was ordered to pay restitution to the Medicare
program in the amount of $458,237.00. I.G. Ex. 3, at 4.

4. The acts for which Petitioner was convicted occurred from about December 2003 to
about May 2005. I.G. Ex. 4.

5. Petitioner was sentenced to a six-month term of home detention, to be followed by a
five-year term of probation. IG. Ex. 3, at 2,5.
6. On February 27, 2009, the L.G. notified Petitioner that she was being excluded from
participation in Medicare, Medicaid, and all federal health care programs for the period
of 14 years, pursuant to section 1128(a)(1) of the Act. I.G. Ex. 1.

7. On April 23, 2009, Petitioner perfected her appeal from the L.G.’s action.

8. The guilty plea, adjudication of guilt, judgment of conviction, and sentence based on
Petitioner’s violation of 18 U.S.C. § 641, as described in Findings | and 2 above,
constitute a conviction related to the delivery of an item or service under Medicare or
Medicaid within the meaning of section 1128(a)(1) of the Act. Berton Siegel, D.O., DAB
No. 1467 (1994).

9. There is a basis for Petitioner’s exclusion pursuant to section 1128(a)(1) of the Act.

10. The I.G. has shown by a preponderance of the evidence that the acts for which
Petitioner was convicted resulted in a loss of $5,000 or more to a government program or
one or more entities, the aggravating factor established by 42 C.F.R. § 1001.102(b)(1).

1. The I.G. has shown by a preponderance of the evidence that the acts for which
Petitioner was convicted were committed over a period of one-year or more, the
aggravating factor established by 42 C.F.R. § 1001.102(b)(2).

2. The I.G. has shown by a preponderance of the evidence that the sentence imposed
upon Petitioner, as the result of her conviction, included incarceration, the aggravating
factor established by 42 C.F.R. § 1001.102(b)(5).

3. Petitioner has not shown by a preponderance of the evidence any mitigating factor
that I am authorized to consider under 42 C.F.R. § 1001.102(c) and has, in particular,
failed to establish the mitigating factor established by 42 C.F.R. § 1001.102(c)(3)(i).

4. Petitioner’s exclusion for five years is mandatory pursuant to section 1128(c)(3)(B)
of the Act. 42 U.S.C. § 1320a-7(c)(3)(B). That period is presumptively reasonable.

15. Exclusion of Petitioner for an additional period of nine years, and thus for a total
period of exclusion of 14 years, is not unreasonable based upon the three aggravating
factors in this case and the absence of any mitigating factors.

V. Overview and Background of Petitioner, Johnnie Lee Winfield, and
RehabSource, Inc.

To discuss with clarity the relationship among the entities RehabSource, Inc., Johnnie
Lee Winfield, and Petitioner, and to understand Petitioner’s role in that relationship, it is
important to provide this brief overview, although I note that it is not intended as a
substitute for my findings listed above.
Petitioner, a physician, owned and operated RehabSource, Inc., which provided physical
therapy services to patients in Greenville, Mississippi. Petitioner also served as the
Medical Director at RehabSource, Inc. Tr. at 27, 28. At all material times, she was
married to Johnnie Lee Winfield.

In late October 2005, there was a meeting among federal prosecutors and investigators
and Petitioner. At that meeting, counsel represented Petitioner. Tr. at 283. Sometime in
September 2007, a second meeting occurred, again among federal officials and Petitioner.
This meeting occurred at Petitioner’s attorney’s office. Tr. at 42. The general purpose of
these meetings was to explore the possibility of Petitioner’s cooperating with the federal
authorities and to provide Petitioner with an opportunity to explain “her side of the story”
to them.

Petitioner was neither cooperative nor convincing at those meetings, for she, Johnnie Lee
Winfield, and RehabSource, Inc. were indicted on June 22, 2006 for submitting false
claims to Medicare for physical therapy and evaluations that were not provided as
claimed. It was alleged, inter alia, that Petitioner, through RehabSource, Inc., billed
Medicare for evaluations and physical therapy services that: (1) were not ordered
pursuant to a proper medical evaluation; (2) were not reasonable and necessary for the
medical condition of the patient under Medicare guidelines; (3) were not ordered by a
physician as an integral part of a physician’s continuing active participation and
management of the course of treatment; (4) were not provided by qualified persons; or (5)
were not actually provided. The period of time during which these actions were alleged
to have occurred was from December 2003 through May 2005. I.G. Ex. 4; LG. Ex. 9, at
27-31.

On November 5, 2007, the criminal trial in the case of United States v. Jennifer Yvonne
Berry, Johnnie Lee Winfield, and RehabSource, No. 4:06CR104-P-B (2007) commenced
in the United States District Court for the Northern District of Mississippi. Tr. at 43.
Johnnie Lee Winfield was at the time Petitioner’s husband and was charged as her co-
conspirator. On Friday, November 9, 2007 — while the trial was in progress — Winfield
entered a plea of guilty to one count of Conspiracy to Commit Health Care Fraud, in
violation of 18 U.S.C. § 1347. I.G. Ex. 11. The trial continued with Petitioner, the
remaining personal defendant, and RehabSource, Inc. as a corporate defendant, but not
for long. On the seventh day of trial, Tuesday, November 13, 2007, Petitioner entered
her personal plea of guilty to one count of Theft of Government Money, a violation of 18
U.S.C. § 641, and entered a plea of guilty for the corporation RehabSource, Inc. on an
identical charge. I.G. Ex. 5; 1.G. Ex. 9.

Petitioner’s criminal conduct resulted in RehabSource Inc.’s receipt of $458,237.00 in
proceeds traceable to the offense to which Petitioner pleaded guilty. 1.G. Ex. 4; LG. Ex.
5. The terms of Petitioner’s plea agreement acknowledged that amount and also required
that she consent to the civil settlement of treble damages of $1,374,711.00 arising from
her criminal behavior. I.G. Ex. 5; I.G. Ex. 9.
The I.G. undertook exclusion proceedings against Johnnie Lee Winfield, relying on
section 1128(a)(1) of the Act, the same authority relied on here. The I.G.’s exclusion of
Winfield for 15 years was upheld by Administrative Law (ALJ) Judge Steven T. Kessel
in Johnnie Lee Winfield, DAB CR1971 (2009).

VI. Discussion

The essential elements necessary to support an exclusion based on section 1128(a)(1) of
the Act are: (1) the individual to be excluded must have been convicted of a criminal
offense; and (2) the criminal offense must have been related to the delivery of an item or
service under Title XVIII of the Act (Medicare) or any state health care program. See
Tamara Brown, DAB No. 2195 (2008); Thelma Walley, DAB No. 1367 (1992); Boris
Lipovsky, M.D., DAB No. 1363 (1992); Lyle Kai, R.Ph., DAB CR1262 (2004), rev'd on
other grounds, DAB No. 1979 (2005); see also Russell Mark Posner, DAB No. 2033, at
5-6 (2006). As discussed above, Petitioner has conceded that these two essential
elements are present in the case now before me. And, as noted above, the record amply
demonstrates that a factual basis exists for that concession. The essential elements of this
exclusion have been proven.

The L.G. relies on three aggravating factors set out at 42 C.F.R. § 1001.102(b)(1), (b)(2),
and (b)(5) in seeking to enhance to 14 years the period of Petitioner’s exclusion.
Petitioner does not challenge the actual existence of the three factors but argues that: the
1.G. incorrectly weighed the incarceration factor at 42 C.F.R. § 1001.102(b)(5) in setting
Petitioner’s period of exclusion; and failed to take into consideration Petitioner’s alleged
cooperation with federal officials. I address each of the three aggravating factors and
Petitioner’s alleged mitigating factor below.

The first aggravating factor on which the I.G. relies is present when “[t]he acts resulting
in the conviction, or similar acts... caused . . . a financial loss to a Government program
. .. of $5,000 or more.” 42 C.F.R. § 1001.102(b)(1). The court records show that
Petitioner was required to pay $458,237.00 in restitution to the Medicare program. I.G.
Ex. 4, at 3; LG. Ex. 5, at 3; LG. Ex. 5, at 5-6. Appellate panels of the Departmental
Appeals Board (Board) have characterized restitution in amounts greater than the
regulatory standard as an “exceptional aggravating factor” that is entitled to significant
weight. Jeremy Robinson, DAB No. 1905 (2004); Donald A. Burstein, Ph.D., DAB No.
1865 (2003). Iagree. The I.G. has established this first aggravating factor.

The second aggravating factor asserted by the I.G. is specified at 42 C.F.R.

§ 1001.102(b)(2). That factor is present if “[t]he acts that resulted in the conviction, or
similar acts, were committed over a period of one-year or more.” Here, the language of
the charge to which Petitioner pleaded guilty demonstrates the existence of this factor.
The criminal Information describes the period during which Petitioner “did knowingly
embezzle, steal, and purloin money of the Centers for Medicare and (sic) Medicaid
Services” as “beginning on or about around December 2003, and continuing without
interruption until on or about May 2005.” I.G. Ex. 4. The acts that resulted in
Petitioner’s conviction took place over a period of about 18 months, half again more than
the one-year regulatory standard. The I.G. has established this second aggravating factor.

The regulation at 42 C.F.R. § 1001.102(b)(5) provides that where “[t]he sentence
imposed by the court included incarceration,” an aggravating factor is present.
“Incarceration” is defined as “imprisonment or any type of confinement with or without
supervised release, including, but not limited to, community confinement, house arrest
and home detention.” 42 C.F.R. § 1001.2. Here, Petitioner was sentenced to a six-month
period of home detention, and this sentence constitutes an aggravating factor within 42
C.F.R. § 1001.102(b)(5).

Petitioner does not deny that the sentence to home detention amounted to a sentence of
incarceration within the meaning of the regulation. Rather, Petitioner argues that her six-
month home detention should be given less weight than traditional incarceration in
assessing her period of exclusion, since “the absence of any term of imprisonment must
be relevant . . . in deciding the inherent trustworthiness of the Petitioner and the
reasonableness of the period of exclusion.” P. Reply Brief at 2.

Petitioner relies on John (Juan) Urquijo, DAB No. 1735 (2000) to support her assertion
that not all forms of incarceration are to be treated as deserving equal weight. Petitioner
asserts that if the underlying issue is the trustworthiness of an individual to resume
participation in federal health programs, it is reasonable to give less weight to a sentence
consisting primarily of home detention, which could include permission to work outside
the home, rather than prison. Petitioner’s reliance on Urquijo and this argument is
misplaced.

I have noted that Petitioner’s home detention is defined by the regulation as incarceration
at 42 C.F.R. § 1001.2, and there is no dispute among the parties that this definition fits
these circumstances. However, the facts in Urquijo are not analogous to those in the case
before me. First, the petitioner in Urquijo was involved in a long-running conspiracy, but
his own participation in that conspiracy lasted less than a year. In the case before me, in
contrast with Urquijo, Petitioner was culpable for the entire period of the scheme, which
lasted 18 months. Second, in Urquijo, the United States District Judge specifically stated
when sentencing petitioner that she believed that the petitioner was a good person who
had made a mistake. Urquijo, DAB 1735, at n.2. However, in the case before me now,
Petitioner has not been able to present similar evidence. In reviewing the transcript of
Petitioner’s July 16, 2008 sentencing hearing, the contrast with the petitioner in Urquijo
is as stark as it is revealing. During her sentencing hearing, Petitioner advanced to the
sentencing judge the proposition that, to avoid revocation of her Texas medical license as
one result of her felony conviction, “my company could take the pleas of felony and I
could take a plea of misdemeanor,” thus allowing her to continue to practice at a hospital
in Texas where she was employed at the time. In forceful terms, United States District
Judge Pepper made clear his position in declining Petitioner’s proposal, stating directly to
Petitioner, “[t]he consequences of the actions that led us here today are large. Let’s just
say that. I didn’t put you in that box. You did.” LG. Ex. 10, at 7. In announcing his
decision to impose a sentence outside the advisory guidelines, Judge Pepper stated that
the “[rJeason for the sentence outside the advisory guideline is to provide restitution to
victims of the offense.” I.G. Ex. 10, at 14.

However, I believe that the Board’s decision in Jeremy Robinson, DAB No. 1905, is
instructive in this context. The Board noted, “in Jason Hollady, M.D., [DAB 1855] at 12
(2002)], we determined that a nine-month incarceration with work release was
‘relatively substantial’ and more than ‘token’ incarceration.” Jeremy Robinson, DAB No.
1905, at 12 (citing Jason Hollady, M.D., a/k/a Jason Lynn Hollady, DAB 1855, at 9-10
(2002)). In Hollady, the Board found irrelevant to the issue of whether Petitioner’s
sentence included incarceration the fact that a few days after petitioner’s sentence began

e was placed on a work release program. Jason Hollady, M.D., DAB 1855, at 9-10.
Following the Board’s guidance in Robinson, | find that Petitioner’s six-month term of
incarceration was more than “token” incarceration and that it manifested the sentencing
court’s “relatively substantial” doubt of Petitioner’s trustworthiness. See, e.g., 1G. Ex.
10, at 7. I can find nothing unreasonable in the I.G.’s reliance on Petitioner’s six-month
period of home detention to enhance Petitioner’s period of exclusion. The I.G. has
established this third aggravating factor.

As noted above, evidence relating to aggravating factors may be countered by evidence
relating to any of the mitigating factors set forth at 42 C.F.R. § 1001.102(c)(1)-(3). It is
well-settled that Petitioner bears the burden of going forward with the evidence and the
burden of persuasion, in her effort to establish the mitigating factor at issue. See Stacey
R. Gale, DAB No. 1941 (2004); Arthur C. Haspel, D.P.M., DAB No. 1929 (2004); see
also Dr. Darren James, D.P.M., DAB No. 1828 (2002). The parties were specifically
advised of this requirement in a letter issued at my direction on October 26, 2009, and
were directed to those cases for guidance.

The central point of contention in this case is not the existence of a basis for the proposed
exclusion, nor is it the existence of the three aggravating factors. It is Petitioner’s
allegation that she cooperated with federal investigators and the United States Attorney’s
Office in the Northern District of Mississippi within the meaning of 42 C.F.R. §
1001.201(c)(3)(i). This cooperation, Petitioner asserts, constituted a mitigating factor
that the I.G. failed to consider in setting the length of her exclusion.

Petitioner contends that it was her persuasive efforts in pleading with her husband and co-
conspirator before and during the trial that led to his decision to reach the plea agreement
and hence resulted in his conviction. Petitioner asserts that these persuasive efforts
entitle her to claim the existence of a mitigating factor, a factor that the I.G. should have,
but did not, take into consideration in determining her period of exclusion. Tr. at 32-34,
36-37; P. Post-Hearing Brief at 6.
10

The regulation at issue is set out here in pertinent part:

(3) The individual’s or entity’s cooperation with Federal or State officials
resulted in —

(i) Others being convicted or excluded from Medicare, Medicaid and all
other Federal health care programs... .

42 C.F.R. § 1001.102(c)(3)(i).

There are two conditions that must be satisfied as matters of fact for Petitioner to
establish the “cooperation” mitigating factor. First, she must show by a preponderance of
the evidence that she cooperated with Federal officials. Second, she must show by a
preponderance of the evidence that her cooperation resulted in the conviction of another.
And I emphasize that in this case it was entirely Petitioner’s burden to show that her
cooperation with government authorities resulted in Johnnie Lee Winfield’s conviction.
Stacey R. Gale, DAB No. 1941, at 9 (2004).

In Gale, the Board recited, and I recite here, the preamble to the regulation at 42 C.F.R. §
1001.102 where the drafters of the regulation stated what they had in mind as they
created the mitigating factor based on cooperation:

As a practical matter, . . . [w]e believe . . . that only significant cooperation

should be considered mitigating, and the imposition of a sanction of a result
of cooperation establishes that the cooperation was significant. We believe

that the significance of cooperation is more properly evaluated by those in a
position to utilize the information, rather than by an ALJ... .

Stacey R. Gale, DAB No. 1941, at 12 (citing 57 Fed. Reg. 3298, 3315 (Jan. 29, 1992)).

Petitioner asserts that she persuaded her husband to plead guilty, and she goes on to make
the claim that he “would not have pled guilty or accepted his conviction BUT FOR the
actions of the Petitioner begging him and pushing him in that direction.” Petitioner
argues that her actions are sufficient to establish “cooperation” under the regulation and
thus to justify a re-evaluation of her period of exclusion. P. Post-Hearing Brief at 13. It
must be emphasized, however, that Petitioner does not suggest that the investigators or
the prosecutors instigated or suggested her “begging” and “pushing” Winfield to seek a
plea bargain, and there is no hint or suggestion whatsoever in this record that the
investigators or prosecutors were even aware of her “begging” and “pushing.” Thus,
even if accepted at its absolute face value, Petitioner’s story of “begging” and “pushing”
represents an entirely unilateral, independent, undirected, and undisclosed effort,
motivated not by an interest in aiding law enforcement, but explicitly by self-interest. Tr.
at 116-20.
11

The record before me shows plainly what the limits of that face value are. First,
during the November 2009 hearing, Petitioner was directly questioned as to
whether anyone in the prosecution asked her to persuade her husband to plead
guilty, to which she responded: “I don’t believe so.” Tr. at 120. Petitioner
testified that when she recognized the implications of what was at stake for her —
“her freedom, her medical license and her pregnancy” — it was then that she
“began to push Mr. Winfield regarding the possibility of accepting a deal.” P.
Post-Hearing Brief at 10; Tr. at 46-49. When asked whether she was thinking of
helping the prosecution when she urged her husband to plead guilty, she
specifically conceded that she was not and flatly admitted that “I was thinking of
myself and my pregnancy.” Tr. at 118-19.

Moreover, the federal officials with whom Petitioner claims she cooperated testified at
the November 2009 hearing, and each rejected Petitioner’s description of her role in
Winfield’s plea. Consistently, each vigorously disputed Petitioner’s claim of
cooperation, and each did so from a perspective of intimate familiarity with the evidence,
both sides’ trial tactics, the dynamics of the proceedings, and the timing of Winfield’s
sudden decision to strike the best deal he could before the jury might deprive him of that
choice.

OIG Special Agent U. Powell testified about her reaction upon hearing Petitioner’s claim
of cooperation, stating “I thought it was a joke, it was so absurd. And I guess it was so
absurd to me because it had never — — I knew that she had entered a plea.” Tr. at 179.
Special Agent Powell testified that “some of her statements were also contradictory to the
medical records that we had and other evidence that we had already gathered,” and when
asked if Petitioner provided any information that was helpful to the investigation, Special
Agent Powell responded bluntly: “Not a single thing.” Tr. at 172-73.

FBI Special Agent B. Harris-Williams testified with reference to the October 2005
proffer meeting: “We found that she did not provide any relevant information that would
assist us in our investigation.” Tr. at 224 As to Petitioner’s claim of cooperation with
the government by facilitating Winfield’s plea she testified: “To be honest, I thought . . .
it was a joke.” Tr. at 227.

Assistant U.S. Attorney R. W. Coleman, co-counsel for the prosecution in the criminal
case, testified: “[S]he didn’t cooperate . . . [t]here is no cooperation . . . she never
cooperated.” Tr. at 252. AUSA Coleman testified: “Dr. Berry did not assist in any way,
much less give substantial assistance.” Tr. at 257.

Assistant U.S. Attorney C. Ivy, Jr., who served as lead prosecutor in the criminal case,
testified: “[S]he did not cooperate.” Tr. at 304. Before reaching that summation of his
views, however, AUSA Ivy explained that there had been an opportunity in open court —
at Petitioner’s sentencing hearing, the transcript of which appears in this record as 1.G.
12

Ex. 10 — for the prosecution, the defense, or both, to assert Petitioner’s cooperation.
AUSA Ivy pointed out:

There are many ways for that to be expressed. One would actually
be the pre-sentence investigation report that we just covered. A
second place for a person to raise that would be at the sentencing
hearing, which would have been raised by either her attorney, or I as
basically stated in the plea would announce what has taken place
regarding her cooperation. That is not going to appear in this
sentencing transcript, as, again, she did not cooperate.

Tr. at 304.

Some brief mention is warranted of testimony from L.T. Quifiones, Winfield’s defense
counsel, during the criminal trial. See P. Ex. 4. The story of her very late entry into the
case strongly suggests some last-minute manipulation by Winfield intended to delay the
start of the trial. Tr. at 135-37. Once she had undertaken Winfield’s defense, she
described her strategic situation thus: “I just felt that with all that the Government had,
we weren’t equipped to handle it . . . it was too late in the game . . . [t]here were no
motions filed . . . we were really under the gun in my opinion, and understaffed.” Tr. at
138-39. Ms. Quifiones was particularly clear that: “I felt that they were at a complete
disadvantage, and I began having serious conversations with my client in regards to
whether or not there should be a deal taken.” Tr. at 139. It is simply impossible to
reconcile these statements with the notion that Petitioner was the deciding factor in
Winfield’s decision to plead guilty, and I cannot accept that notion as credible. I find
instead that Ms. Quifiones’ testimony describes an extremely desperate situation for the
Winfield defense, a situation in which virtually the only option open was to, in AUSA
Ivy’s words, “make the best deal he could possibly get.” Tr. at 309.

In summary, then, the testimonial evidence presented at the hearing clearly establishes
that the federal officials who were instrumental in the prosecution of Petitioner and
Winfield were of the opinion that Petitioner was not only uncooperative, but believed that
if she had been cooperative in precisely the way she claims, they would have been aware
of it. That testimonial evidence is corroborated to a large extent by the absence of any
references to her alleged cooperation in any of the official records where it might be
expected to appear. I.G. Exs. 3-5, 8-10, and 12. Significantly, there is no reference to
Petitioner’s cooperation in the transcript of Winfield’s guilty-plea proceeding. .G. Ex.
11. And weighing heavily on the scale against Winfield’s and Petitioner’s credibility are
several additional factors. First, both Petitioner and Winfield are crimen falsi felons
convicted of crimes involving dishonesty and untruthfulness. Winfield’s capacity for
dishonesty is particularly florid. Tr. at 307-09. Winfield’s credibility is further damaged
by the fact that he was willing to shape his testimony in an effort to create an impression
of government heavy-handedness, but was shown to have testified falsely on the point.
Tr. at 204-06, 211. Next, what Petitioner and Winfield say now under oath is at variance

13

with positions they have taken elsewhere under oath. I. G. Ex 11. Third, they can offer
no objective corroboration of their stories, although some corroboration is to be expected
in court records. Fourth, the reported reactions of Petitioner’s defense attorney to
Winfield’s change-of-plea strongly suggests that Winfield’s plea was a detriment to
Petitioner, rather than the benefit she claims it was. Tr. at 176, 226-27, 230-33, 254-55,
310-11. Fifth, the timing of Petitioner’s plea, tendered only after four more days of trial
once Winfield had pleaded guilty and only after she herself had testified and been cross-
examined, belies her claim that she had a motive to “cooperate” in her fear for her health
and her pregnancy. Tr. at 309. Sixth, it cannot be overlooked that while the incentives
Petitioner has claimed as the basis for her “cooperation” have been shown to be illusory,
there is a very real and non-illusory incentive — earlier access to the financial benefits of
Medicare practice — for her to claim the mitigating factor now. Seventh, for the reasons
I have noted above, the Quifiones testimony must be evaluated with great caution when it
describes Petitioner’s role in Winfield’s change-of-plea.

With all of those considerations in mind, I find and conclude that the testimony given by
Petitioner and Winfield is inherently untrustworthy, logically inconsistent, objectively
unsupported, and in all material matters false. I find and conclude that Petitioner did not
attempt to persuade Winfield to plead guilty and that she did not thereby assist Federal
authorities in winning his conviction.

But there must needs be more to this discussion than a rejection of Petitioner’s
version of the facts, for both Petitioner and the I.G. have vigorously debated
another way of looking at this appeal. Both sides have made arguments that seem
at times to posit arguendo a state of facts very much as Petitioner claims them to
be. Their arguments then debate this question: assuming arguendo that Petitioner
did through her own unilateral actions persuade Winfield to plead guilty, but also
assuming that the prosecuting authorities neither solicited nor encouraged her
efforts, were unaware of them at the time, and remained unaware of them through
the conclusion of all proceedings in both prosecutions, can Petitioner’s efforts be
characterized as “cooperation” as contemplated by 42 C.F.R. § 1001.102(c)(3)(i)?

There need be little debate about the meaning of the word. It is defined in BLACK’S LAW
DICTIONARY (8th ed. 2004) as contemplating “. . . individuals who join together for a
common benefit.” The COMPACT OXFORD ENGLISH DICTIONARY (Rev. ed. 2008)
definition is based on the word “cooperate,” which is defined as meaning to “work jointly
towards the same end.” The I.G.’s briefing cites similar definitions. 1.G.’s Post-Hearing
Brief at 8-9. Petitioner does likewise. P. Post-Hearing Brief at 3-4. The common thread
in this web of lexicography is the repetition of the words “joint” or “together,” and the
sense that whatever else may be intended by the term “cooperation,” it necessarily
excludes actions taken unilaterally by a party, even if those actions are helpful to another
party remaining wholly unaware of them, bearing no responsibility for them, and
exercising no control over them.
14

There need be even less debate about the importance of excluding such unilateral actions
from the concept of “cooperation” when the concept involves the enforcement of criminal
laws. A person who proposes to “cooperate” with law enforcement officers without
informing them of her or his intentions is effectively beyond their control. That person is
at best a “Lone Ranger,” and at worst a “cowboy cop.” The officers cannot control his
actions, her methods, her targets, or his goals. The officers have no assurances of his
personal agenda or her bona fides. If they are very lucky, the officers will only learn of
this “cooperation” when it brings them useful information. If they are unlucky, they will
learn of these activities when something goes wrong — potentially, very dangerously
wrong. It is beyond reasonable argument that the regulation’s drafters could have
intended their words to be understood as including such an unsupportable reading,
particularly when it is recalled “that the scope of section 1001.102(c)(3) is narrow.”
Marcia C. Smith, a/k/a Marcia Ellison Smith, DAB No. 2046 (2006).

The plain meaning of the regulation excludes the unsolicited, unilateral, and undisclosed
activity in which Petitioner asserts that she engaged. Even if it occurred exactly as she
and Winfield say, it does not amount to “cooperation” within the meaning of 42 C.F.R. §
1001.102(c)(3)(i) and would not entitle her to claim the benefit of the mitigating factor
there set out. In so concluding, | intend this conclusion to stand as an entirely
independent and fully sufficient reason for rejecting Petitioner’s claim for the benefit of
42 CFR. § 1001.102(c)(3)(i).

The 1.G.’s discretion in weighing the importance of aggravating and mitigating factors in
exclusion cases commands great deference when reviewed by Administrative Law
Judges. Jeremy Robinson, DAB No. 1905; Keith Michael Everman, D.C., DAB No.
1880 (2003); Stacy Ann Battle, D.D.S., et al., DAB No. 1843 (2002). That deference
requires that the ALJ not substitute her or his own view of what period of exclusion

might appear “best” in any given case for the view of the I.G. on the same evidence. In
general, the Board has insisted that ALJs may reduce an exclusionary period only when
they discover some meaningful evidentiary failing in the aggravating factors upon which
the I.G. relied, or when they discover evidence reliably establishing a mitigating factor
not considered by the I.G. in setting the enhanced period. Jeremy Robinson, DAB No.
1905. Where, as here, all three of the aggravating factors on which the I.G. relied are
present and there are no mitigating factors, a holding that the exclusion period chosen by
the I.G. is unreasonable could be reached only through the substitution of views that the
doctrine of deference forbids.

Accordingly, the only question now before me is whether the length of the period of
exclusion is within a reasonable range. In this case, it may be noted that the proposed 14-
year period of Petitioner’s exclusion is in fact one year shorter than the 15-year period
imposed on Winfield and affirmed as reasonable in Johnnie Lee Winfield, DAB CR1971.
It is comparable to periods I have held reasonable on similar facts and aggravating factors
in Deborah Morris, DAB CR1877 (2008) and Julius Williams, III, DAB CR1464 (2006).
It is commensurate with the range established as reasonable in: Russell Mark Posner,

15

DAB No. 2033; Stacey R. Gale, DAB No. 1941; Jeremy Robinson, DAB No. 1905;
Thomas D. Harris, DAB No. 1881 (2003); Fereydoon Abir, M.D., DAB No. 1764
(2001); and Joann Fletcher Cash, DAB No. 1725 (2000). I have no difficulty in
concluding that the length of the period of exclusion is within a reasonable range.

VII. Conclusion

For the reasons set forth above, the I.G.’s exclusion of Jennifer Yvonne Berry, M.D.,
from participation in Medicare, Medicaid, and all other federal health care programs for
a period of 14 years pursuant to the terms of section 1128(a)(1) of the Act is sustained.

/s/
Richard J. Smith
Administrative Law Judge