Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

NBM Healthcare Inc.,
Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-679
Decision No. CR2500

Date: February 10, 2012

DECISION DENYING MOTION TO RECONSIDER ORDER
DISMISSING CASE

I deny the motion of Petitioner, NBM Healthcare, Inc., to reconsider a previous order
dismissing this case. Petitioner has not shown good cause pursuant to 42 C.F.R. § 498.72
for vacating the Order Dismissing Case that Administrative Law Judge (ALJ) Steven T.
Kessel issued on November 23, 2011.

On January 27, 2012, Petitioner filed a Motion to Reconsider Order Dismissing Case
(Motion) accompanied by three exhibits (P. Exs. 1-3). ALJ Kessel previously issued an
order dismissing this matter for abandonment pursuant to 42 C.F.R. § 498.69. Because
ALJ Kessel subsequently left the Civil Remedies Division (CRD) of the Departmental
Appeals Board, this matter was transferred to me upon receipt of Petitioner’s Motion.

This matter was dismissed after Petitioner failed to file its pre-hearing exchange and
subsequently failed to respond to an Order to Show Cause. P. Ex. 1. Petitioner now
claims that its previous attorney did not keep Petitioner’s officers apprised of the status of
this case. Petitioner states that it “did not know about the deadline for a pre-hearing
exchange, did not know that [its former attorney] had failed to file a pre-hearing
exchange, have not seen CMS’s pre-hearing exchange, did not know that the Court had
issued a show cause order, and did not know that [its former attorney] had failed to
respond to the show cause order.” Motion at § 3. Petitioner claims it did not learn of the
Order Dismissing Case until December 8, 2011, when a copy of the Order was forwarded
to Petitioner by email, and “[t]his notice came in the midst of an enormous, multi-state
transaction that was consuming the attention of each of Petitioner’s officers, followed by
an equally daunting transition period that is ongoing, which has prevented the officers
from focusing on this Case.” Motion at § 3.

Petitioner also explains that, subsequent to the filing of the Order Dismissing Case,'
Petitioner’s former attorney filed a voluntary withdrawal of appeal. Motion at § 2; P. Ex.
2. Petitioner states that it did not know that its former attorney had filed the voluntary
withdrawal, and Petitioner did not authorize this filing.

Petitioner has since retained new counsel and now requests that the CRD reconsider the
November 23, 2011 Order Dismissing Case and “give Petitioner one last chance to appeal
the CMS decision underlying this Case.” Motion at § 4. Petitioner also included an
Affidavit of Petitioner’s Vice President in support of Petitioner’s Motion. P. Ex. 3. In
addition to the reasons listed above, Petitioner’s Vice President states:

[Petitioner] retained the services of . . . a law firm in Kentucky to help
[Petitioner] with the appeal... . A principal with the firm . . . told the
officers of [Petitioner], including me, that she was making progress in
discussions with CMS. Being put at ease [Petitioner’s] officer’s, who work
with several home health agencies across the nation, turned to another
matter; the sale of multiple home health agencies . . . . That transaction
involved constant work on the part of [Petitioner’s] officers, particularly in
the month of December. On or about December 8, in the middle of the
work on the transaction, I was notified, via email, for the first time, of the
Order Dismissing Case and the filing . . . of a Voluntary Withdrawal of
Appeal. I reviewed the Order and the Withdrawal and was, quite frankly,
stunned ....

P. Ex. 3.

Finally, Petitioner’s Vice President states that, “[b]ecause of the transaction,
[Petitioner’s] officers did not have time to focus on the notification. . . . [Petitioner] has
retained new counsel, has put in place a mechanism for routine updates on this Case, and
will not, ever, allow another deadline to pass without the Court’s permission.” P. Ex. 3.

'T note that Petitioner’s Voluntary Withdrawal of Appeal is dated November 23, 2011,
the same date that ALJ Kessel issued the Order Dismissing Case for abandonment. P.
Ex. 2.
An ALJ may vacate a dismissal of a request for hearing if the party files a request to vacate
within 60 days from receipt of the dismissal notice, and the party shows good cause for
vacating the dismissal. 42 C.F.R. § 498.72. A definition of “good cause” does not exist in
the applicable regulations, and the “[Departmental Appeals] Board has never attempted to
provide an authoritative or complete definition of the term ‘good cause’... .” Hillcrest
Healthcare, L.L.C., DAB No. 1879, at 5 (2003).

Other ALJ’s have interpreted the term “good cause” as a circumstance or circumstances
beyond the party-litigant’s ability to control. See, e.g., Sedgewick Health Care Ctr., DAB
CR596 (1999); Jackson Manor Health Care, Inc., DAB CR545 (1998). One ALJ stated
that “the avoidable failure of counsel to discharge responsibilities on a [party's] behalf or
the miscommunication between a [party] and its counsel have been found to constitute
avoidable human error, rather than circumstances beyond the [party's] ability to control.”
Cmty. Care Ctr. of Seymour, DAB CR758 (2001). The ALJ also stated that “delays or
failures of communication caused by Petitioner's former counsel, or resulting from
counsel's withdrawal, were entirely within Petitioner's control. It was Petitioner's
ultimate responsibility, as the party in interest, to remain apprised of the status of its
appeal, and to take whatever steps were necessary to continue its appeal once counsel
withdrew.” Id. See also Sedgewick Health Care Ctr., DAB CR596 (finding a
misunderstanding between petitioner and its counsel avoidable human error).

Similarly, I find here that the failure of Petitioner’s former legal counsel to keep
Petitioner’s officers apprised of the status of this case does not form the basis for a good
cause determination. Moreover, Petitioner’s explanation that it did not learn of the Order
Dismissing Case until December 8, 2011, and “[t]his notice came in the midst of an
enormous, multi-state transaction that was consuming the attention of each of Petitioner’s
officers . .. which has prevented the officers from focusing on this Case” also does not
demonstrate a basis for good cause. Finally, Petitioner’s statement that it “has retained
new counsel, has put in place a mechanism for routine updates on this Case, and will not,
ever, allow another deadline to pass” is not sufficient to establish good cause either. The
circumstances Petitioner has presented, while regrettable, were not beyond its ability to
control and do not establish the good cause necessary to vacate ALJ Kessel’s dismissal.
Accordingly, I must deny Petitioner’s Motion.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Mariken Wogstad-Hansen, PhD, LP, RN, CNS,
(NPI: 17807000039)

Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-823
Decision No. CR2498

Date: February 7, 2012

DECISION

Petitioner, Mariken Wogstad-Hansen, appeals the determination of the Centers for
Medicare and Medicaid Services (CMS) to deny her enrollment application into the
Medicare program as a clinical nurse specialist. Considering it is undisputed that
Petitioner does not possess a Master’s degree in a defined clinical area of nursing or a
Doctor of Nursing Practice (DNP) degree, as the Social Security Act (Act) and the
implementing regulations require, I affirm CMS’s denial and grant its motion for
summary judgment.

I. Background

Petitioner is currently certified as a Clinical Nurse Specialist in Adult Psychiatric and
Mental Health with the American Nurses Credentialing Center (ANCC). P. Ex. 1.
Petitioner is also a Registered Nurse, a Licensed Psychologist, has a Bachelor of Science
in Nursing, a Master’s degree in Counseling and Student Personnel Psychology, and a
Doctoral degree in Philosophy. P. Exs. 1-3; CMS Ex. 2, at 1.
On or about January 14, 2011, Petitioner submitted an application to enroll in the
Medicare program as a clinical nurse specialist. CMS Ex. 1. On April 28, 2011,
Wisconsin Physician Services (WPS), a Medicare contractor, denied Petitioner’s
application noting that she did not “meet the conditions of enrollment,” specifically, the
requirement that she have “a Master’s degree in a defined area of nursing or a Doctor of
Nursing Practice (DNP) degree.” CMS Ex. 3.' Petitioner requested reconsideration of
her denial. CMS Ex. 5. In her reconsideration request, Petitioner asserted that, when
ANCC originally certified her in 1993, she “held a Master’s Degree in Counseling and
Student Personnel Psychology .... At that time, this degree was considered essentially
equivalent” to a Master’s degree in nursing. Consequently, Petitioner met the
requirements to become credentialed as a clinical nurse specialist with the ANCC. Jd.
On August 11, 2011, a Hearing Officer affirmed the denial of Petitioner’s enrollment
application noting that Petitioner did not meet the educational requirements set out for
clinical nurse specialists at 42 C.F.R. § 410.76(b)(2). CMS Ex. 6.

On September 21, 2011, Petitioner filed a hearing request to appeal this reconsideration
decision. An Acknowledgment and Pre-Hearing Order was sent to the parties on
September 29, 2011. On October 31, 2011, CMS submitted a combined motion for
summary judgment and pre-hearing brief (CMS Br.) and six proposed exhibits (CMS
Exs. 1-6). On November 30, 2011, Petitioner filed her response (P. Br.) and three
proposed exhibits (P. Exs. 1-3). In the absence of objections, I admit into the record
CMS Exs. 1-6 and P. Exs. 1-3.

II. Applicable Law and Regulations

A supplier? who wishes to directly bill Medicare for services provided to beneficiaries as
a clinical nurse specialist must enroll with Medicare. The Act defines a clinical nurse
specialist as an individual who: “(i) is a registered nurse and is licensed to practice
nursing in the State in which the clinical nurse specialist services are performed; and (ii)
holds a master’s degree in a defined clinical area of nursing from an accredited
educational institution.” 42 U.S.C. § 1395x(aa)(5)(B). The implementing regulation
requires that a clinical nurse specialist under Medicare must: (1) be a registered nurse
who is currently licensed to practice in the State where he or she practices and be
authorized to perform the services of a clinical nurse specialist in accordance with State
law; (2) have a Master’s degree in a defined clinical area of nursing from an accredited
educational institution or a Doctor of Nursing Practice doctoral degree (DNP); and (3) be

' Petitioner separately filed a Medicare enrollment application to enroll as a clinical
psychologist, which was approved by letter dated April 29, 2011. See CMS Ex. 4.

> For Medicare purposes, the Act defines “supplier” to mean “a physician or other
practitioner, a facility, or other entity (other than a provider of services) that furnishes
items or services.” Act § 1861(d); 42 U.S.C. § 1395x(d).
certified as a clinical nurse specialist by a national certifying body that has established
standards for clinical nurse specialists and that is approved by the Secretary of Health and
Human Services. 42 C.F.R. § 410.76.

III. Issue

The sole issue in this case is whether Petitioner’s application to be enrolled in Medicare
as a clinical nurse specialist was properly denied.

IV. Discussion

My findings of fact and conclusions of law are set forth in italics and bold in the
discussion captions of this decision.

a. This case is appropriate for summary judgment.

CMS argues that it is entitled to summary judgment. Members of the Departmental
Appeals Board Board (Board) explained the standard for summary judgment:

Summary judgment is appropriate when the record shows that there
is no genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. . .. The party moving for
summary judgment bears the initial burden of showing that there are
no genuine issues of material fact for trial and that it is entitled to
judgment as a matter of law. . . . 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 — a fact that, if proven, would
affect the outcome of the case under governing law. . . . In
determining whether there are genuine issues of material fact for
trial, the reviewer must view the evidence in the light most favorable
to the non-moving party, drawing all reasonable inferences in that
party’s favor.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations omitted).
An Administrative Law Judge’s (ALJ’s) role in deciding a summary judgment motion
differs from its role in resolving a case after a hearing. The ALJ should not assess
credibility or evaluate the weight of conflicting evidence. Holy Cross Vill. at Notre
Dame, Inc, DAB No. 2291, at 5 (2009). The Board has further stated, “[i]n addition, it is
appropriate for the tribunal to consider whether a rational trier of fact could regard the
parties’ presentation as sufficient to meet the evidentiary burden under the relevant
substantive law.” Dumas Nursing and Rehab., L.P., DAB No. 2347, at 5 (2010).
I have accepted all of Petitioner’s factual assertions as true. In addition, I have drawn all
reasonable inferences in her favor. However, no dispute exists that Petitioner lacks the
requisite Master’s degree in a defined clinical area of nursing or a DNP required for
enrollment in the Medicare program.

b. Petitioner was ineligible to enroll in the Medicare program as a clinical
nurse specialist because she did not have the required Master’s degree ina
defined clinical area of nursing or a Doctor of Nursing Practice degree.

Petitioner states that she has “been prescribing since 1995 and [has] a DEA number, and
is] dual licensed in the State of Minnesota as a doctoral level psychologist and a Clinical
Nurse Specialist in Adult Psychiatric and Mental Health Nursing with prescriptive
authority.” P. Br. at 1. She also states that the ANCC “made a determination at the time
she] was credentialed that [she] did meet the educational requirements” necessary to be a
clinical nurse specialist. Jd. Further, Petitioner has provided an unofficial transcript
showing she earned three credits in a nursing class as part of her doctoral degree in
Philosophy. P. Ex. 2, at 7. I accept as true, for the purposes of summary judgment, that
Petitioner has all of the educational degrees, background, and credentials that she asserts
in her hearing request and her brief.

To enroll in Medicare as a clinical nurse specialist, an individual must possess, among
other qualifications, a Master’s degree in a defined clinical area of nursing or a DNP.
Petitioner’s Master’s degree is in Counseling and Student Personnel Psychology. CMS
Ex. 5. Her doctoral degree is in Philosophy. P. Ex. 2. I find neither of these degrees
meets the Medicare educational requirements, and the ANCC certification is not a
substitute for it.

This case is similar to the facts in Jerilyn Mitchell, CR1657 (2007). The petitioner in
Jerilyn Mitchell was also a Registered Nurse licensed in Minnesota, authorized to
perform services in Minnesota as a clinical nurse specialist, and had been certified by
ANCC in 1993 as a clinical nurse specialist. Similarly, the petitioner in Jerilyn Mitchell
held a Master’s degree in counseling, not in nursing. The ALJ held that a Master’s
degree in counseling does not satisfy the requirement in 42 C.F.R. § 410.76(b)(2) of a
Master’s degree in nursing and noted that ALJs have “read and applied the relevant
statutes and regulations narrowly . . . and have required strict compliance with the literal
terms of those statutes’ and regulations’ credentialing requirements.” Jerilyn Mitchell,
DAB CR1657, at 7 (citing Revathi Bingi. Ed.D., DAB CR1573 (2007); Roger Aveyard,
DAB CR1558 (2007); Susan Stevens, DAB CR1511 (2006); Rosalyn L. Oliall, DAB
CR1472 (2006); Dorothy Rose Hrynyk, DAB CR1444 (2006)).

Although the Petitioner requests that I take a less narrow approach, Congress has not
granted CMS any discretion to accept another degree as functionally equivalent to a
degree requirement. See Jeanne E. Day McIntee, DAB CR2073, at 4-5 (2010); see also
Elizabeth M. Prokay, DAB CR1860, at 3-4
for a “functional equivalent” exception to t
waiver of the statutory qualifying criteria);

(2008) (holding that the Act does not allow
e participation criteria and does not permit a
Rosalyn L. Olian, DAB CR1472 (2006)

(finding a degree in counseling will not even substitute for a statutorily required degree in

social work).

Congress establishes the scope of, and the
of federal law. In this instance, Congress h

imitations on, Medicare coverage as a matter
as expressly chosen to limit the progam’s

coverage of clinical nurse specialists to services furnished by individuals holding a

Master’s degree or higher in the field of nut

rsing. My discretion in this matter is limited

considering nothing in the Medicare statute and regulations authorize an ALJ to ignore,

waive, or otherwise make an exception to t

at limitation on the ground that Petitioner is

professionally competent. See, e.g., Sheldon Pinsky, Phd., LICSW, DAB No. 2412, at 3
(2011). Accordingly, I grant CMS’s motion for summary judgment.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Patricia Marie Meade,
(O.L. File Number 7-10-40357-9),

Petitioner
v.

The Inspector General,
Department of Health and Human Services.

Docket No. C-11-834
Decision No. CR2497
Date: January 30, 2012

DECISION

Petitioner, Patricia Marie Meade, is excluded from participating in Medicare, Medicaid,
and all federal health care programs pursuant to section 1128(a)(4) of the Social Security
Act (Act) (42 U.S.C. § 1320a-7(a)(4)), effective August 18, 2011, based upon her
conviction of a felony criminal offense related to the unlawful manufacture, distribution,
prescription, or dispensing of a controlled substance. There is a proper basis for
exclusion. Petitioner’s exclusion for 10 years’ is mandatory pursuant to section
1128(c)(3)(G)(i) of the Act (42 U.S.C. § 1320a-7(c)(3)(G)(i)) because Petitioner was
convicted on a previous occasion of an offense for which an exclusion may be effected
under section 1128(a).

* Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after
the period of exclusion expires. Reinstatement is not automatic upon completion of the
period of exclusion.
I. Background

The Inspector General (I.G.) for the Department of Health and Human Services (HHS)
notified Petitioner by letter dated July 29, 2011, that she was being excluded from
participation in Medicare, Medicaid, and all federal health care programs for a period of
10 years. The I.G. advised Petitioner that she was being excluded pursuant to section
1128(a)(4) of the Act, based on her conviction in the United States District Court,
Southern District of Iowa, of a criminal offense, as defined under federal or state law,
related to the unlawful manufacture, distribution, prescription, or dispensing of a
controlled substance. The I.G. further advised Petitioner that the 10-year period of
exclusion was mandatory under section 1128(c)(3)(G)(i) of the Act because Petitioner
had been convicted of two offenses for which exclusion could be effected under section
1128(a) of the Act. The LG. cited Petitioner’s federal conviction in 2000 of conspiracy to
manufacture and attempting to manufacture methamphetamine. I.G. Exhibit (1.G. Ex.) 1.

Petitioner requested a hearing by undated letter that was postmarked September 24, 2011,
and received at the Civil Remedies Division of the Departmental Appeals Board on
September 29, 2011. The case was assigned to me for hearing and decision on
September 30, 2011. A prehearing telephone conference was convened on October 20,
2011, the substance of which is memorialized in my order of October 24, 2011. During
the prehearing conference, Petitioner waived an oral hearing, and the parties agreed that
the matter could be resolved based on the parties’ briefs and documentary evidence. I set
a briefing schedule.

The LG. filed a brief (I.G. Br.) on November 21, 2011, with I.G. Exs. 1 through 11.
Petitioner filed her brief in opposition (P. Br.) on December 22, 2011, with Petitioner’s
exhibits (P. Exs.) 1 through 8. The L.G. filed a reply brief (I.G. Reply) on January 5,
2012, with I.G. Ex. 12. No objection has been made to my consideration of I.G. Exs. 1
through 12 and P. Exs. | through 8, and they are admitted.

IL. Discussion
A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an
Administrative Law Judge (ALJ) hearing and judicial review of the final action of the
HHS Secretary (Secretary). The right to hearing before an ALJ is set forth in 42 C.F.R.
§§ 1001.2007(a) and 1005.2, and the rights of both the sanctioned party and the LG. to
participate in a hearing are specified by 42 C.F.R. § 1005.3. Either or both parties may
choose to waive appearance at an oral hearing and to submit only documentary evidence
and written argument for my consideration. 42 C.F.R. § 1005.6(b)(5). In this case,
Petitioner waived an oral hearing, and the parties agreed to and have submitted only
documentary evidence and written argument for my consideration.
Pursuant to section 1128(a)(4) of the Act, the Secretary must exclude from participation
in the Medicare and Medicaid programs any individual convicted for an offense that
occurred after August 21, 1996, under federal or state law, of a criminal offense
consisting of a felony relating to the unlawful manufacture, distribution, prescription, or
dispensing of a controlled substance. Pursuant to section 1128(i) of the Act (42 U.S.C. §
1320a-7(i)), an individual is convicted of a criminal offense when: (1) a judgment of
conviction has been entered against him or her in a federal, state, or local court whether
an appeal is pending or the record of the conviction is expunged; (2) there is a finding of
guilt by a court; (3) a plea of guilty or no contest is accepted by a court; or (4) the
individual has entered into any arrangement or program where judgment of conviction is
withheld.

Exclusion for a minimum period of five years is mandatory for any individual or entity
convicted of a criminal offense for which exclusion is required by section 1128(a) of the
Act. Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)). However, if an excluded
individual has “been convicted on one previous occasion of one or more offenses for
which an exclusion may be effected,” a 10-year exclusion is mandated. Act §
1128(c)(3)(G)(i); 42 C.F.R. § 1001.102(d)(1). Pursuant to 42 C.F.R. § 1001.102(b), an
individual’s period of exclusion may be extended based on the presence of specified
aggravating factors. Only if the aggravating factors justify an exclusion of longer than
five years, however, are mitigating factors considered as a basis for reducing the period
of exclusion to no less than five years or 10 years in this case. 42 C.F.R. § 1001.102(c).
The I.G. does not cite any aggravating factors in this case and asserts that a 10-year
exclusion is mandated because Petitioner was convicted on a previous occasion of one or
more offenses for which an exclusion may be effected. Thus, I cannot consider
mitigating factors to reduce Petitioner’s period of exclusion in this case.

Petitioner bears the burden of going forward with the evidence and the burden of
persuasion on any affirmative defenses or mitigating factors. The I.G. bears the burden
on all other issues. 42 C.F.R. § 1005.15(b), (c). The burden of persuasion is judged by a
preponderance of the evidence. 42 C.F.R. §§ 1001.2007(c), 1005.15(d). Petitioner may
not obtain review of, or collaterally attack on procedural or substantive grounds, a
criminal conviction or civil judgment of a federal, state, or local court or another
government agency that is cited in this forum as the basis for exclusion. 42 C.F.R. §
1001.2007(d).

B. Issue
The Secretary has by regulation limited my scope of review to two issues:
Whether there is a basis for the imposition of the exclusion; and

Whether the length of the exclusion is unreasonable.
42 C.F.R. § 1001.2007(a)(1).
C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the pertinent findings of fact and
analysis.

1. Petitioner’s request for hearing is timely, and I have jurisdiction.

2. There is a basis to exclude Petitioner pursuant to section 1128(a)(4)
of the Act.

There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction.

The LG. cites section 1128(a)(4) of the Act as the basis for Petitioner’s mandatory
exclusion. The statute provides:

(a) MANDATORY EXCLUSION.-The Secretary shall
exclude the following individuals and entities from
participation in any Federal health care program (as defined
in section 1128B(f)):

... (4) FELONY CONVICTION RELATING TO
CONTROLLED SUBSTANCE.—Any individual or
entity that has been convicted for an offense which
occurred after the date of the enactment of the Health
Insurance Portability and Accountability Act of 1996,
under Federal or State law, of a criminal offense
consisting of a felony relating to the unlawful
manufacture, distribution, prescription, or dispensing
of a controlled substance.

The statute requires that the Secretary exclude from participation in Medicare or
Medicaid any individual or entity: (1) convicted of a felony criminal offense under
federal or state law; (2) where the offense occurred after August 21, 1996, the date of
enactment of the Health Insurance Portability and Accountability Act of 1996; and (3) the
criminal offense relates to the unlawful manufacture, distribution, prescription, or
dispensing of a controlled substance.

There is a basis for Petitioner’s exclusion. Petitioner does not dispute that: on March 27,
2008, her guilty plea to one count of distribution on about April 16, 2007 of at least five
grams of methamphetamine, a controlled substance, was accepted by the United States
District Court, Southern District of lowa; that a judgment of conviction and sentence was

entered by the court on April 23, 2010; or that the offense of which she was convicted
was a felony. There is no dispute that the acceptance of Petitioner’s guilty plea and the
entry of a judgment of conviction was a conviction within the meaning of section 1128(i)
of the Act. I.G. Exs. 2-6; P. Ex. 8; P. Br. at 2.

I conclude that the elements of section 1128(a)(4) of the Act are satisfied, and
Petitioner’s exclusion is required.

3. Pursuant to section 1128(c)(3)(G)(i) of the Act, a 10-year period of
exclusion is mandatory.

4. A 10-year period of exclusion is not unreasonable in this case as a
matter of law. Act § 1128(c)(3)(G)(i).

Congress requires that an individual or entity excluded pursuant to section 1128(a) of the
Act be excluded for no fewer than five years. Act § 1128(c)(3)(B). Congress also
requires that an individual who is excluded pursuant to section 1128(a) of the Act be
excluded for 10 years if the individual has a prior conviction for an offense that would
trigger exclusion under section 1128(a). Act § 1128(c)(3)(G)(i). Petitioner does not
dispute that she was previously convicted on May 22, 2000 in the United States District
Court, Northern District of Iowa, of the felony offense of conspiracy to manufacture and
attempt to manufacture methamphetamine in June 1999. I.G. Ex. 7-10; P. Br. at 2.
Accordingly, her exclusion for 10 years is mandated by Congress and not unreasonable as
a matter of law.

Petitioner argues that a 10-year period of exclusion is unreasonable. P. Br. at 2, 5.
Petitioner urges me to consider that: she has suffered from the disease of addiction and
has a family history of addiction; she has been in recovery for four years and participated
successfully in a drug abuse program while incarcerated; it is unfair to exclude her for 10
years because her first conviction occurred 11 years ago; her criminal offenses were
committed while she was “active in [her] addiction”; her drug convictions had nothing to
do with theft or fraud; she has been a registered nurse for over 25 years and has been a
good nurse and mother; her only career has been nursing and she needs to work as a
nurse to support herself and her children; she assisted federal and local authorities in the
investigation and prosecution of other individuals and was granted a sentence reduction
due to her assistance; and she has been able to retain her nursing license. P. Br. I have
no authority to reduce Petitioner’s period of exclusion based on any of her arguments.
The LG. has not cited any aggravating factors to extend Petitioner’s period of exclusion
beyond the minimum required by law, and I have no authority to reduce the period of
exclusion below 10 years. 42 C.F.R. §§ 1001.102(c) and (d), 1005.4.

Petitioner also argues that the effective date of her exclusion is unfair, in that it should
have begun on March 27, 2008, the date her guilty plea was accepted. Petitioner’s
argument is unavailing. I have no authority to review the timeliness of the I.G.’s
imposition of the exclusion or to adjust the effective date of the exclusion. Randall Dean
Hopp, DAB No. 2166, at 2-4 (2008).

III. Conclusion

For the foregoing reasons, Petitioner is excluded from participating in Medicare,
Medicaid, and all federal health care programs for the minimum statutory period of 10
years effective August 18, 2011.

/s/
Keith W. Sickendick
Administrative Law Judge


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

Hieu Trung Mai, D.D.S.
(O.I. File No. H-10-40553-9),

Petitioner
Vv.

The Inspector General,
Department of Health and Human Services.

Docket No. C-11-764
Decision No. CR2494
Date: January 25, 2012
DECISION

Petitioner, Hieu Trung Mai, D.D.S., is excluded from participating in Medicare,
Medicaid, and all federal health care programs pursuant to section 1128(a)(1) of the
Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)), effective August 18, 2011, based
upon his conviction of a criminal offense related to the delivery of an item or service
under Medicare or a state health care program. There is a proper basis for exclusion.
Petitioner’s exclusion for the minimum period! of five years is mandatory pursuant to
section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).

' Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after
the period of exclusion expires. Reinstatement is not automatic upon completion of the
period of exclusion.
I. Background

The Inspector General (I.G.) for the Department of Health and Human Services (HHS)
notified Petitioner by letter dated July 29, 2011, that he was being excluded from
participation in Medicare, Medicaid, and all federal health care programs for a period of
five years, the minimum statutory period. The I.G. advised Petitioner that he was being
excluded pursuant to section 1128(a)(1) of the Act based on his conviction in the
Superior Court of California, County of Orange, of a criminal offense related to the
delivery of an item or service under Medicare or a state health care program.

Petitioner timely requested a hearing by letter dated August 30, 2011. The case was
assigned to me for hearing and decision. A prehearing telephone conference was
convened on September 28, 2011, the substance of which is memorialized in my order of
the same date. During the prehearing conference, Petitioner, who appeared with his
office manager, waived an oral hearing. Accordingly, I set a briefing schedule for the
parties.

The L.G. filed a motion for summary judgment? and a supporting brief (I.G. Br.) on
October 27, 2011, with LG. exhibits (I.G. Exs.) 1 through 8. Petitioner filed a brief in
opposition to the I.G. motion on November 28, 2011 (P. Br.), with no documentary
evidence. The I.G. filed a reply brief on December 13, 2011. No objections have been
made to my consideration of the offered exhibits, and all are admitted.

II. Discussion
A. Applicable Law

Petitioner’s rights to an administrative law judge (ALJ) hearing and judicial review of the
final action of the HHS Secretary (Secretary) are provided by section 1128(f) of the Act
(42 U.S.C. § 1320a-7(f)).

The standard of proof is a preponderance of the evidence, and there may be no collateral
attack of the conviction that provides the basis of the exclusion. 42 C.F.R.

> Petitioner waived an oral hearing. Therefore, a motion for summary judgment is not
necessary or appropriate. Rather, I may resolve this case on the merits, judging the
credibility and weight of the evidence and resolving any disputes of material fact. See
e.g. Lyle Kai, R.Ph., DAB No. 1979 (2005).
§ 1001.2007(c), (d). Petitioner bears the burden of proof and the burden of persuasion on
any affirmative defenses or mitigating factors, and the I.G. bears the burden on all other
issues. 42 C.F.R. § 1005.15(b).

B. Issue
The Secretary has by regulation limited my scope of review to two issues:
Whether there is a basis for the imposition of the exclusion; and
Whether the length of the exclusion is unreasonable.
42 CFR. § 1001.2007(a)(1).
C. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by the pertinent findings of fact and
analysis.

1. Petitioner’s request for hearing was timely and I have jurisdiction.

2. There is a basis to exclude Petitioner pursuant to section 1128(a)(1)
of the Act.

There is no dispute that Petitioner’s request for hearing was timely and I have jurisdiction

On September 10, 2010, Petitioner pled guilty in the Superior Court, Orange County,
California, to a misdemeanor offense of “Presenting False Medi-Cal Claims.” I.G. Ex. 2,
at 2, LG. Ex. 4, at 1; LG. Ex. 5. The state court accepted Petitioner’s guilty plea,
suspended imposition of sentence, and placed Petitioner on three years informal
probation. LG. Ex. 4, at 2-3. On August 17, 2011, Petitioner’s motion to withdraw his
guilty plea was granted based upon his compliance with his terms of probation, and his
case was dismissed. IG. Ex. 8.

The LG. cites section 1128(a)(1) of the Act as the basis for Petitioner’s mandatory
exclusion. I.G. Ex. 1. The statute provides:

(a) MANDATORY EXCLUSION. The Secretary shall
exclude the following individuals and entities from
participation in any Federal health care program (as defined
in section 1128B(f)):
(1) Conviction of program-related crimes. Any
individual or entity that has been convicted of a
criminal offense related to the delivery of an item or
service under title XVIII or under any State health care
program.

The statute requires that the Secretary exclude from participation in Medicare or
Medicaid any individual or entity: (1) convicted of a criminal offense, whether a felony
or a misdemeanor; (2) where the offense is related to the delivery of an item or service;
and (3) the delivery of the item or service was under Medicare or a state health care
program.

I conclude that Petitioner was convicted of a criminal offense within the meaning of
section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)). Pursuant to section 1128(i) of the
Act, an individual is “convicted” of a criminal offense when: (1) a judgment of
conviction has been entered by a federal, state, or local court whether or not an appeal is
pending or the record has been expunged; (2) there has been a finding of guilt ina
federal, state, or local court; (3) a plea of guilty or no contest has been accepted in a
federal, state, or local court; or (4) an accused individual enters a first offender program,
deferred adjudication program, or other arrangement where a judgment of conviction has
been withheld. Petitioner argued in his request for hearing that his motion to withdraw
his guilty plea was granted, a plea of not guilty was entered on the record by the state
court, and his state prosecution was dismissed. Petitioner reasons that he was not
convicted and that he should, therefore, not be excluded. Petitioner’s argument is without
merit. The evidence shows that Petitioner entered a guilty plea that was accepted by the
state court. P. Ex. 4, at 2-3. Therefore, Petitioner was convicted within the meaning of
section 1128(i) of the Act, when his guilty plea was accepted. Petitioner was also
“convicted” within the meaning of section 1128(i)(4) of the Act even though judgment
was withheld pending completion of the terms of probation, and even though the charges
were eventually dismissed after he successfully completed part of the term of informal
probation. Congress is clear in section 1128(i) of the Act that one is “convicted” even if
the record is subsequently expunged, or judgment is withheld as part of a first offender
program, deferred adjudication program, or a similar program.

I also conclude that Petitioner’s conviction was program-related within the meaning of
section 1128(a)(1) of the Act. The crime to which Petitioner pled guilty — “Presenting
False Medi-Cal Claims” — is clearly an offense related to the delivery of an item or
service under the California Medicaid program. Thus, there is a “nexus or common-
sense connection” between Petitioner’s criminal conduct and the delivery of an item or
service under the California Medicaid program. Timothy Wayne Hensley, DAB No. 2044
(2006); Lyle Kai, R.Ph., DAB No. 1979 (2005); Neil Hirsch, M.D., DAB No. 1550
(1995); Berton Siegel, D.O. DAB No. 1467 (1994). Accordingly, I conclude that the
elements necessary for exclusion pursuant to section 1128(a) of the Act are satisfied.
There is a basis for Petitioner’s exclusion, and his exclusion is mandated by section
1128(a)(1) of the Act.

Petitioner argues that permissive exclusion under section 1128(b)(1)(A) of the Act should
be applied in his case rather than mandatory exclusion pursuant to section 1128(a)(1) of
the Act. Petitioner points out that a permissive exclusion under section 1128(b) carries a
three year period of exclusion rather than the five years required for exclusion under
section 1128(a). P. Br. at 4-5. Contrary to Petitioner’s assertion, the I.G. has no
discretion to elect to impose a permissive exclusion under section 1128(b) of the Act
when the elements for a mandatory exclusion under section 1128(a) of the Act are
satisfied, as they are in this case. Stacy Ann Battle, DDS, DAB No. 1843 (2002); Lorna
Fay Gardner, DAB No. 1733, at 5 (2000).

4. Pursuant to section 1128(c)(3)(B) of the Act, five years is the
minimum period of exclusion pursuant to section 1128(a) of the Act.

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

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section
1128(a) of the Act shall be for a minimum period of five years. Pursuant to

42 C.F.R. § 1001.102(b), the period of exclusion may be extended based on the presence
of specified aggravating factors. Only if the aggravating factors justify an exclusion of
longer than five years are mitigating factors considered as a basis for reducing the period
of exclusion to no less than five years. 42 C.F.R. § 1001.102(c). The I.G. does not cite
any aggravating factors in this case and does not propose to exclude Petitioner for more
than the minimum period of five years.

I have concluded that Petitioner’s exclusion is required by section 1128(a)(1) of the Act.
Accordingly, the minimum period of exclusion is five years, and that period is not
unreasonable as a matter of law.

II. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare,
Medicaid, and all federal health care programs for the minimum statutory period of five
years effective August 18, 2011.

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Kids Med (Delta Medical Branch)
(CLIA No. 45D0925763),
Petitioner
v.
Centers for Medicare and Medicaid Services.

Docket No. C-11-749
Decision No. CR2492

Date: January 24, 2012

DECISION

This matter is before me on CMS’s Motion to Dismiss filed on September 14, 2011. For
the reasons set out in the discussion below, I GRANT the CMS Motion. But the
procedural history of this case is unusual and somewhat complex; moreover, this appeal
is related to other litigation now before me. Thus, a review of the events in this case and
a brief discussion of events in that other litigation will be helpful in explaining how I
have applied certain principles well-established in this forum to the merits of the CMS
Motion.

I, PROCEDURAL HISTORY

Petitioner Kids Med (Delta Medical Branch) (KMDMB) is a clinical medical laboratory
located in Elsa, Texas, a small community in the lower Rio Grande Valley approximately
halfway between McAllen and Harlingen. Until the events that form the basis of this
appeal, KMDMB participated in the Medicare and Texas Medicaid programs and held a
CLIA certificate under the provisions of the Clinical Laboratory Improvement
Amendments of 1988, 42 U.S.C. § 263a et seg. KMDMB is owned by W. A. Aviles,
M.D. Dr. Aviles at that time owned at least three other CLIA-certified facilities in that
general area: Mid Valley Pediatrics (MVP), Donna Medical Clinic (DMC), and
Mercedes Childrens Clinic (MCC).

On September 22, 2010, surveyors from the Texas Department of State Health Services
(TDSHS) conducted a compliance survey of KMDMB and found it out of substantial
compliance with several conditions of participation in the CLIA program. TDSHS
informed CMS of its findings and CMS adopted them. On March 9, 2011, CMS wrote to
KMDMB and notified it of those findings and of the sanctions CMS would impose as a
result. CMS told KMDMB that the laboratory's CLIA certificate would be suspended
effective March 14, 2011, and that its approval to receive payments under Medicare and
the Texas Medicaid program would be cancelled as of that date. The CMS notice
contained a separate section, set off by a heading captioned “Appeals Process,” with a
clear and detailed explanation of KMDMB’s appeal rights, including a citation to 42
C.F.R. § 493.1844, the regulation governing an appeal, an explicit mention of the 60-day
deadline for perfecting an appeal, a statement of the content requirements for a
satisfactory request for hearing on appeal, and the addresses to which a request for
hearing must be sent.

The CMS notice of March 9, 2011 contained additional warnings to KMDMB that are of
significance to this appeal. The CMS notice cautioned KMDMB that its CLIA certificate
— merely suspended as of March 14, 2011 — would be revoked completely on May 10,
2011 unless KMDMB had filed a request for hearing to contest the CMS action by May
9, 2011. Because CMS sent its March 9 notice to KMDMB by facsimile transmission on
March 9, 2011, and because KMDMB received the facsimile transmission on the date it
was sent, CMS apparently calculated the 60-day appeal deadline established by 42 C.F.R.
§ 498.40(a)(2) to end on May 9, 2011.

The CMS notice contained yet another significant warning to KMDMB and Dr. Aviles.
Although it did not mention MVP, DMC, or MCC by name, the CMS notice explicitly
cautioned that certain statutory and regulatory provisions — 42 U.S.C. § 263(a)(i)(3) and
42 C.F.R. § 493.1840(a)(8) — prohibit the owner of a laboratory with a revoked CLIA
certificate from owning, operating, or directing another CLIA laboratory for a period of
two years.

KMDMB's immediate response to the CMS notice was not the filing of a request for
hearing. Instead, Dr. Aviles wrote to CMS on March 14, 2011 on MVP letterhead and
acknowledged the CMS notice, expressed that “‘we understand its terms and are prepared
to fully comply with the decisions set forth,” offered an explanation of the lapses and
“serious mistakes” at KMDMB, and ended with the “request that you reconsider, and at
least allow us to continue performing our simple CLIA-waived tests. Please advise.”
CMS responded to Dr. Aviles and KMDMB in a letter dated and sent by facsimile
transmission on April 19, 2011. That letter told Dr. Aviles and KMDMB that “CMS
cannot allow your laboratory to perform waived testing.” The letter enjoined: “You
must cease ALL patient testing.”’ The CMS letter repeated the warning about the
impending revocation of KMDMB’s CLIA certificate on May 10, 2011 if an appeal were
not filed by May 9, 2011, and explicitly reminded KMDMB and Dr. Aviles that a
statement of KMDMB’s appeal rights could be found in the CMS notice of March 9.

May 2011 came and went without further action on the part of Dr. Aviles or KMDMB.
In the absence of any such action toward perfecting an appeal, the CMS determination
took full effect and KMDMB’s CLIA certificate was revoked on May 10, 2011. But as
CMS had warned in its March 9 notice, other consequences immediately followed the
KMDMB revocation.

CMS had warned Dr. Aviles that the owner of a laboratory with a revoked CLIA
certificate is prohibited from owning, operating, or directing another CLIA laboratory for
a period of two years. As I have noted above, Dr. Aviles was at the time the owner of
MVP, DMC, and MCC. On May 19, 2011, CMS sent separate notices to MVP, DMC,
and MCC that the three laboratories’ CLIA certificates would be revoked effective July
20, 2011 if a request for hearing were not received by July 19, 2011. CMS explained that
its determination was based on the revocation of KMDMB’s CLIA certificate on May 10,
2011. The CMS notices repeated in essentially-identical language the explanation of
appeal rights and procedures that had been given to KMDMB on March 9.

MVP, DMC, and MCC filed substantially-identical requests for hearing on July 18, 2011.
MVP’s appeal was docketed as C-11-617; DMC’s was docketed as C-11-618, and
MCC’s was docketed as C-11-619. Each filing was confirmed by my standard
Acknowledgment and Initial Docketing Order on July 20, 2011. Each of the three
laboratories admitted in its request that the revocation of its CLIA certificate derived
from the revocation of KMDMB’s and sought to defend its own certificate by
challenging CMS’s revocation of KMDMB’s certificate on the merits, although that
challenge went to only one of several instances of noncompliance with which KMDMB
had been cited. None of the three requests for hearing asserted or appeared to assume
that KMDMB had ever perfected an appeal on its own, and as of July 18, 2011, that was
the case: KMDMB had neither sought nor attempted to seek relief in this forum from the
CMS determination of March 9, 2011.

CMS answered the MVP, DMC, and MCC appeals on August 16, 2011 with identical
filings in C-11-617, C-11-618, and C-11-619. CMS filed a Motion for Summary

' Here, as elsewhere in the following pages, I have replicated the original text’s use of
emphasis, underlining, or bold type when quoting from material in this record, or from
pleadings in C-11-617, C-11-618, or C-11-619.
Judgment in each case, noting, inter alia, that once the revocation of KMDMB's CLIA
certificate became final, the revocation of MVP’s, DMC’s, and MCC’s CLIA certificates
was mandated as a matter of law. 42 U.S.C. § 263a(i)(3); 42 C.F.R. § 493.1840(a)(8);
see Sol Teitelbaum, M.D., DAB No. 1849 (2002). Each of the CMS Motions discussed
the finality of the KMDMB revocation in this language: “Wilfredo A. Aviles failed to
file a request for a hearing in that enforcement action. As a result, CMS’ determinations
and imposed sanctions [with reference to KMDMB] are administratively final and cannot
be appealed or challenged.”

Although not a party to C-11-617, C-11-618, or C-11-619, KMDMB responded to the
CMS Motions for Summary Judgment in two ways. First, on August 31, 2011, KMDMB
sent this forum what purported to be a request for hearing challenging the CMS
determination of March 9, 2011. The purported request was signed by counsel associated
with the law firm that appeared for MVP, DMC, and MCC in their appeals. Interestingly,
KMDMB’s letter asserts among other things that “A Timely and Complete Request for
Hearing was filed March 9, 2011.” What KMDMB meant by that statement is not clear,
but what it did assert in the remainder of its letter is that Dr. Aviles’ March 14 letter to
CMS was, in fact, a request for hearing compliant with 42 C.F.R. § 498.40. In the
alternative, however, KMDMB argued that good cause exists for extending the time for
filing so as to allow its August 31 letter to serve as a timely request. The KMDMB letter
made no attempt to meet the content requirements of 42 C.F.R. § 498.40(b). This request
for hearing was docketed as C-11-749, and it is this request for hearing that forms the
basis of this litigation.

Once KMDMB had sent its August 31 letter in C-11-749, the second part of its response
to the CMS Motions for Summary Judgment in C-11-617, C-11-618, and C-11-619 was
given effect. In each of those cases, the appealing laboratory resisted CMS’s Motion by
filing on September 1, 2011 its Response to the CMS Motion for Summary Judgment
arguing that because KMDMB had filed its March 14 letter and its August 31 letter, the
revocation of KMDMB's CLIA certificate was not administratively final. A week later,
on September 9, 2011, each laboratory filed its own Motion for Summary Judgment
advancing essentially the same argument.

Now, it may serve the interests of clarity to pause here briefly to explain, and then set
aside, developments in the separate appeals of MVP, C-11-617; DMC, C-11-618; and
MCC, C-11-619. The parties have debated the issues I have outlined above at some
length in those cases, and have done so in terms identical among the three appeals. But
by October 2011 it had become apparent to all concerned that those three appeals
addressed common, identical issues of fact and law, and that all three depended on the
outcome of this case for their final resolution. Accordingly, by my Order of October 18,
2011 I consolidated the three cases as C-11-619, dismissed C-11-617 and C-11-618, and
stayed C-11-619 pending the disposition of this case. That disposition is, of course, the
subject of this Decision.
The procedural history of this case nears completion. On September 14, 2011, CMS filed
its Motion to Dismiss KMDMB’s hearing request in this case; in its Motion, CMS argued
that Dr. Aviles’ letter of March 14 did not constitute a request for hearing, and that
KMDMB had not shown good cause for extending the deadline for KMDMB to file such
a request. KMDMB filed two pleadings on October 3, 2011: a Motion to Request Leave
to Amend Hearing Request, and a Response to CMS’s Motion to Dismiss. The Motion to
Request Leave to Amend Hearing Request sought permission to amend Dr. Aviles’
March 14, 2011 letter in order that it might comply with 42 C.F.R. § 498.40(b) in order to
“avoid complete depravation” of KMDMB’s hearing rights, but did not set out the
particulars by which it would accomplish compliance with the content requirements of
that regulation. The Response maintained KMDMB’s assertions that Dr. Aviles’ letter
was a valid and sufficient request, but went on to urge in the alternative that it should be
permitted to amend that letter. Implicit in KMDMB’s position is the notion that it has
shown good cause for whatever extension of time it may need to accomplish full
compliance with 42 C.F.R. § 498.40(a) and (b). The final pleading was CMS’s October
18, 2011 Reply to Petitioner's Response to Respondent's Motion to Dismiss.

IL. DISCUSSION

The procedural history set out above may border on the baroque, but at its heart lies one
rather straightforward question: was Dr. Aviles’ letter of March 14, 2011 a request for
hearing compliant with the terms of 42 C.F.R. § 498.40? Depending on the answer to
that question, then another question presents itself: if Dr. Aviles did not perfect
KMDMB’s appeal with his March 14 letter, then does good cause exist in this record to
allow KMDMB either to amend the letter and bring it into compliance with 42 C.F.R.

§ 498.40 or to extend the deadline for filing KMDMB’s request for hearing so that its
August 31, 2011 filing can be considered timely?

A. Was Dr. Aviles' letter of March 14, 2011 a request for hearing compliant with
the terms of 42 C.F.R. § 498.40?

This record demonstrates quite clearly that Dr. Aviles’ letter of March 14, 2011 was not
intended by its author as a request for hearing. Even with the specific content
requirements of 42 C.F.R. § 498.40(b)(1) and (2) put momentarily aside, and even
disregarding the requirement at 42 C.F.R. § 498.40(a)(1) that a valid request for hearing
must be filed in the correct forum by mailing it to the correct address, Dr. Aviles’ letter
cannot be reasonably understood to be the expression of “a laboratory dissatisfied with
the suspension, limitation, or revocation of its CLIA certificate” and seeking appellate
review of such action. See 42 C.F.R. § 493.1844(f). It can be reasonably understood
only thus: as the expression of Dr. Aviles’ and KMDMB’s acceptance of the TDSHS
findings, as an apologia for the several lapses in KMDMB’s compliance, as an
acknowledgment that the proposed sanction would be imposed, and as a plea that some of

its testing procedures — and of Texas Medicaid’s payment for them — might be
excepted from the scope of the sanction.

This is not a situation in which the teachings of The Carlton at the Lake, DAB No. 1829
(2002) and Alden Nursing Center-Morrow, DAB No. 1825 (2002) can be invoked or
relied upon. Those cases depended for their whole logical integument on the obvious
notion that those cited facilities disagreed with the factual and legal bases of their
citations and were trying to appeal and reverse the CMS determinations based on those
citations. Here, there is no danger that in reading Dr. Aviles’ letter I might “lightly
conclude that a petitioner has failed in its effort to take advantage of its opportunity for a
hearing.” The Carlton at the Lake, DAB No. 1829, at 8. It requires no hyper-technical
comparison of his letter with the regulations to find and conclude, as I do here, that Dr.
Aviles expressed no wish or intention to take advantage of his opportunity for a hearing.
Line by line, Dr. Aviles’ letter accepts, rather than contests, the results of the TDSHS
survey and the CMS determination.

The letter begins by stating “[i]n regards to your imposition of sanction on the above
medical facility [KMDMB], we understand its terms and are prepared to fully comply
with the decisions set forth.” After a sentence requesting CMS to “reconsider allowing
us to at least provide our patients with continued care by performing only our CLIA-
waived tests,” the letter expresses regret and an apology, and then offers this statement:
“We did have a change of employees around the time of our survey and we acknowledge
the fact that serious mistakes were made.” The letter goes on to recount KMDMB’s long
history of CLIA certification and asserts that it has “never encountered a deficiency /
sanction as serious at this. [MVP] and [KMDMB] have always been in compliance with
CLIA regulations.” The letter ends with the repeated request that CMS reconsider
allowing KMDMB to “continue performing our simple CLIA-waived tests.”

KMDMB has labored mightily to cast this letter as an inartfully-drafted document written
by a non-attorney, and urges that it should be understood as “contending that CMS’
determination was incorrect” and as seeking “ideally that the imposition of sanctions be
declared improper.” Neither those words nor any like them can be found in Dr. Aviles’
letter, and to suggest that Dr. Aviles meant such things by the words he wrote is
recklessly to distort both the plain meaning of his letter and the broader sense it conveys:
acceptance of the TDSHS findings and the CMS determination, and the acknowledgment
that “serious mistakes were made” and that “we . . . are prepared to fully comply with the
decisions set forth.” And although Dr. Aviles may not have been trained in legal matters,
he could rely on over two decades of experience in dealing with CMS, TDSHS, and
CLIA requirements: his letter points out that “[w]e have been enrolled with the CLIA
program since its beginning in 1988, and have never encountered a deficiency/ sanction
as serious as this.” His twenty-plus years of dealing with CLIA regulations and
compliance surveys means, at the very least, that he was hardly a naif overwhelmed by
impending government action: providers such as Dr. Aviles and KMDMB are charged
with knowledge of the regulations governing program participation, and are assumed to
understand both the importance of the notice of appeal rights set out in the CMS notice
and of the necessity for careful, timely compliance with it in filing a hearing request.
Cary Health and Rehabilitation Center, DAB No. 1771, at 20 n.7 (2001); Brookside
Rehabilitation and Care Center, DAB CR1541 (2006), aff'd, Brookside Rehabilitation
and Care Center, DAB No. 2094 (2007).

Thus, in summarizing this record and the light it sheds on Dr. Aviles’ letter of March 14,
2011, the evidence shows this: Dr. Aviles and KMDMB were long-time participants in
the CLIA program; the CMS letter of March 9, 2011 was clear and unequivocal in
advising Dr. Aviles and KMDMB of both their appeal rights and the procedures they
must follow to perfect an appeal; the CMS letter also warned Dr. Aviles and KMDMB of
the serious consequences to which MVP, DMC, and MCC were exposed if the KMDMB
sanction became final; in writing his letter of March 14, Dr. Aviles had the benefit of
extensive experience in dealing with CMS, TDSHS, and the mechanisms of CLIA
compliance enforcement; and no reasonable reading of Dr. Aviles’ March 14 letter
suggests his or KMDMB’s intention to appeal the CMS determination of March 9, 2011.

Dr. Aviles’ letter of March 14, 2011 was not a request for hearing compliant with the
terms of 42 C.F.R. § 498.40. See Apple Home Health Services, DAB No. 2188 (2008).

B. Does good cause exist in this record to allow KMDMB to amend Dr. Aviles’
March 14, 2011 letter and bring it into compliance with 42 C.F.R. § 498.40, or to

extend the deadline for filing KMDMB’s request for hearing so that its August 31,
2011 filing can be considered timely?

In cases where a request for hearing has not been timely filed, the affected party or an
entity acting on its behalf may seek an extension of the usual 60-day deadline. 42 C.F.R.
§ 498.40(c)(1). KMDMB did so, in effect, with the two pleadings it filed on October 3,
2011, although neither pleading makes specific reference to that precise regulation or
explains what KMDMB believes to be the “good cause” standard it must meet before I
should exercise my discretion to grant the extension pursuant to 42 C.F.R. § 498.40(c)(2).

The definition of “good cause” in this forum is considerably broader than it may once
have appeared. It is no longer limited to a showing of circumstances beyond the ability
of a party to control, as in Hospicio San Martin, DAB No. 1554 (1996). But whatever it
may be in the abstract, the specific facts relied on to establish “good cause” in a particular
case must fit within a “reasonable definition of that term.” Brookside Rehabilitation and
Care Center, DAB No. 2094, at 7, n.7. It is impossible to view the facts in this case as
fitting within any reasonable definition of “good cause,” for the circumstances of this
case between March 2011 and August 31, 2011 point to little other than deliberate
inaction, a course followed as a tactical choice, by KMDMB.

The exchange of letters between CMS and Dr. Aviles in March 2011 led to CMS’s letter
to Dr. Aviles on April 19, 2011. The principal message of that letter was to make Dr.
Aviles aware beyond the possibility of misunderstanding that KMDMB would not be
permitted to conduct “CLIA-waived” testing. Its language could not have been clearer:
“You must cease ALL patient testing.” If Dr. Aviles had harbored any remaining notions
that his March 14 letter had left CMS’s determination or any part of its proposed
sanctions in suspense or abeyance, the April 19 letter put an end to them. The CMS letter
included language that read: “This is to inform you, CMS has imposed the following
sanctions effective March 14, 2011... .” The letter reminded Dr. Aviles and KMDMB
of the approaching revocation on May 10, 2011. It reminded Dr. Aviles and KMDMB
that the deadline for an appeal was approaching: “Ifa request for hearing is not received
by May 9, 2011 ....” And the CMS letter also left no room for doubt about what Dr.
Aviles and KMDMB must do if they wished to challenge the CMS action. The April 19
CMS letter noted: “Please refer to our March 9, 2011 letter for your appeal rights” and
the next paragraph provided a telephone number and email address to which Dr. Aviles
could address any questions about the administrative aspects of the action.

[he CMS letter of April 19 was sent by facsimile transmission and was received by Dr.
Aviles and KMDMB the same day. Thus, Dr. Aviles and KMDMB still had 20 days left
of the 60-day appeal period within which to perfect an appeal, and had during the first 40
lays twice received explicit warnings and advice. The warnings of consequences to
KMDMB, and to MVP, DMC, and MCC were clear and unambiguous, and they were
ignored twice. The advice concerning the availability of an appeal and the method to be
followed in perfecting one was simple and straightforward, and it was ignored twice.

It is not at all clear how KMDMB could have been ignorant of the suspension of its CLIA
certificate after March 14, 2011, since its payments for services under the Texas
Medicaid program ceased then and it still had almost seven weeks of its appeal period
left. But if that much is unclear, then it is even more difficult to understand how
KMDMB could have been unaware that its CLIA certificate had been revoked on May 10
once MVP, DCM, and MCC received the CMS notices of May 19, 2011. Yet KMDMB
took no action to resuscitate its appeal rights then. If it had, it could have cast itself as the
faultless victim of human error, trying earnestly to correct the error at the very first
opportunity, a mere 10 days late. Instead, and for reasons of its own, it made the tactical
choice to do nothing until the last days of the appeal period for MVP, DCM, and MCC,
and then to do so obliquely. The July 18, 2011 requests filed by those three laboratories
acknowledged that KMDMB’s CLIA certificate had been revoked but argued that the
revocation was unwarranted. The July 18 requests for hearing were filed nine weeks
after the expiration of KMDMB’s appeal deadline.

There is absolutely no reference in any of the three July18 requests for hearing that would
explain or justify the absence of a perfected appeal by KMDMB, but once the filings had
been acknowledged in the normal course of this forum’s official business by my Orders

of July 20, 2011, yet another warning flag would have been obvious to KMDMB, MVP,
DMC, and MCC: if KMDMB had perfected an appeal, where was the Acknowledgment
and Initial Docketing Order so indicating?

If KMDMB was troubled by the absence of such an Order, it spent the next four weeks
doing nothing to address the trouble. During that time it enjoyed again a chance to revive
its appeal, but declined to do so. By August 16, 2011, KMDMB!'s right to appeal had
been forfeit for 14 weeks. And on August 16, 2011 CMS filed its Motions for Summary
Judgment in the MVP, DCM, and MCC appeals, relying on the finality — in the absence
of an appeal — of the revocation of KMDMB’s CLIA certificate.

If some reasonable definition of good cause might excuse KMDMB’s failure to file a
request for hearing through August 16, no “reasonable definition of that term” could
excuse KMDMB’s inaction beyond that date. But in spite of the array of warnings and
cautions that had been obvious to KMDMB since March 9, and in the face of the explicit
assertions in the CMS Motions of August 16 that no appeal had been filed, KMDMB did
nothing until August 31, 2011. Then, 25 weeks after the CMS notice of March 9, and 16
weeks after its appeal period had expired, KMDMB filed its request for hearing.

No reasonable definition of the term “good cause” as it is employed by 42 C.F.R.

§ 498.40(c)(2) can compass KMDMB!'s inaction. There is no possibility that it was
confused or misled by CMS at any point or on any issue. There is no realistic possibility
that KMDMB was unaware that the action against its CLIA certificate had proceeded
finally to revocation. By May 19, 2011 Dr. Aviles and KMDMB were on notice not only
that the KMDMB certificate had been revoked because no appeal had been filed, but
were also on notice that the collateral results of that revocation were moving forward in
the absence of KMDMB's appeal. By July 20, 2011 the absence of acknowledgment and
docketing papers in a supposed appeal by KMDMB gave further warning that no appeal
was pending. The failure of KMDMB to perfect an appeal was made an explicit part of
CMS’s August 16 Motions in the MVP, DMC, and MCC appeals. This inaction by
KMDMB over an extended period cannot be understood as lapses or mistakes. It can be
understood only as the result of tactical choices, beginning with Dr. Aviles’ letter of
March 14, 2011.

This record does not support speculation as to what may have driven those tactical
choices. It is clear, however, that all four of Dr. Aviles’ Medicare- and Medicaid-
participating laboratories are situated quite close to one another, with MVP, DMC, and
MCC all within 10 miles of KMDMB and less than that from one another. It is at least
conceivable that MVP, DMC, and MCC were able briefly to take over the testing that
KMDMB was no longer allowed — and being paid by Medicare and Texas Medicaid —
to do. Although there may be many other legitimate explanations, that scenario would
explain why KMDMB did nothing until MVP’s, DMC’s, and MCC’s CLIA certificates
and Texas Medicaid approvals were revoked. But this record shows only geography and
10

a chronological sequence, and will carry speculation no further. What this record does
not show is good cause, under “any reasonable definition of that term,” to allow
KMDMB to amend the letter and bring it into compliance with 42 C.F.R. § 498.40, or to
extend the deadline for filing KMDMB’s request for hearing so that its August 31, 2011
filing can be considered timely. Accordingly, I decline to do so and DENY KMDMB's
October 3, 2011 Motion to Request Leave to Amend Hearing Request.

II. CONCLUSION

For all of the reason set out above, I find and conclude that: (1) Dr. Aviles’ letter of
March 14, 2011 was not a request for hearing as that term is contemplated by 42 C.F.R.
§ 493.1844(f) and 42 C.F.R. § 498.40; (2) KMDMB has not shown good cause to be
permitted to amend Dr. Aviles’ letter; (3) KMDMB has not shown good cause for the
extension of the deadline for filing a request for hearing; and (4) KMDMB’s August 31,
2011 request for hearing is untimely and must be dismissed pursuant to 42 C.F.R.

§ 498.70(c).

Accordingly, KMDMB’s Motion to Request Leave to Amend Hearing Request is
DENIED. The CMS Motion to Dismiss filed September 14, 2011 must be, and it is,
GRANTED. On the authority of 42 C.F.R. § 498.70(c), KMDMB’s August 31, 2011
request for hearing, and this appeal, are DISMISSED.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Christine Dusenberry
(O.I File No. 7-10-40432-9),

Petitioner
v.

The Inspector General,
Department of Health and Human Services.

Docket No. C-11-645
Decision No. CR2491
Date: January 17, 2012

DECISION

Petitioner, Christine Dusenberry, is excluded from participation in Medicare, Medicaid,
and all federal health care programs pursuant to section 1128(a)(2) of the Social Security
Act (Act) (42 U.S.C. § 1320a-7(a)(2)), effective June 20, 2011. There is a proper basis
for exclusion. Petitioner’s exclusion for the minimum period! of five years is mandatory
pursuant to section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).

I. Background

The Inspector General (I.G.) notified Petitioner by letter dated May 31, 2011, that she
was being excluded from participation in Medicare, Medicaid, and all federal health care
programs for the minimum statutory period of five years pursuant to section 1128(a)(2)
of the Act. The basis cited for Petitioner’s exclusion was her conviction in the District

' Pursuant to 42 C.F.R. § 1001.3001, Petitioner may apply for reinstatement only after
the period of exclusion expires. Reinstatement is not automatic upon completion of the
period of exclusion.
Court for Lee County, in Keokuk, Iowa, of a criminal offense related to neglect or abuse
of a patient in connection with the delivery of a health care item or service. Act §
1128(a)(2); 42 C.F.R. § 1001.101(a). Petitioner timely requested a hearing on July 29,
2011. The case was assigned to me for hearing and decision on August 1, 2011. On
August 16, 2011, I convened a prehearing conference by telephone, the substance of
which is memorialized in my Order dated August 17, 2011. During the prehearing
conference, Petitioner did not waive an oral hearing, and the I.G. requested to file a
motion for summary judgment for which I set a briefing schedule.

The LG. filed its motion for summary judgment and supporting brief (I.G. Br.) on
September 15, 2011, with I.G. exhibits (I.G. Exs.) 1 through 3. Petitioner filed a brief in
opposition to the I1.G. motion (P. Br.) on October 17, 2011, with Petitioner’s exhibits (P.
Exs.) 1 through 6. The LG. filed its reply brief (I.G. Reply) on November 1, 2011. On
November 15, 2011, Petitioner requested leave to file a sur-reply with the sur-reply
attached (P. Reply). Petitioner’s motion for leave to file is granted, and her sur-reply is
accepted. No objections have been made to my consideration any of the exhibits, and
1.G. Exs. 1 through 3 and P. Exs. 1 through 6 are admitted.

IL. Discussion
A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner’s right to a
earing by an administrative law judge (ALJ) and judicial review of the final action of
the Secretary of Health and Human Services.

Pursuant to section 1128(a)(2) of the Act, the Secretary must exclude from participation
in any federal health care program any individual or entity convicted of a criminal
offense under federal or state law, related to neglect or abuse of patients in connection
with the delivery of a health care item or service. The statute does not distinguish
between felony convictions and misdemeanor convictions and does not require that the
ealth care item or service be delivered under Medicare, Medicaid, or a federal or state
ealthcare program. The Act defines “conviction” to include those circumstances:
“when a judgment of conviction has been entered against the individual or entity by a
Federal, State, or local court, regardless of whether there is an appeal pending or whether
the judgment of conviction or other record relating to criminal conduct has been
expunged” or “when there has been a finding of guilt against the individual or entity by a
Federal, State, or local court” or when a plea of guilty or no contest is accepted by a
court; or when an individual enters “a first offender, deferred adjudication, or other
arrangement or program where a judgment of conviction has been withheld.” Act §
1128(i)(1), (2).

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section
28(a) of the Act shall be for a minimum period of five years. The exclusion is
effective 20 days from the date of the notice of exclusion. 42 C.F.R. § 1001.2002(b).

The standard of proof is a preponderance of the evidence, and there may be no collateral
attack of the conviction that is the basis of the exclusion. 42 C.F.R. § 1001.2007(c) and
). Petitioner bears the burden of proof and persuasion on any affirmative defenses, and
the I.G. bears the burden on all other issues. 42 C.F.R. § 1005.15(c).

B. Issue

The Secretary has by regulation limited my scope of review to two issues:
Whether there is a basis for the imposition of the exclusion; and
Whether the length of the exclusion is unreasonable.

42 CFR. § 1001.2007(a)(1).

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

My conclusions of law are set forth in bold followed by the pertinent findings of fact and
analysis.

1. Petitioner’s request for hearing was timely and I have jurisdiction.
2. Summary judgment is appropriate in this case.
There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has a right to
reasonable notice and an opportunity for a hearing. The right to hearing before an ALJ is
accorded to a sanctioned party by 42 C.F.R. §§ 1001.2007(a) and 1005.2, and the rights
of both the sanctioned party and the LG. to participate in a hearing are specified by

42 C.F.R. § 1005.3. Either or both parties may choose to waive appearance at an oral
hearing and to submit only documentary evidence and written argument for my
consideration. 42 C.F.R. § 1005.6(b)(5). An ALJ may also resolve a case, in whole or in
part, by summary judgment. 42 C.F.R. § 1005.4(b)(12). Summary judgment is
appropriate, and no hearing is required where either: there are no disputed issues of
material fact, and the only questions that must be decided involve application of law to
the undisputed facts; or the moving party prevails as a matter of law, even if all disputed
facts are resolved in favor of the party against whom the motion is made. A party
opposing summary judgment must allege facts that, if true, would refute the facts that the

moving party relied upon. See, e.g., Fed. R. Civ. P. 56(c); Garden City Med. Clinic,
DAB No. 1763 (2001); Everett Rehab. and Med. Ctr., DAB No. 1628, at 3 (1997)
(finding in-person hearing required where non-movant shows there are material facts in
dispute that require testimony); Thelma Walley, DAB No. 1367 (1992); see also New Life
Plus Ctr., DAB CR700 (2000); New Millennium CMHC, DAB CR672 (2000).

There is no dispute that Petitioner was convicted of the criminal offense of disorderly
conduct under Iowa Code section 723.4. The issue that must be resolved is whether
Petitioner’s offense and the underlying facts amount to abuse or neglect under an
applicable legal definition of abuse or neglect. The facts underlying the conviction are
not subject to dispute before me. Thus, there is no genuine dispute as to any material
issue of fact. All that remains to be determined is the issue of law of whether or not the
undisputed facts meet the applicable definition of abuse and neglect. Accordingly,
summary judgment is appropriate.

3. There is a basis for Petitioner’s exclusion pursuant to section
1128(a)(2) of the Act.

Exclusion from participation in Medicare, Medicaid, and all federal health care programs
is required by section 1128(a)(2) of the Act when: (1) the individual was convicted of a
criminal offense under federal or state law; (2) the conviction was related to the neglect
or abuse of patients; and (3) the patient neglect or abuse occurred in connection with the
delivery of a health care item or service.

a. Petitioner was convicted of a criminal offense within the
meaning of section 1128(a)(2) of the Act.

There is no dispute that on August 4, 2010, Petitioner was convicted, contrary to her plea,
in the Iowa District Court for Lee County in Keokuk, Iowa of disorderly conduct in
violation of lowa Code § 723.4. Petitioner requested a bench trial. The complaint and
affidavit by which Petitioner was charged were introduced by the prosecution. Petitioner
presented no evidence. The court found Petitioner guilty of the crime of disorderly
conduct; ordered a deferred judgment; placed Petitioner on unsupervised good conduct
probation for one year; and ordered Petitioner to pay a civil penalty of $135.00 and court
costs. I.G. Ex 2; P. Exs. 1, 2, 3.

Petitioner does not dispute that she was convicted of a criminal offense under state or
federal law within the meaning of section 1128(a)(2) of the Act. P. Br. at 3. The term
“conviction” as defined in the Act includes the entry of a finding of guilty, as there was in
this case, as well as deferred adjudications and similar programs where a judgment of
conviction is withheld by the court. Act § 1128(i)(4). Accordingly, I concluded that
Petitioner was convicted of a criminal offense within the meaning of section 1128(a)(2)
of the Act.
b. Petitioner’s conviction was related to abuse of a nursing
home resident in connection with the delivery of a health care
item or service within the meaning of section 1128(a)(2) of the
Act.

Petitioner admits that when the incident for which she was convicted occurred on May
26, 2008, she had been instructed in her capacity as a restorative aide at Montrose Health
Center, to assist the resident. P. Ex. 5, at 2. Thus, there is no genuine dispute that
Petitioner’s conviction related to the delivery of a health care item or service to a patient
under her care. Petitioner asserts, however, that the LG. has failed to prove that
Petitioner’s conviction was related to the abuse of a patient, in this case a resident of a
nursing home. P. Br. at 7. Petitioner argues that the Iowa court did not find that
Petitioner abused the nursing home resident involved. P. Br. at 3. Indeed, the evidence
before me does not show that the court that convicted Petitioner of disorderly conduct
made any specific legal conclusions about whether or not Petitioner abused the nursing
ome resident. I.G. Ex 2; P. Exs. 1, 2,3. However, the characterization of the offense by
the state is not controlling. Rather, the circumstances surrounding the offense need only
show a relation to neglect or abuse of a patient to fall within the ambit of section
1128(a)(2) of the Act. Narendra M. Patel, DAB No. 1736, at 8 (2000); Bruce Lindberg,
D.C., DAB No. 1280 (1991). Petitioner also argues that an Iowa ALJ found that
Petitioner’s conduct did not amount to abuse or neglect. P. Br. at 6, 12. Petitioner is
correct that the lowa ALJ concluded that Petitioner did not abuse the resident involved
under Iowa law. P. Ex. 4. Petitioner’s theory is that the LG. has failed to meet its burden
to show that the crime for which Petitioner was convicted was related to abuse of the
nursing home resident.

The controlling facts are found in the compliant and affidavit that Petitioner did not
dispute at trial and upon which Petitioner was convicted. The complaint and affidavit
state that from May 26 through 28, 2008, Petitioner, while a restorative aide at the
Montrose Health Center, repeatedly told a 93-year-old resident that she was “pathetic”
and that “wheelchairs are for cripples” after she lowered the resident to the floor. The
complaint also stated that: the resident was crying and sobbing; Petitioner was loud and
raucous; and Petitioner caused distress to the occupants of the Montrose Health Center.
1.G. Ex. 3. When the LG. proposes to exclude an individual based on a criminal
conviction by a federal, state, or local court in which the facts were adjudicated, the basis
for the conviction is not reviewable and not subject to collateral attack on substantive or
procedural grounds in this proceeding. 42 C.F.R. § 1001.2007(d). Therefore, Petitioner
is bound before me by the facts upon which she was adjudged guilty in the Iowa court.
There is also no dispute in this case that Montrose Health Center was a nursing home,
subject to the requirements for participation in Medicare as a skilled nursing facility
(SNF) or in Medicaid as a nursing facility (NF). P. Br. at 4, 7-9.

The real dispute before me is whether or not Petitioner’s conduct as found by the Iowa
criminal court is “abuse” within the meaning of an applicable definition of abuse. The
parties disagree as to where the applicable definition for “abuse” is found.

The I.G. concedes that the term “abuse” is not defined by section 1128(a)(2) of the Act.
1.G. Br. at 2. In fact, the Act provides no definition for the term abuse. There is also no
definition for the term abuse found in the Secretary’s regulations implementing the
Congressional mandate and the Secretary’s authority to exclude providers and suppliers
from participation in Medicare. 42 C.F.R. Part 1001. The I.G. advocates that the he is
free to apply the common definition of abuse citing numerous prior decisions by ALJs.
1.G. Br. at 2. Petitioner advocates for the definition of abuse and neglect found at 42
C.F.R. § 488.301 (P. Br. at 8-9) or in the state law (P. Br. at 11-12). Petitioner argues
that her conduct did not amount to abuse or neglect under any definition.

[he I.G.’s assertion that he may elect to apply the common meaning of abuse rather than
the definition adopted by the Secretary is in error. Congress tasked the Secretary, not the
1.G., with prescribing the regulations necessary to carry out the insurance programs under
the Act. Act § 1871(a)(1), (2) (42 U.S.C. § 1395hh(a)(1), (2)). Congress required that
nursing homes (skilled nursing facilities and nursing facilities) protect and promote a
residents right to be free from physical or mental abuse. Act §§ 1819(c)(1)(A)(ii),
1919(c)(1)(A)(ii) (42 U.S.C. §§ 1395i-3(c)(1)(A)(ii), 1396r(c)(1)(A)(ii)).. The Secretary
promulgated regulations as Congress required. The Secretary’s regulations establish
standards for participation by nursing homes in Medicare and Medicaid. It is also the
Secretary and not the I.G. that Congress tasked to exclude individuals pursuant to section
1128 of the Act. The Secretary promulgated regulations that set forth the standards and
procedures for the LG. to following in excluding providers and suppliers from
participation under the insurance programs that the Secretary was tasked to control. The
1.G. has only such authority to exclude individuals as is delegated by the Secretary to the
1.G. pursuant to 42 C.F.R. Part 1001. The Secretary has promulgated one regulation that
defines the term abuse and that definition is found at 42 C.F.R. Part 488, subpart E,
among the standards with which all nursing facilities must comply. There is no definition
of abuse under the exclusion regulations. It is logical that the Secretary would
promulgate only one regulation establishing a definition of the term abuse applicable to
the insurance programs the Secretary is tasked to administer to avoid, for example,

inconsistent definitions. It would be illogical
different regulations defining the term abuse.

for the Secretary to promulgate multiple
Even if it was deemed necessary to define

the term abuse in multiple regulations related

to the various aspects of the insurance

programs the Secretary is charged to administer, it would be illogical for the term abuse
to be given different meanings for different programs. Thus, the I.G.’s argument that the
absence of a specific definition of abuse in 42 C.F.R. Part 1001 frees the I.G. to adopt the
most favorable common definition that can be found, is not persuasive. The L.G. cites no
authority for the proposition that he is not bound to follow the Secretary’s regulations. I
am certainly bound by all the Secretary’s regulations, and I have no authority to find
them invalid or to refuse to follow them. 42 C.F.R. § 1005.4(c)(1). Accordingly, I
conclude that the definition of the term abuse that the Secretary promulgated at 42 C.F.R.
§ 488.301 must be applied to the facts in this case.

Abuse means the willful infliction of injury, unreasonable
confinement, intimidation, or punishment with resulting
physical harm, pain or mental anguish.

42 C.F.R. § 488.301 (emphasis in original).

Applying the definition of abuse at 42 C.F.R. § 488.301 to the facts, I have no trouble
concluding that Petitioner’s criminal conviction related to abuse of a resident. The
complaint states that Petitioner repeatedly told a 93-year-old resident that she was
“pathetic” and that “wheelchairs are for cripples.” IG. Ex. 3. There is no dispute that the
words were said intentionally. In the context in which the words were uttered, including
the fact that Petitioner was loud and raucous (I.G. Ex. 3), the words were intimidating
and by Petitioner’s own admission were intended to compel action by the resident. P. Ex.
5, at 2. The complaint also states that the resident was crying and sobbing, a fact which
Petitioner cannot now dispute, which shows that it was more likely than not that the
resident was suffering some mental anguish. Of course, the complaint also establishes
that Petitioner caused distress to the occupants of the Montrose Health Center. I.G. Ex. 3.
Petitioner argues that, even though she used loud language, she only meant to encourage
the resident. She argues that her conduct did not amount to confinement, intimidation, or
punishment. She argues that the I.G. has not shown she acted willfully or intentionally.
Petitioner argues that there is a material dispute as to whether the resident suffered mental
anguish. Petitioner’s arguments ignore that her exclusion is based upon her conviction,
and she cannot retry her case before me. Rather, she is bound by the facts related to her
conviction. 42 C.F.R. § 1001.2007(d). The facts show that Petitioner’s conviction for
disorderly conduct was related to her treatment of the resident, and the facts established
before the criminal trial court show that Petitioner abused the resident within the meaning
of 42 C.F.R. § 488.103.

If l had authority not to comply with the Secretary’s regulations and if I concluded that
the I.G. was also not bound to follow the Secretary’s regulations so that the LG. could
apply whatever definition of abuse he deemed most suitable, the result would be no
different. Various ALJs have elected to apply the common meaning of the terms “abuse”
and “neglect” in exclusion cases under section 1182(a)(2) of the Act rather than the
definition adopted by the Secretary in 42 C.F.R. § 488.301. Various appellate panels of
the Departmental Appeals Board (the Board) have reviewed and affirmed ALJs decision
in which the common meaning of abuse or neglect was applied by the ALJ rather than the
Secretary’s regulatory definition. See e.g., Lee G.Balos, DAB No. 1541 (1995); Janet
Wallace, L.P.N., DAB No. 1326 (1992); Summit Health Ltd., d/b/a Marina Convalescent
Hosp., DAB No. 1173, at 8 (1990). The Board was not called upon in any of those cases

to approve or disapprove of the use of the common meaning rather than the definition
adopted by the Secretary. Of course, it is no simple matter to determine which common
meaning is appropriate and none of the prior decisions explain how one definition is more
appropriate than another. Merriam-Webster” provides the following definitions: (1) a
corrupt practice or custom; (2) improper or excessive use or treatment, misuse (such as
drug abuse); (3) a deceitful act, deception; (4) language that condemns or vilifies usually
unjustly, intemperately, and angrily; and (5) physical maltreatment. Dictionary.com?
provides the following definitions: (1) to use wrongly or improperly, misuse; (2) to treat
in a harmful, injurious, or offensive way; (3) to speak insultingly, harshly, and unjustly to
or about, revile, mailing; (4) to commit sexual assault upon; and (5) to deceive or
mislead. Black’s Law Dictionary defines the noun “abuse” as: (1) a departure from legal
or reasonable use, abuse; (2) physical or mental maltreatment, often resulting in mental,
emotional, sexual or physical injury. Black’s Law Dictionary 10 (8th ed. 2004).
Applying any of these common definitions, I also have no difficulty concluding that
Petitioner’s conviction related to abuse of the resident. Petitioner clearly acted
intentionally when using the words “pathetic” and “wheelchairs are for cripples.” I.G.
Ex. 3. In the context in which the words were uttered, including the fact that Petitioner
was loud and raucous (I.G. Ex. 3), the words were intimidating and by Petitioner’s own
admission were intended to compel action by the resident. P. Ex. 5, at 2. Petitioner was
improper and excessive in her treatment. Her words condemned the resident and were
insulting. The resident was crying and sobbing, indicating that she was suffering mental
harm. Petitioner also caused distress to the occupants of the Montrose Health Center.
LG. Ex. 3.

Petitioner argues, citing principles of comity and the Tenth Amendment to the United
States Constitution that the I.G. must defer to the determination of the Iowa ALJ.
Petitioner’s theory is that by failing to define abuse in section 1128(a)(2) of the Act,
Congress reserved the power to the states to determine whether a conviction under state
law is related to abuse. Petitioner wants me to conclude that the state definition of abuse
applies and that the I.G. must defer to the state agency determination that Petitioner did
not abuse the resident. P. Br. at 11-14; P. Reply at 2-3; P. Ex. 4. As already noted,
Congress granted authority to the Secretary to administer the insurance programs under
the Social Security Act and to exclude providers and suppliers from participating in those
programs under certain conditions. The states have only such authority related to the
administration of the insurance programs under the Social Security Act as granted by
Congress or as contracted or delegated by the Secretary. The fact that the lowa ALJ
concluded that Petitioner’s conduct did not amount to abuse under Iowa state law has no

> Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/abuse.

> Dictionary.com, http://www.dictionary.reference.com/browse/abuse.
controlling effect regarding the Secretary’s exclusion of Petitioner, and Petitioner has
presented no persuasive argument that it should. Summit Health Ltd., DAB No. 1173
(1990). Petitioner’s arguments based on principles of comity and the Tenth Amendment
are without merit.

However, if I applied the definition of abuse found in Iowa law, I would nevertheless
conclude that Petitioner committed abuse based upon the facts related to her criminal
conviction, which I hasten to point-out are binding upon her in this proceeding though
they were not before the lowa ALJ. I concur with the lowa ALJ that the definition
applicable under Iowa law is that for “dependent adult abuse” found at lowa Code §
235B.2(5)(a)(1)(d) (2008). P. Ex. 4 at 9. Dependent adult abuse occurs under Iowa law
as a result of the willful or negligent acts or omissions of a caretaker that causes physical
injury, unreasonable confinement, unreasonable punishment, or assault of a dependent
adult. The lowa ALJ concluded that there was no physical injury or confinement. He
analyzed in detail whether Petitioner’s conduct amounted to unreasonable punishment,
struggling with the fact that unreasonable punishment is not actually defined by the lowa
statute. The lowa ALJ commented that Petitioner’s conduct crossed the “dignity line” (P.
Ex. 4, at 9); he likened her conduct with the resident to the conduct of a “NFL football
coach” (P. Ex. 4, at 10); and he commented that Petitioner’s language was demeaning (P.
Ex. 4, at 10). The Iowa ALJ concluded, however, that there was no unreasonable
punishment and, therefore, no dependent adult abuse. Inexplicably, the lowa ALJ did not
test Petitioner’s conduct against all the elements of the Iowa definition of dependent adult
abuse. In addition to physical injury, unreasonable confinement, and unreasonable
punishment, dependent adult abuse also occurs under the Iowa statute when due to willful
or negligent acts or omissions a caretaker commits an assault upon a dependent adult.
Assault is a criminal offense and it is defined by the Iowa criminal code at lowa Code §
708.1 (2002). An assault under the Iowa law is a general intent crime. A person commits
an assault under Iowa law when, without justification, the person does any of the
following:

1. Any act which is intended to cause pain or injury to, or
which is intended to result in physical contact which will be
insulting or offensive to another, coupled with the apparent
ability to execute the act.

2. Any act which is intended to place another in fear of
immediate physical contact which will be painful, injurious,
insulting, or offensive, coupled with the apparent ability to
execute the act.

3. Intentionally points any firearm toward another, or
displays in a threatening manner any dangerous weapon
toward another.
10

Iowa Code § 708.1 (2002). The crime of assault under Iowa law also includes
harassment, the definition of which includes:

A person commits harassment when the person, purposefully
and without legitimate purpose, has personal contact with
another person, with the intent to threaten, intimidate, or
alarm that other person. As used in this section, unless the
context otherwise requires, “personal contact” means an
encounter in which two or more people are in visual or
physical proximity to each other. ‘Personal contact” does
not require a physical touching or oral communication,
although it may include these types of contacts.

Iowa Code § 708.7(1)(b) (emphasis in original). Applying the definitions of assault and
arassment under Iowa law, I have no difficulty concluding that Petitioner committed

elder adult abuse under the Iowa definition of the phrase based upon her assault of the

resident. The facts by which Petitioner is bound, show that she intended to place the
resident in fear of physical contact, i.e. compelling her to walk, that would be painful,
injurious, insulting, or offensive, and Petitioner had the ability to execute the act.
Furthermore, Petitioner’s conviction establishes she had no legitimate purpose for her
threatening, intimidating and alarming conduct toward the resident, and no physical
contact was required.

Petitioner had a state trial where the facts were determined and a judgment of conviction
entered, she is prohibited from obtaining review of the basis for the conviction in this
forum and I have no jurisdiction to review the basis for her conviction.* Congress
requires that Petitioner be excluded if she was convicted of an offense relating to neglect
or abuse that was in connection with the delivery of a health care item or service. Act §
1128(a)(2). Petitioner’s conviction was clearly in connection with the delivery of a

ealth care service given her status as a restorative aide at the Montrose Care Center
nursing facility at the time and the fact she was directed to assist the resident. Under any
definition proposed by the parties, Petitioner’s conduct, as established by the lowa
criminal court, amounted to abuse. Accordingly, I conclude that there is a basis for
Petitioner’s exclusion, and her exclusion is mandated by section 1128(a)(2) of the Act.
The elements of section 1128(a)(2) are satisfied, and I have no discretion not to exclude
Petitioner.

* If Petitioner appeals her conviction and it is subsequently overturned, Petitioner should
contact the I.G. for reinstatement pursuant to 42 C.F.R. § 1001.3005(a)(1).
11

4. Pursuant to section 1128(c)(3)(B) of the Act, five years is the
minimum period of exclusion pursuant to section 1128(a) of the Act.

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

Five years is the minimum authorized period for a mandatory exclusion pursuant to
section 1128(a). Act § 1128(c)(3)(B). I have found there is a basis for Petitioner’s
exclusion pursuant to section 1128(a) of the Act, and the minimum period of exclusion is
five years, and that period is not unreasonable as a matter of law.

II. Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare,
Medicaid, and all federal health care programs for five years pursuant to section
1128(a)(2) of the Act, effective June 20, 2011.

/s/
Keith W. Sickendick
Administrative Law Judge