Zeynab Sagna-Nardy aka Gaye Seynabou, DAB CR6199 (2022)

DECISION

Petitioner, Zeynab Sagna-Nardy, owned and operated Medicaid-funded assisted living facilities in Tucson, Arizona.  She was indicted on nine felony counts of Vulnerable Adult Abuse because one of her facilities was without running water, which jeopardized the health and safety of the nine vulnerable men who lived there.  Petitioner ultimately pleaded guilty to one misdemeanor count of Obtaining a Utility Service Fraudulently.  Based on this conviction, the Inspector General (IG) has excluded Petitioner for five years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(1) of the Social Security Act (Act).  Petitioner appeals the exclusion.  For the reasons discussed below, I find that the IG properly excluded her.  Because the statute mandates a minimum five-year exclusion, the length of her exclusion is, by law, reasonable.

Background

In a letter dated August 31, 2022, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of

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five years because she had been convicted of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  The letter explained that section 1128(a)(1) of the Act authorizes the exclusion.  IG Ex. 1.

Petitioner timely requested review.

The IG submitted a written argument (IG Br.) and 15 exhibits (IG Exs. 1-15).  Petitioner submitted her own written argument (P. Br.) with 11 exhibits (P. Exs. 1-11).  In the absence of any objections, I admit into evidence IG Exs. 1-15 and P. Exs. 1-11.

Hearing on the written record.  I instructed the parties to indicate, in their briefs, whether an in-person (video) hearing would be necessary and, if so, to explain why, identify any proposed witness, and submit “in the form of an affidavit or a written sworn declaration,” the witness’s direct testimony.  Order and Schedule for Filing Briefs and Documentary Evidence at 4 (¶ 7) (October 4, 2022) (emphasis added).  The IG indicates that an in-person hearing is not necessary.  IG Br. at 5.

Petitioner maintains that an in-person hearing is necessary.  P. Br. at 2.  However, she lists no witnesses and concedes that she has no testimony to offer at an in-person hearing.  P. Br. at 2-4.  Because there are no witnesses, an in-person hearing would serve no purpose.  This case may therefore be decided based on the written record.

Discussion

1. Petitioner must be excluded from program participation for a minimum of five years because she was convicted of a criminal offense related to the delivery of an item or service under a state health care program.  Act § 1128(a)(1).¹

Under section 1128(a)(1) of the Act, the Secretary of Health and Human Services must exclude an individual who has been convicted under federal or state law of a criminal offense related to the delivery of an item or service under Medicare or a state health care program.  42 C.F.R. § 1001.101(a).

The charges.  Petitioner owned and operated an assisted-living facility, Heaven Can Wait, which was funded, in part, by the Arizona Health Care Cost Containment System (AHCCCS), the state’s Medicaid program.  IG Exs. 6, 7, 8; IG Ex. 10 at 3; IG Exs. 11, 13.

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On September 29, 2017, officers from the Tucson Police Department responded to an anonymous 911 call and went to the Heaven Can Wait facility.  An employee eventually answered the door, claiming that the other employee on duty had called requesting assistance with moving one of the residents (the facility did not have a working lift).  While there, the police officers observed that the facility had no running water.  They contacted Petitioner who conceded that, because she had not paid the water bill, the water department shut off the utility.  In their official report, the officers listed the following observations: 

• The water was shut off.
• Although ten people were inside the facility, only 4.5 gallons of water were available.
• Urine was in the bathroom sink.
• Urine and feces were in both of the facility’s toilets.
• The facility had no hand sanitizer.
• The evacuation plan was outdated; a secondary exit had sheetrock covering it.
• A medication cart was left unlocked and unattended, with keys on the top.
• Carpet tack strips were still on the floor.
• A broken gate separated the kitchen from the dining area.

IG Ex. 15 at 9.

In an Indictment and Information, filed May 4, 2018, Petitioner was charged with nine felony counts of Vulnerable Adult Abuse, in violation of Arizona Rev. Stat. §§ 13-3623(B)(1), 13-603, 13-701, 13-702, 13-703, 13-704, 13-801, 13-804, and 13-811.  The indictment charged that, between September 11 and September 29, 2017, Petitioner “intentionally or knowingly” caused nine vulnerable adults “to suffer physical injury or abuse” and/or placed them in a situation where their health was endangered.  IG Ex. 5.

The conviction.  On October 2, 2019, Petitioner pleaded guilty to one misdemeanor count of Obtaining Utility Service Fraudulently, in violation of Arizona Rev. Stat. §§ 13-3724(A)(1), 13-603, 13-701, 13-702, 13-703, 13-704, 13-801, 13-804, and 13-811.  The court accepted her plea and dismissed the felony charges.  IG Exs. 2, 3, 4.  The court

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sentenced Petitioner to three months probation.  She was ordered to pay to the Attorney General Health Care Fraud and Abuse Fund a fine of $1,000.  IG Ex. 4 at 2.

Related to the delivery of an item or service under Medicaid.  In determining whether a conviction is program-related within the meaning of section 1128(a)(1), I may look beyond the language of the statute under which she was convicted.  It is well-settled that the IG may rely on extrinsic evidence to explain the circumstances underlying a conviction.  The regulations specifically provide that evidence of “crimes, wrongs, or acts other than those at issue in the instant case is admissible to show motive, opportunity, intent, knowledge, preparation, identity, lack of mistake, or existence of a scheme.”  42 C.F.R. § 1005.17(g); see Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000), aff’d, 319 F.3d 1317 (11th Cir. 2003) (“We thus see nothing in section 1128(a)(2) that requires that the necessary elements of the criminal offense must mirror the elements of the exclusion authority, nor that all statutory elements required for an exclusion must be contained in the findings or record of the state criminal court.”); Timothy Wayne Hensley, DAB No. 2044 (2006); Scott D. Augustine, DAB No. 2043 (2006); Lyle Kai, R.Ph., DAB No. 1979 at 5 (2005), aff’d, Kai v. Leavitt, No. 05-00514 BMK (D. Haw. July 17, 2006); Tanya A. Chuoke, R.N., DAB No. 1721 (2000); Berton Siegel, D.O., DAB No. 1467 at 5 (1994); Carolyn Westin, DAB No. 1381 (1993), aff’d, 845 F. Supp. 1446 (D. Kan. 1994); Bruce Lindberg, D.C., DAB No. 1280 (1991).

Petitioner owned and operated a facility that accepted Medicaid funding.  She was obligated to care for its residents responsibly and to keep them safe.  Her conviction is linked to the condition her facility was in when the police arrived, with its nine vulnerable residents forced to live without running water.  This created a dangerous situation for them and put their health and safety in jeopardy.  Petitioner’s conviction was thus directly related to the delivery of services under a state health care program, and she is subject to exclusion.

Petitioner’s defenses.  Initially, Petitioner concedes that she was convicted of an offense for which exclusion is required.  P. Br. at 3-4.  She also concedes that the water was turned off for some period of time.  Nevertheless, she argues that the state investigator lied to the Grand Jury and that the prosecutors would not have been able to prove their case had she not pleaded guilty.  P. Br. at 4-5.  She claims that she did so at the suggestion of the sentencing judge so that she “could get [her] life back.”  P. Br. at 3.

Petitioner also points out that her conviction was set aside after she completed her probation and paid the necessary fees and fine.  P. Br. at 4; P. Ex. 11.

Having pleaded guilty, Petitioner may not use this forum to argue that she did not, in fact, commit the crime.  The regulations preclude such a collateral attack on an underlying conviction:

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When the exclusion is based on the existence of a criminal conviction . . . or any other prior determination where the facts were adjudicated and a final decision was made, the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal.

42 C.F.R. § 1001.2007(d); Delores L. Knight, DAB No. 2945 at 9 (2019); Marvin L. Gibbs, Jr., M.D., DAB No. 2279 at 8-10 (2009); Roy Cosby Stark, DAB No. 1746 (2000).

That her conviction was ultimately set aside does not mean that she wasn’t convicted within the meaning of section 1128.  The statute and regulations provide that a person is “convicted” when “a judgment of conviction has been entered” regardless of whether that judgment has been (or could be) expunged or otherwise removed.  Act § 1128(i)(1); 42 C.F.R. § 1001.2(a)(2).  Individuals who participate in “deferred adjudication or other program or arrangement where judgment of conviction has been withheld” are “convicted” within the meaning of the statute.  Act § 1128(i)(4); 42 C.F.R. § 1001.2(d).  Based on these provisions, the Departmental Appeals Board characterizes as “well established” the principle that a “conviction” includes “diverted, deferred and expunged convictions regardless of whether state law treats such actions as a conviction.”  Henry L. Gupton, DAB No. 2058 at 8 (2007), aff’d, 575 F. Supp. 2d 874 (E.D. Tenn. 2008).

An exclusion brought under section 1128(a)(1) must be for a minimum period of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.2007(a)(2).

Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participation in Medicare, Medicaid and all federal health care programs, and I sustain the five-year exclusion.

Endnote

¹  I make this one finding of fact/conclusion of law.