Vincent Damian Hillyer, DAB CR6503 (2024)

DECISION

The Inspector General (IG) of the United States Department of Health and Human Services excluded Vincent Damian Hillyer (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for five years pursuant to section 1128(a)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)).  For the reasons discussed below, it is determined that the IG had a basis to exclude Petitioner from program participation and that the five-year mandatory exclusion period must be imposed.  The IG’s exclusion determination is affirmed.

I. Background and Procedural History

By letter dated November 30, 2023, the IG excluded Petitioner from participating in Medicare, Medicaid, and all Federal health care programs pursuant to section 1128(a)(2) of the Act for five years, effective 20 days from the date of the letter.  IG Exhibit (Ex.) 1.  Petitioner was excluded due to a conviction of a criminal offense related to the neglect or abuse of a patient, in connection with the delivery of a health care item or service.  Id.  The conviction took place in the Circuit Court of St. Louis County, State of Missouri (state court).  Id.

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On February 2, 2024, the Civil Remedies Division (CRD) received Petitioner’s timely request for hearing before an administrative law judge (ALJ) to contest the five-year exclusion imposed by the IG.  Petitioner submitted two supporting documents along with his request for hearing.  Departmental Appeals Board (DAB) E-Filing Nos. 1_b-1_c.  On February 13, 2023, the CRD issued an Acknowledgment Notice, my Standing Prehearing Order, and the CRD Procedures.

A telephonic prehearing conference was held on March 12, 2024, and an Order Following Prehearing Conference and Setting Briefing Schedule (Prehearing Order) was issued the following day.  On April 11, 2024, the IG filed a brief (IG Br.) and six exhibits (IG Exs. 1-6).  On May 10, 2024, Petitioner filed a brief (P. Br.).  On May 22, 2024, the IG filed a reply brief (IG Reply).

II. Admissions of Exhibits and Decision on the Written Record

Petitioner did not propose any exhibits and did not object to the IG’s proposed exhibits.  Therefore, IG Exs. 1-6 are admitted into the record.

Petitioner indicated that an in-person hearing is necessary but neither identified witnesses nor provided any written direct testimony.  P. Br. at 5.  The IG objected to Petitioner’s request for an in-person hearing.  IG Reply at 3-4.  The Prehearing Order advised the parties that a hearing would be held only if a party asks to cross-examine a witness for whom the opposing party has provided written direct testimony.  Prehearing Order § 7.   Therefore, Petitioner’s request for an in-person hearing is denied, and this matter will be decided on the written record.  See Civ. Remedies Div. P. § 19(d).

III. Issue

Whether the IG had a basis to exclude Petitioner from participation in Medicaid, Medicare, and other federal health care programs under section 1128(a)(2) of the Act.  42 C.F.R. § 1001.2007(a)(2).

IV. Jurisdiction

This tribunal has jurisdiction to adjudicate this case.  42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2; see also 42 U.S.C. § 1320a-7(f)(1).

V. Findings of Fact

Petitioner was employed as the CEO of Great Circle Behavioral Health Services for Children (Great Circle), located in St. Louis County Missouri.  IG Ex. 4 at 8; P. Br. at 4.

D.W. was a 13-year-old resident of Great Circle with diagnoses including attention

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deficit hyperactivity disorder (ADHD), disruptive mood dysregulation disorder (DMDD), and an unspecified depressive disorder.  IG Ex. 4 at 97.

On May 7, 2019, a sworn criminal complaint was filed in the state court which alleged that on or about April 17, 2019, Petitioner restrained and choked D.W.  IG Ex. 2 at 1.  Video surveillance footage allegedly shows Petitioner talking to D.W. and asking him to sit on the couch.  IG Ex. 4 at 136 (Great Circle preliminary internal investigation report).  Approximately one minute later, D.W began to move, and Petitioner put his left arm around D.W.’s shoulder and upper torso.  IG Ex. 4 at 137.  About six minutes later, D.W. appeared to be struggling and squirming, which continued until D.W. attempted to leave this position.  Petitioner used both hands to hold D.W in place.  D.W. threw something at the wall, at which point Petitioner wrapped his arms around D.W.’s torso.  The struggle continued until other staff members arrived to fully restrain D.W.  Id.

On October 10, 2019, a grand jury issued an indictment, charging Petitioner with:  Endangering Welfare of Child in Ritual/Ceremony in the 2^nd degree in violation of Revised Statutes of Missouri (RSMo) § 568.050 (class E felony) (Count 1); Assault –fourth  degree in violation of RSMo § 565.056 (class A misdemeanor) (Count 2); and  Abuse of Healthcare Recipient in violation of RSMo § 191.905.6 (class C felony) (Count 3).  IG Ex. 5.

On October 18, 2021, the state court judge issued an order of findings following review of stipulated reports and a video recording of the incident.  IG Ex. 3.  The order contained the following findings:

The approximately five-minute video documents a scene where [Petitioner] is sitting next to D.W. on a sofa.  [Petitioner] appears to have his left arm over D.W.’s shoulders.  At some point, D.W. appears to become somewhat restless . . . [Petitioner’s] lower left arm points downward then across D.W.’s chest.  D.W appears to slide downwards in his seat; [Petitioner’s] arm slides slightly upwards and is then underneath D.W.’s chin, which his left hand pointing apparently diagonally (to the right) across D.W.’s body.  [Petitioner] and D.W. appear to sit this way for a minute or two; D.W. is moving around slightly. [Petitioner’s] left arm remains bent underneath D.W.’s chin. There is no sign of any violent struggle at all . . ..

IG Ex. 3 at 2.  The state court found Petitioner not guilty of Counts 1 and 3 of the indictment.  Petitioner was found guilty of Count 2, which alleged that:

[Petitioner], in violation of Section 565.056, RSMo,

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committed the class A misdemeanor of assault in the third¹ degree, punishable upon conviction under Sections 558.002 and 560.011, RSMo, in that on or about April 17, 2019, in the County of St. Louis, State of Missouri, [Petitioner] attempted to cause physical pain to D.W. by choking him.

IG Ex. 5 at 1.  The state court found, beyond a reasonable doubt, that Petitioner placed his left arm around D.W. and slid his left arm under D.W.’s chin, which appeared to restrain D.W.’s movement and was an attempt to cause physical pain to D.W. if he moved or tried to leave.  IG Ex. 3 at 3-4.  Petitioner was sentenced the same day.  The court entered judgment against Petitioner and suspended imposition of the sentence, placed Petitioner on one year of probation, and ordered a $10 payment pursuant to the Crime Victims Compensation Judgment.  IG Ex. 6.

VI. Legal Authorities

The Secretary of the United States Department of Health and Human Services shall exclude an individual from participation in Medicare, Medicaid, and all other federally funded health care programs if that individual “has been convicted, under Federal or State law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.”  42 U.S.C. § 1320a-7(a)(2).  The mandatory minimum length of an exclusion under section 1128(a)(2) is five years.  Act § 1128(c)(3)(B); 42 U.S.C. § 1320a-7(c)(3)(B).

Three elements must be proven to support a mandatory exclusion under section 1128(a)(2):  (1) whether Petitioner was convicted of a criminal offense; and if so, (2) whether the conviction related to the neglect or abuse of a patient or patients; and (3) whether the offense was committed in connection with the delivery of a health care item or service.  Act § 1128(a)(2); 42 U.S.C. § 1320a-7(a)(2); 42 C.F.R. § 1001.101(b).

The IG has the burden of proving all elements listed above by a preponderance of the evidence, meaning a fact is proven if the evidence shows that it is more likely true than not true.  42 C.F.R. §§ 1001.2007(c), 1005.15(d).

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VII. Analysis and Conclusions of Law

1. Petitioner was convicted of a criminal offense.²

In order to prevail, the IG must prove that Petitioner “has been convicted, under Federal or State law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service.”  Act § 1128(a)(2); 42 U.S.C. § 1320a‑7(a)(2); 42 C.F.R. § 1001.101(b).  Each element is discussed in detail below.

Under the Act, an individual is considered to have been convicted of a criminal offense:

(1) 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;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Act § 1128(i) (emphasis added); 42 U.S.C. § 1320a-7(i); see also 42 C.F.R. § 1001.2 (paragraph (c) under the definition of “Convicted”).

The state court found Petitioner guilty of fourth degree Assault in violation of RSMo § 565.056.  IG Exs. 3 at 3-4, 6 at 1-2.  Petitioner does not dispute that he was convicted of a criminal offense.  P. Br. at 1.  Therefore, I find that Petitioner was convicted of a criminal offense under section 1128(a)(2) of the Act.  See 42 U.S.C. § 1320a-7(i)(3)-(4); 42 C.F.R. § 1001.2.

2. Petitioner’s conviction related to abuse of a patient.

The IG must also prove that Petitioner’s conviction was related to neglect or abuse of a patient.  Section 1128 does not provide a definition for abuse.  When a word is undefined

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in the Act or regulations, DAB decisions have utilized the common and ordinary meaning of the word.  Summit Health Ltd., DAB No. 1173 at 8 (1990) (“Giving these unambiguous terms their common and ordinary meaning reasonably fulfills” the purpose and intent of section 1128(a)(2)).  The common and ordinary meaning of “abuse” is “physical maltreatment” or “improper or excessive use or treatment.”  See https://www.merriam-webster.com/dictionary/abuse (last accessed June 21, 2024).

In this case, the underlying facts and circumstances surrounding Petitioner’s conviction are clearly related to the abuse of a patient. Whether a conviction is related to abuse or neglect “is a legal determination to be made by the Secretary [for Health and Human Services] based on the facts underlying the conviction.  The offense that is the basis for the exclusion need not be couched in terms of patient abuse or neglect.”  57 Fed. Reg. 3298, 3303 (Jan. 29, 1992).  It is a question of “whether there is a commonsense nexus between the underlying offense and potential or actual harm to the health and well-being of a patient in the course of health care delivery.”  Robert C. Hartnett, DAB No. 2740 at 7 (2016) (emphasis in original).

The DAB has discussed in detail the law applicable to this analysis:

ALJs are not limited to considering the bare elements or labels of the criminal statutes under which the individual was convicted.  Summit S. Shah, DAB No. 2836, at 7 (2017) (“The Board has long held . . . that an ALJ is free to look beyond the narrow constructs of a state’s criminal statutes.”); Narendra M. Patel, DAB No. 1736, at 10 (2000) (Congress did not intend to limit the [IG’s] exclusion authority through “dependence on the vagaries of state criminal law definitions or record development”), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003); Berton Siegel, D.O., DAB No. 1467, at 4 (1994) (“[I]t is not the labeling of the offense under the state statute which determines whether the offense is program-related”).  Rather, ALJ’s [sic] may look at “evidence as to the nature of an offense” such as “facts upon which the conviction was predicated.”  Id.; Patel at 10 (“[T]he conviction is not required to be for patient neglect or abuse, but rather the circumstances that surrounded the actual offense need only show a relation to the neglect or abuse of a patient”); Rudman at 9 (an ALJ may consider “evidence regarding the nature of the offense, rather than the state’s labeling of the admitted offense, to determine whether it involved conduct warranting exclusion”).

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Funmilola Mary Taiwo, DAB No. 2995 at 8 (2020).

It is undisputed that Petitioner was convicted of (for the purposes of section 1128(a)(2) of the Act), fourth degree misdemeanor Assault in violation of RSMo § 565.056, which states:

A person commits the offense of assault in the fourth degree if:

(1)  The person attempts to cause or recklessly causes physical injury, physical pain, or illness to another person;

(2)  With criminal negligence the person causes physical injury to another person by means of a firearm;

(3)  The person purposely places another person in apprehension of immediate physical injury;

(4)  The person recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person;

(5)  The person knowingly causes or attempts to cause physical contact with a person with a disability, which a reasonable person, who does not have a disability, would consider offensive or provocative; or

(6)  The person knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative.

RSMo § 565.056 (emphasis added).

Petitioner argues that the underlying circumstances of his conviction are not related to abuse because Petitioner was “forced to attempt to restrain D.W. until another, properly trained, staff member could put him into an appropriate hold,” and points to D.W.’s “history of being verbally and physically aggressive towards others.”  P. Br. at 3.  Petitioner further cites the state court judge’s finding that there was no sign of a violent struggle, nor did D.W. appear to be struggling for breath or in any acute distress.  P. Br. at 3 (citing IG Ex. 3 at 2).  To the extent that Petitioner attempts to challenge his conviction by raising these circumstances as a defense, it is well established that   collateral attacks of the underlying conviction are not permitted in these proceedings.  42 C.F.R. § 1001.2007(d).

Petitioner’s arguments are unavailing because the circumstances that surrounded his offense show a commonsense nexus to abuse of a patient.  It is undisputed that D.W. was a patient of Great Circle.  P. Br. at 5.  Petitioner is a six-foot tall adult male and weighed

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215 lbs. at the time of the incident.  D.W. was a 13-year-old juvenile.  IG Ex. 4 at 2, 6.  On April 17, 2019, Petitioner restrained D.W. for approximately five minutes, during which he placed his left arm across D.W.’s chest and then underneath his chin; D.W., at times, attempted to leave this position.  IG Exs. 3 at 2; 4 at 137.  Petitioner physically restrained D.W. and placed his arm underneath D.W.’s chin, which was an attempt to cause physical pain to D.W. if he moved or tried to leave.  IG Ex. 3 at 3-4.  Petitioner was ultimately convicted of Count 2 of the indictment, which alleged that he committed fourth³ degree misdemeanor assault because he attempted to cause physical pain to D.W. by choking him.  IG Ex. 5 at 1.  These facts all support a relation to the abuse of a patient based on the potential harm that Petitioner’s conduct posed to the health and well-being of D.W.  Hartnett, DAB No. 2740 at 7.  Therefore, both the underlying facts and circumstances surrounding Petitioner’s fourth degree assault conviction and the actual language of RSMo § 565.056 show a commonsense connection or a nexus between Petitioner’s conviction and the abuse of a patient.

3. Petitioner’s offense was committed in connection with the delivery of a health care item or service.

Lastly, to prove that Petitioner’s conviction was committed in connection with the delivery of a health care item or service, the IG must show that there is a nexus between the offense and the delivery of a health care item or service.

Petitioner argues that he should not be excluded because he did not provide any kind of health care service, as his position as CEO of Great Circle did not entail any responsibility for individually managing specific patients.  Petitioner further argues that by “engaging personally with D.W. immediately prior to the incident, Petitioner effectively stepped outside of his role as CEO.  Once outside of his role, Petitioner was not providing any kind of health care service.”  P. Br. at 4.

However, the Departmental Appeals Board has repeatedly upheld exclusions of professionals in leadership positions of residential facilities, such as administrators and directors, whose convictions related to abuse or neglect of patients.  See e.g., Chaim Charles Steg, DAB No. 3115 at 9 (2023) (rejecting argument that exclusion unwarranted under section 1128(a)(2) because Petitioner did not have direct patient contact); Shaun Thaxter, DAB No. 3053 at 15 (2021).  Furthermore, it is well-established that the words “in connection with” only require a showing of a minimal nexus between the offense and the delivery of a health care item or service.  Hartnett, DAB No. 2740 at 10 (citing Bruce Lindberg, D.C., DAB No. 1386 at 8 (1993)).

It is uncontroverted that, at all times relevant to this matter, Petitioner was the CEO of Great Circle, a children’s behavioral health services organization, and that Petitioner’s

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offense specifically involved D.W., a patient of Great Circle.  The record shows that Petitioner visited D.W.’s “cottage” the day of the offense because he wanted to clean up the campus prior to the arrival of the “Joint Commission.”  IG Ex. 4 at 16.  During the week of the offense, Petitioner had been visiting the cottage every day, based at least in part on reports of D.W. hitting a staff member and creating a mess.  IG Ex. 4 at 17.  Petitioner initially grabbed D.W. and walked him over to a couch because D.W. was picking at a recently repaired patch of dry wall.  IG Ex. 4 at 17.  Therefore, the evidence  shows at least a minimal nexus between Petitioner’s offense and the delivery of a health care service (e.g., behavioral health services).  There is no evidence in the record, as Petitioner avers, that Petitioner stepped outside of his role as CEO when accosting D.W. the day of the offense.  Accordingly, the evidence supports far more than a “minimal showing of a connection” between Petitioner’s offense and the delivery of a health care item or service.  Hartnett, DAB No. 2740 at 7 n.6.

4. Because it has been determined that Petitioner was convicted of a criminal offense related to the abuse of a patient in connection with the delivery of a health care item or service, a five-year exclusion must be imposed.

In appeals of mandatory exclusions, ALJs are restricted to considering whether there is a legal basis for the exclusion and whether the period of exclusion is reasonable.  42 C.F.R. § 1001.2007(a)(1).  However, where the IG imposes the mandatory minimum exclusion of five years, “the exclusion’s length is reasonable as a matter of law, and the excluded individual may request a hearing only on the issue” of whether there is a basis for exclusion.  Diane Marie Krupka, DAB No. 3020 at 2 (2020); 42 C.F.R. § 1001.2007(a)(2).  In this case, the IG has imposed the mandatory minimum five-year exclusion, so I do not have the authority to review whether the length of the exclusion is reasonable.

VIII. Conclusion

The IG has proven by a preponderance of the evidence that Petitioner was (1) convicted of a criminal offense; (2) the conviction was related to the abuse of a patient; and (3) the offense was committed in connection with the delivery of a health care item or service.  Therefore, Petitioner shall be excluded from participating in Medicare, Medicaid, and all other federal health care programs for the mandatory five-year period.  The five-year exclusion imposed by the IG is AFFIRMED.

Endnotes

¹  The indictment lists the charge as fourth degree assault but describes it as third-degree assault.  This discrepancy is immaterial because the court ultimately found Petitioner guilty of fourth degree assault.  IG Ex. 6 at 1.

²  The conclusions of law are set forth in bold headings, followed by pertinent analysis.

³  See fn. 1, supra.