Krystal C. Bohanon, DAB CR6653 (2025)

DECISION

The Inspector General (IG) of the U.S. Department of Health and Human Services excluded Krystal C. Bohanon (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for a minimum period of 10 years pursuant to section 1128(a)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)).  For the reasons stated below, I conclude that the IG had a basis for excluding Petitioner from program participation, and a mandatory exclusion must be imposed.  Based on the facts and evidence presented in this case, a 10-year exclusion is not unreasonable.

I.     Background and Procedural History

By letter dated September 30, 2024, the IG notified Petitioner that she was being excluded from Medicare, Medicaid, and all federal health care programs pursuant to section 1128(a)(2) of the Act.  The IG explained that Petitioner was excluded due to a conviction of a criminal offense, in the Parma Municipal Court, Cuyahoga County, in the State of Ohio, “related to the neglect or abuse of a patient, in connection with the delivery

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of a health care item or service.”  IG Exhibit (Ex.) 1.  The IG identified one aggravating factor to justify extending the length of Petitioner’s exclusion.

The Civil Remedies Division (CRD) received Petitioner’s request for a hearing on October 25, 2024.  On October 31, 2024, the CRD issued my Standing Pre-Hearing Order (Standing Order) and a letter, at my direction, acknowledging receipt of Petitioner’s hearing request and notifying the parties that a telephone prehearing conference was scheduled for November 19, 2024, at 2:00 p.m. EST.

At the prehearing conference, the parties agreed to a briefing schedule.  On November 20, 2024, an Order Following Prehearing Conference and Setting Briefing Schedule (November 20, 2024 Order) was issued.

On January 3, 2025, the IG filed a brief (IG Br.) along with five exhibits (IG Exs. 1-5).  Petitioner filed a brief (P. Br.) on February 7, 2025.  On February 21, 2025, the IG filed a reply brief (IG Reply Br.).

II.     Admission of Exhibits and Decision on the Written Record

Absent objection, IG Exhibits 1-5 are admitted into the record.

The IG indicated that an in-person hearing is not necessary to resolve this matter.  IG Br. at 6.  Petitioner did not indicate whether an in-person hearing is necessary, however, neither party identified witnesses nor provided written direct testimony.  As stated in the November 20, 2024 Order, a hearing will be held only if a party asks to cross-examine a witness for whom the opposing party has provided written direct testimony and the witness’ proposed testimony is found to be relevant and non-cumulative.  November 20, 2024 Order at 4; Civil Remedies Division Procedures § 19(d).  Therefore, a hearing is not necessary, and this matter will be decided on the written record.

III.     Issues

The issues to be decided are:

1) Whether the IG has a basis for excluding Petitioner from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(2) of the Act (42 U.S.C. § 1370a-7(a)(2)); and

2) Whether the 10-year exclusion imposed by the IG is unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).

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IV.     Jurisdiction

I have jurisdiction to hear and adjudicate this case.  42 C.F.R. §§ 1001.2007(a)(1), 1005.2; see also 42 U.S.C. § 1320a-7(f)(1).

V.     Findings of Fact

1. Memphis House is an intermediate care facility for individuals with intellectual disabilities located in Brooklyn, Ohio.  IG Ex. 4 at 2; IG Ex. 5.  Petitioner was employed as a nurse’s aide at Memphis House from April 23, 2018 until her termination on March 11, 2022.  IG Ex. 5 at 2.
2. P.G. is a 76-year-old developmentally disabled resident of Memphis House.  P.G. has several medical diagnoses and requires a wheelchair for mobility.  IG Ex. 5 at 2.  On March 3, 2022, Petitioner was tasked with transporting P.G. to a dental appointment.  IG Ex. 5 at 3.  Petitioner used a van, specially equipped to transport individuals with developmental disabilities who require the use of a wheelchair.  Id. at 2.  The ride to the appointment was without incident.  However, on the return ride to Memphis House, Petitioner failed to properly secure P.G.’s wheelchair to the floor of the van.  Id. at 1-2.  As a result, the wheelchair fell over during transport.  Id. at 4.  Paramedics were called to the scene and observed P.G. on the floor of the transport van with a large hematoma over her eye.  Id. at 3.  Petitioner told the medics that P.G. had a seizure during transport.
3. P.G. was transported to the hospital, where she remained for almost two weeks.  Id.  As a result of the fall, P.G. sustained a broken finger, a laceration to her face, swelling on the right side of her head, and a brain bleed.  Id.
4. Memphis House investigated the incident and had Petitioner sign an Incident Report on March 3, 2022.  In the report, Petitioner stated that the resident had a seizure during transport which caused her to stop the van.  IG Ex. 5 at 3.  Petitioner stated that she was attempting to assist P.G. out of her wheelchair and to a lower level, when P.G. slipped out of her arms and hit her head.  Id.  The incident report was later submitted to the Cuyahoga County Board of Developmental Disabilities (CCBDD).
5. Petitioner was later confronted regarding her different accounts of the incident and admitted to not properly securing the resident’s wheelchair.  IG Ex. 5 at 4.
6. As a result of the incident, Petitioner was charged with one count of Gross Patient Neglect in violation of Ohio R.C. § 2903.34(A)(2), a first-degree misdemeanor.  The complaint states:  “no person who owns, operates, or administers, or who is an

agent of or an employee of a care facility [shall] commit neglect against a resident or patient of the facility, to wit:  Krystal C. Bohanon, committed neglect against [P.G.] a patient/resident of Memphis House Care Facility.”  IG Ex. 2 at 3.

7. Petitioner was also charged with one count of Falsification in violation of Ohio Revised Code § 2921.13(A)(7), a first-degree misdemeanor.  IG Ex. 5 at 5.  The complaint states that Petitioner did:  “knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made when a statement is in writing on or in connection with a report that is required or authorized by law, to wit:  Krystal C. Bohanon knowingly made a false statement on the CCBDD incident report by omitting the fact that she failed to properly secure [P.G.] and her wheelchair to the transport van and the nature of how [P.G.] came to fall.”  IG Ex. 2 at 1.
8. On July 2, 2024, Petitioner pleaded no contest and was found guilty of two misdemeanor counts of disorderly conduct in violation of Parma Code § 648.04.  IG Ex. 3.  Petitioner waived the issuance of a new complaint.  Id.

VI.     Legal Background

The Secretary of Health and Human Services (Secretary) 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.”  Act § 1128(a)(2); 42 U.S.C. § 1320a-7(a)(2).  Five years is the mandatory minimum length of an exclusion under sections 1128(a)(1)-(a)(4).  Act § 1128(c)(3)(B); 42 U.S.C. § 1320a-7(c)(3)(B).

In exclusion cases, the IG has the burden of proving the basis for the exclusion and the existence of any aggravating factors.  42 C.F.R. § 1005.15(c); Standing Order ¶ 6.  Petitioner has the burden of proving any affirmative defenses or factors to mitigate the length of the exclusion if aggravating factors have been established.  42 C.F.R. § 1005.15(c); Standing Order ¶ 6.  The standard of proof is a preponderance of the evidence, which means 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).

An excluded individual may request a hearing before an administrative law judge (ALJ), but only on the issues of whether the IG had a basis for the exclusion and whether an exclusion longer than the required minimum period is unreasonable in light of any applicable aggravating and mitigating factors.  42 C.F.R. §§ 1001.2007(a), 1005.2(a).

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VII.     Analysis and Conclusions of Law

1. Petitioner was convicted of a criminal offense related to the neglect or abuse of a patient, committed in connection with the delivery of a health care item or service, which subjects her to a mandatory exclusion from all federal health care programs for a minimum of five years.

In order to prevail, the IG must prove that:

1) Petitioner was convicted of a criminal offense under state or federal law;
2) The offense related to the neglect or abuse of patients; and
3) 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).

1. Petitioner was convicted of a criminal offense.

Under the Act, an individual is considered to have been convicted of a criminal offense when “a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court.”  Act § 1128(i)(1), (3) (42 U.S.C. § 1320a-7(i)(1), (3)); see also 42 C.F.R. § 1001.2 (paragraphs (a) and (c) under the definition of “Convicted”).

The evidence shows that on July 2, 2024, the trial court accepted Petitioner’s no contest plea to two counts of disorderly conduct and found her guilty.  IG Ex. 3 at 1.  Petitioner does not dispute that she was convicted of disorderly conduct in violation of Parma Codified Ordinance 648.04.  P. Br. at 1.

2. Petitioner’s conviction related to the abuse or neglect of a patient.1

Petitioner argues that her disorderly conduct convictions do not require exclusion because the convictions do not relate to the abuse or neglect of a patient.  See P. Br.  Petitioner argues that Parma Codified Ordinance 648.04 for disorderly conduct has many different subsections, and the trial court did not specify of which subsection Petitioner was convicted.  According to Petitioner, two of the subsections could not possibly be related

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to abuse and neglect.  P. Br. at 2.  Despite the subsection being unspecified, the underlying facts of the criminal offense remain the same.  Here, the underlying criminal offense is based on Petitioner’s failure to properly secure a patient’s wheelchair to the transport van, which caused significant injuries to the 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.  Further, 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).  The Departmental Appeals Board (Board) has discussed in detail the law applicable to this analysis:

ALJ’s [sic] 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”).

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

In a similar case involving a conviction for disorderly conduct, the Board stated that “ALJs may, among other things, look to ‘the factual allegations underpinning the offense with which a petitioner was charged and which form the basis of the requisite conviction.’”  Shelia Ann Reed, DAB No. 3059 at 15 (2022) (citations and emphasis omitted).  The factual allegations of the underlying offense, including Petitioner’s failure

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to secure a patient during a transport to a dentist appointment, show that Petitioner’s conviction related to the neglect or abuse of a patient.  The record shows, and Petitioner does not dispute, that the patient suffered injuries as a direct result of Petitioner’s actions.  A brain bleed, a broken finger, and other injuries that required an almost two-week hospital stay are not to be taken lightly.  In addition, Petitioner has not shown that the disorderly conduct convictions stemmed from facts different from those outlined in the evidence submitted by the IG.

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

The regulations require that the offense be committed “in connection with” the delivery of a health care item or service.  The Board has repeatedly held that the words “in connection with” only require a showing of a minimal nexus between the offense and the delivery of health care item or service.  Robert C. Hartnett, DAB No. 2740 at 10 (2016) (citing Bruce Lindberg, D.C., DAB No. 1386 at 8 (1993)).  Petitioner argues that transporting an individual in a van does not amount to delivering a health care item or service.  P. Br. at 2.  However, Petitioner was not transporting P.G. in her personal capacity.  Petitioner, in her capacity as a nurse’s aide, was tasked with transporting a resident of Memphis House, an intermediate care facility for individuals with intellectual disabilities, to a dentist appointment.  There is a clear nexus between Petitioner’s conviction and the delivery of a health care item or service.  Therefore, the IG has proven that Petitioner’s offense was committed in connection with the delivery of a health care item or service.

2. The IG identified one aggravating factor that supports an exclusion beyond the five-year minimum.

Exclusions imposed under section 1128(a)(2) carry a five-year mandatory minimum exclusion period.  Act § 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)); 42 C.F.R. § 1001.102(a).  The IG may extend the five-year exclusion period based on the application of the aggravating factors listed in 42 C.F.R. § 1001.102(b).  If any of the aggravating factors set forth in 42 C.F.R. § 1001.102(b) justify an exclusion longer than five years, mitigating factors listed at 42 C.F.R. § 1001.102(c) may be considered as a basis for reducing the period of exclusion to no less than five years.  In this case, the IG has proposed a 10-year exclusion based on one aggravating factor.

The IG identified the following aggravating factor as a basis for imposing a 10-year exclusion against Petitioner:  the acts that resulted in the conviction, or similar acts, had a significant adverse physical, mental, or financial impact on one or more program beneficiaries or other individuals.  The acts resulted in patient physical harm and hospitalization.  IG Ex. 1.

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Petitioner does not dispute the presence of this aggravating factor.  P. Br. at 2.  P.G. suffered significant adverse physical impact due to Petitioner’s failure to properly secure the wheelchair during transport.

3. Based on the one aggravating factor and no mitigating factors, I find that the 10-year exclusion imposed by the IG is not unreasonable.

The length of the IG’s exclusion must be upheld as long as it is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii).  In determining whether the length of exclusion is unreasonable, I must determine whether the length of the exclusion falls into a “reasonable range” based on the evidence submitted.  It is important to note that it is the quality of the aggravating (or mitigating) factors that is most important when considering the length of exclusion and not the sheer number of aggravating factors that are present in a given case.  The Secretary stated in the preamble to the final rule establishing the exclusion regulations that:

We do not intend for the aggravating and mitigating factors to have specific values; rather, these factors must be evaluated based on the circumstances of a particular case.  For example, in one case many aggravating factors may exist, but the subject’s cooperation with the OIG may be so significant that it is appropriate to give that one mitigating factor more weight than all of the aggravating.  Similarly, many mitigating factors may exist in a case, but the acts could have had such a significant physical impact on program beneficiaries that the existence of that one aggravating factor must be given more weight than all of the mitigating.  The weight accorded to each mitigating and aggravating factor cannot be established according to a rigid formula, but must be determined in the context of the particular case at issue.

57 Fed. Reg. 3,298, 3,314-15 (Jan. 29, 1992).

Petitioner argues that her exclusion is unreasonable because it is equal in length to the exclusion imposed on a doctor who committed sexual abuse of a patient.  P. Br. at 2 (citing Narendra Patel, M.D., DAB No. 1736 (2000)).  Similarly, Petitioner cites another case, Esohe Agbonkpolor, DAB No. 3002 (2020), in which the IG imposed a five-year exclusion for a nurse who failed to provide assistance to an injured patient.  Petitioner claims that in Agbonkpolor, the petitioner’s behavior was “more egregious” due to not helping a patient in need.  P. Br. at 2.  However, in that case, the patient’s injuries were not caused by the petitioner’s actions, and the IG did not identify any aggravating factors to extend the length of the exclusion.  Case comparisons are of limited value, as I am tasked with determining whether an exclusion is reasonable based on the specific facts

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and aggravating and mitigating factors in each case.  “Every case involves a complex interaction of diverse circumstances and regulatory factors with varying weights.  For this very reason case comparisons, while sometimes informative for the ALJ’s or the Board’s decision-making in a given case, are of limited value and ultimately are not dispositive on the question of reasonableness of an exclusion period in a given case.”  Eugene Goldman, M.D., DAB No. 2635 at 11 (2015) (citing Sushil Aniruddh Sheth, M.D., DAB No. 2491 at 6 (2012)).

Here, the sole aggravating factor carries substantial weight due to the significant injuries that the resident suffered as a result of Petitioner’s failure.  Petitioner argues that at most the allegations in the underlying criminal complaint indicate a temporary lapse in judgment.  P. Br. at 3.  Petitioner also notes that she has no criminal record and no history of professional misconduct.  P. Br. at 2.  While I have no reason to doubt Petitioner’s statement regarding her criminal and professional history, and while this may have been a temporary lapse in judgment, the injuries that the patient suffered due to Petitioner’s actions were great in nature.  The IG also noted that the result of Petitioner’s conduct was “serious.”  IG Reply Br. at 2.  Based on the facts and circumstances surrounding this case, I find that a 10-year exclusion is not unreasonable. 

VIII.     Conclusion

For the foregoing reasons, I find that the IG has proven, by a preponderance of the evidence, that Petitioner was convicted of an offense that requires exclusion under section 1128(a)(2) of the Act.  I also find that a 10-year exclusion from participation in Medicare, Medicaid, and all other federal health care programs, effective 20 days from September 30, 2024, is not unreasonable based on the circumstances of this case.