Nieves Mayra Lopez, DAB CR6673 (2025)

DECISION

Petitioner, Nieves Mayra Lopez, was a direct care worker at a group home for disabled adults with developmental disabilities, located in Orlando, Florida. She was charged with and pleaded nolo contendere to one count of neglect of a disabled adult, a felony. Based on her conviction, the Inspector General (IG) has excluded her for eight years from participating in Medicare, Medicaid, and all federal health care programs, as authorized by section 1128(a)(2) of the Social Security Act (Act). Petitioner appeals the exclusion.

For the reasons discussed below, I find that the IG properly excluded Petitioner Lopez and that the eight-year exclusion falls within a reasonable range.

Background

In a letter dated November 29, 2024, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of eight years because she had been convicted of a criminal offense related to the neglect or abuse of patients in connection with the delivery of a health care item or

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service. The letter explained that section 1128(a)(2) of the Act authorizes the exclusion. IG Ex. 1.

Petitioner timely requested review.

Each party submitted a written argument (IG Br.; P. Br.). The IG submitted six exhibits (IG Exs. 1-6). With her brief, Petitioner submitted a written argument, which she labeled an exhibit (P. Ex. 1). In the absence of any objections, I admit into evidence IG Exs. 1-6. I consider the arguments set forth in P. Ex. 1 but decline to admit it as an exhibit because it is argument, not evidence.

The parties agree that an in-person hearing is not necessary. IG Br. at 9; P. Br. at 3.

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 neglect or abuse of a patient in connection with the delivery of a health care item or service. Act § 1128(a)(2).1 

Under section 1128(a)(2) 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 neglect or abuse of a patient, in connection with the delivery of a health care item or service” that the IG concludes entailed or resulted in neglect or abuse of patients. 42 C.F.R. § 1001.101(b). The “delivery of a health care item or service” includes providing any item or service to an individual to meet his or her physical, mental, or emotional needs or well-being, whether or not reimbursed by Medicare, Medicaid, or any federal health care program. Id.

Here, Petitioner Lopez was a direct care worker at a group home for disabled and vulnerable adults with developmental disabilities. In that capacity, she was responsible for the care, supervision, and well-being of the home’s residents. IG Ex. 6 at 2. On April 8, 2023, she and a co-worker were working in the home. Her co-worker was primarily responsible for a non-verbal resident, diagnosed with autism. The resident required assistance with his basic needs and was supposed to be supervised at all times.

Disregarding the resident’s needs, at about 5:40 p.m., the co-worker locked the resident in his room and wedged a chair against the door to prevent him from leaving. The

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employee then left the building and did not return until after 9:00 p.m. IG Ex. 6 at 2, 4, 8, 11.

In the meantime, Petitioner Lopez knew that the resident was confined to his room – without access to food, water, a bathroom, and other care – because the chair was wedged against the door. She falsely documented that she had opened his door and visually checked on him every 10 minutes. Video footage showed that she did not move the chair or open the door. She did not check on the resident, who remained locked in his room for hours. IG Ex. 6 at 2, 5-6, 13, 17.

On June 28, 2024, Petitioner was charged with one felony count of neglect of a disabled adult, in violation of Florida Statutes §§ 825.102(3)(a)(1) and 825.102(3)(c). The information charged that, while acting as caregivers to a disabled adult, she and her co-worker “willfully or by culpable negligence failed or omitted to provide [the resident] with the care, supervision, and services necessary to maintain [his] physical or mental health.” IG Ex. 2 at 1.

On August 27, 2024, Petitioner pleaded nolo contendere to violating section 825.102(3)(c). IG Ex. 3. She and the prosecutor agreed that adjudication would be withheld, that she would serve one-half of her term of probation, and that she would not be employed to provide care or other services to disabled adults. IG Ex. 3 at 1. The criminal court accepted her plea and entered judgment against her. IG Ex. 4. The court withheld adjudication but sentenced her to one day in jail and placed her on two years of supervised probation. She was ordered to pay $518 in fines and costs. IG Ex. 5.

Petitioner concedes that she was convicted of a criminal offense for which an exclusion is required. P. Br. at 1, 2.

2. Based on one aggravating factor and no mitigating factors, the eight-year exclusion is reasonable.

An exclusion under section 1128(a)(2) must be for a minimum period of five years. Act § 1128(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2). I now consider whether the length of the exclusion, beyond five years, falls within a reasonable range.

Federal regulations set forth criteria for lengthening exclusions beyond the five-year minimum. 42 C.F.R. § 1001.102(b). The presence of an aggravating factor or factors, not offset by any mitigating factor or factors, justifies lengthening the mandatory period of exclusion. Evidence that does not pertain to one of the aggravating or mitigating factors listed in the regulations may not be used to decide whether an exclusion of a particular length is reasonable.

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Among the factors that may serve as a basis for lengthening the period of exclusion is the one that the IG relies on in this case: the acts that 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. 42 C.F.R. § 1001.102(b)(3).

Locking anyone up for more than three hours, without access to food, water, or a bathroom would have an adverse impact. But the resident here was particularly vulnerable. He required “intensive behavioral residential habilitation” because he had caused injury to himself or others resulting in emergency room or inpatient care and life-threatening situations (dangerous eating, ruminating, severe insomnia, etc.). He was physically aggressive, practiced self-injurious behaviors, destroyed property, and ingested inedible substances, a condition known as PICA. PICA is common in individuals with Autism Spectrum Disorder and can lead to serious medical and surgical problems. The resident had a history of emergency room visits due to self-injuries, and, according to his assessment and care plan, “require[d] enhanced supervision to ensure his health and safety along with the health and safety of others.” IG Ex. 6 at 19.

Mitigating factors. The regulations consider mitigating just three factors: 1) a petitioner was convicted of three or fewer misdemeanor offenses and the resulting financial loss to the program was less than $5,000; 2) the record in the criminal proceedings demonstrates that a petitioner had a mental, physical, or emotional condition that reduced her culpability; and 3) a petitioner’s cooperation with federal or state officials resulted in others being convicted or excluded, or additional cases being investigated, or a civil money penalty being imposed. 42 C.F.R. § 1001.102(c). Petitioner bears the burden of proving any mitigating factor by a preponderance of the evidence. 42 C.F.R. § 1005.15(c); Barry D. Garfinkel, M.D., DAB No. 1572 at 8 (1996); see Order and Schedule for Filing Briefs and Documentary Evidence at 3 (¶ 4).

Petitioner has not established that any of these factors apply.

Petitioner concedes that the “aggravating factors cited by the [IG] are present” but asserts that “other facts should also be considered.” P. Ex. 1 at 1. She claims that the resident was asleep the entire time he was locked up, so he was unhurt. She could not possibly know this because she did not check on him. In fact, she told investigators that she “thought” he was asleep “most of the time.” She nevertheless also conceded that the resident would wake up in the middle of the night and stay awake all night. IG Ex. 6 at 16.

The resident himself did not comment. The investigators could not interview him because of his disabilities. IG Ex. 6 at 12.

Petitioner also argues that her actions were justified because she was alone, without backup, and was afraid of being attacked. She claims that she reported her co-worker’s

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departure and characterizes herself as a “whistleblower.” In fact, Petitioner did not contact her supervisor until 8:23 p.m., more than two and a half hours after the employee left. In the meantime, her supervisor had performed a “supervisory video surveillance camera check” of the home and observed the co-worker’s absence. When the supervisor did not see the missing worker, she texted both employees. The employees did not respond, so she went to the home to investigate. IG Ex. 6 at 6, 10, 11, 14.

When she arrived at the home, the supervisor asked Petitioner where her co-worker was, and Petitioner falsely told her that he was in the resident’s room. This was obviously untrue since the chair was still wedged in the door. The supervisor reported the incident. IG Ex. 6 at 10.

Nor are these the only examples of Petitioner’s dissembling. When investigators asked, she denied signing the logs on the resident’s door. When they told her that she had been caught on video signing the logs, she admitted that she had done so without checking on the resident but justified her actions by claiming that she was afraid. IG Ex. 6 at 4-15.

In evaluating whether the length of an exclusion is reasonable, I must consider whether it serves Congressional goals of protecting federal healthcare programs and their beneficiaries from untrustworthy individuals and deterring healthcare fraud. Donald A. Burstein, Ph.D., DAB No. 1865 (2003). So long as the period of exclusion is within a reasonable range, based on demonstrated criteria, I have no authority to change it. Craig Richard Wilder, DAB No. 2416 at 8 (2011); Joann Fletcher Cash, DAB No. 1725 at 17 (2000) (citing 57 Fed. Reg. 3,298, 3,321 (Jan. 29, 1992)) (finding it appropriate to defer to the IG’s “broad discretion” in setting the length of an exclusion, “given the [IG’s] vast experience in implementing exclusions”).

Petitioner neglected a markedly vulnerable resident and tried to cover up the crime by falsifying documentation. When she was caught, she tried to justify her actions by making claims that were inconsistent and untrue. She has demonstrated that she is untrustworthy. An eight-year exclusion is well within a reasonable range.

Conclusion

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