Megan Nicole Crnarich, DAB CR6698 (2025)

DECISION

Petitioner, Megan Nicole Crnarich, was a registered nurse and the assistant director of nursing at a long-term care facility in Youngstown, Ohio.  Surveyors from the Ohio Department of Health (state agency) investigated the death of a facility resident who had been infested with lice.  In an attempt to deceive the state agency, Petitioner Crnarich created after-the-fact documentation in the resident’s medical records to show, falsely, that facility staff had provided the resident with appropriate care.  Petitioner was charged with falsification (Ohio Rev. Code § 2921.31A(3)); gross patient neglect (Ohio Rev. Code § 2903.34(A)(2)); and patient neglect (Ohio Rev. Code § 2903.34A(3)).  She pleaded guilty to two counts of obstructing official business (Ohio Rev. Code § 2921.31A).

Based on her 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)(2) of the Social Security Act (Act).  She appeals the exclusion.

Page 2

For the reasons discussed below, I find that the IG properly excluded Petitioner Crnarich.  Because the statute mandates a minimum five-year exclusion, the length of her exclusion is, by law, reasonable.

Background

In a letter dated December 31, 2024, the IG notified Petitioner that she was excluded from participating in Medicare, Medicaid, and all federal health care programs for a period of five 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 service.  The letter explained that section 1128(a)(2) of the Act authorizes the exclusion.  IG Ex. 1.

Petitioner timely requested review.

Exhibits.  Each party submitted a written argument (IG Br.; P. Br.).  The IG submitted five exhibits (IG Exs. 1-5).  Petitioner did not submit any additional exhibits.  The IG filed a reply brief (IG Reply).

Petitioner objects to my admitting IG Ex. 4.  IG Ex. 4 includes the criminal complaint and “Probable Cause Affidavit,” which describe the original charges, the investigation by the Ohio Attorney General’s Medicaid Fraud Control Unit, and the broader context in which Petitioner’s crime occurred.  Petitioner does not challenge the authenticity of these documents but argues that she did not plead guilty to the original charges and neither document is “proof of anything.”  P. Br. at 5.1  In fact, the “Probable Cause Affidavit” includes Petitioner’s own statements to the investigator, which are certainly relevant and admissible, even under the Federal Rules of Evidence.  See Rule 801(d)(2)(A).

Moreover, I admit evidence that is relevant and material, so long as it is not privileged or unduly prejudicial.  42 C.F.R. § 1005.17(c), (d), and (e).  I am not bound by the Rules of Evidence, although I may apply them in order to exclude unreliable evidence.  42 C.F.R. § 1005.17(b).  The challenged documents contain hearsay, but hearsay is generally admissible and “can be probative on the issue of the matter asserted, where sufficient indicia of reliability are present.”  Nancy L. Clark, DAB No. 2989 at 8 (2020), quoting Summit S. Shah, DAB No. 2836 at 5-6 (2017).

[E]vidence that is extrinsic to the criminal court process (regardless of whether or not the evidence or its content were

Page 3

presented at the grand jury, trial, plea or sentencing phases) is admissible to show that the conduct underlying the offense met the elements of the exclusion law.  However, such evidence is probative only if it is reliable and credible.

Shah at 5, quoted in Clark at 8.  I explain below why I find this evidence reliable.

Both of the documents are relevant and material.  Petitioner’s crimes did not happen in a vacuum, and the challenged documents provide the context within which she violated the law.  They directly address the question of how her crimes were related to the neglect or abuse of patients, in connection with the delivery of a health care item or service.  Petitioner was free to submit her own evidence or testimony countering the allegations and the statements from the state investigator that, in her view, went beyond the charges to which she pleaded guilty.  See Clark, DAB No. 2989 at 8.

I admit into evidence IG Exs. 1-5.

The parties agree that an in-person hearing is not necessary.  IG Br. at 6; P. Br. at 16.

Issue

The sole issue before me is whether the IG is authorized to exclude Petitioner from program participation.  42 C.F.R. § 1001.2007.

Discussion

1. Pursuant to section 1128(a)(2) of the Act, 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.2

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 patients, 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.

Page 4

Here, Petitioner Crnarich was a registered nurse and the assistant director of nursing at the Canfield Healthcare Center in Youngstown, Ohio.  IG Ex. 4 at 4; IG Ex. 5 at 1.  In that capacity, she supervised the clinical staff and was responsible for the well-being of facility residents.  IG Ex. 4 at 4.

A terminally-ill resident became infested with lice, yet the facility did not document her condition nor the treatment – if any – that staff provided.  IG Ex. 4 at 4; IG Ex. 5 at 5.  When Emergency Medical Services arrived at the facility at the time of the resident’s death, the EMTs (Emergency Medical Technicians) reported “deplorable conditions.”  The resident was “covered in bugs”; in fact, her hair “was moving due to the ‘significant lice infestation.’”  The EMTs called the police.  The coroner subsequently reported a “naturally appearing death” but noted “extremely soiled pillows and bedsheets, severe lice infestation,” and an open wound with puss on the resident’s right ear.  IG Ex. 5 at 4.

Facility staff did not document the lice infestation nor treatments staff provided (if any).  Petitioner later told the investigators from the state’s Medicaid Fraud Control Unit that the “regional nurse” (apparently a corporate employee) instructed her not to document the lice infestation on the day staff discovered it because, at the time, state agency surveyors were at the facility investigating an unrelated complaint.  The presence of lice was never documented in the resident’s progress notes; the problem was never addressed in the resident’s care plan.  Although Petitioner contacted the resident’s physician for a treatment order, no treatment was recorded in the Medication Administration Record.  Petitioner Crnarich told the fraud investigators:  “I never documented it[;] it seems like nothing was ever done and therefore other people couldn’t do their stuff accurately because I didn’t document it.”  IG Ex. 5 at 5; see P. Br. at 7.

Petitioner then conceded that the resident was neglected and told the investigators that “residents should not have been in the condition that [the resident] was in and that ‘it’s basically inhumane[;] they should be taken care of.’”  IG Ex. 5 at 7.

Petitioner has not denied making that statement.  See Beatrice State Development Ctr., DAB No. 2311 at 17, 18 (2010) (pointing out that that the facility could have but did not present employee testimony that refuted the statements the surveyors claimed they made); Omni Manor Nursing Home, DAB No. 1920 at 11 (2004) (holding that statements of facility employees to the surveyors may be admitted in an administrative proceeding and may constitute substantial evidence).

Following the resident’s death, the state agency sent a survey team to investigate.  In an attempt to deceive the surveyors, Petitioner wrote new statements and backdated information.  IG Ex. 5 at 8.  Petitioner told investigators that she wrote the backdated statements at the request of her superiors.  P. Br. at 4; IG Ex. 5 at 5-6 (“If I falsified something[,] it was probably at the directive of someone above me.”).

Page 5

On September 28, 2023, Petitioner was charged with:  one misdemeanor count of falsification, in violation of Ohio Rev. Code § 2921.13(A)(3) (knowingly making a false statement “with [the] purpose to mislead a public official in performing the public official’s official function”); one misdemeanor count of gross patient neglect, in violation of Ohio Rev. Code § 2903.34(A)(2) (committing “gross neglect” against a facility resident); and one misdemeanor count of patient neglect, in violation of Ohio Rev. Code § 2903.34(A)(3) (committing neglect against a facility resident).  IG Ex. 3 at 1-2; IG Ex. 4 at 1-2.

On October 4, 2024, Petitioner pleaded guilty to two misdemeanor counts of obstructing official business, in violation of Ohio Rev. Code § 2921.31A:

No person, without privilege to do so and with purpose to prevent, obstruct, or delay performance by a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.

The court sentenced Petitioner to ninety days in jail, suspended, and ordered her to pay fines of $500 and $100.  She was given two years of “reporting probation” and had to pay a $150 probation fee and complete 40 hours of community service.  IG Ex. 2.

While acknowledging that she was convicted of a criminal offense, Petitioner now argues that her conviction was not related to the neglect or abuse of a resident and that no patient neglect or abuse even occurred in connection with the delivery of a healthcare item or service.  P. Br. at 9-16.  She simply denies the facts underlying her conviction, claiming that they were never proven.  In Petitioner’s view, because she did not specifically admit to the facts underlying the charges against her, the IG has not established that her convictions were related to patient neglect or abuse.

But Petitioner offers no alternative explanations for her conduct.  She submits no evidence, not even her own written declaration, challenging the facts set forth in the complaint, the probable cause affidavit (IG Ex. 4), or the referral from the Ohio Attorney General’s office (IG Ex. 5).3

In Nancy L. Clark, the IG’s evidence included a memo from the Ohio Attorney General’s office similar to the one presented here.  The petitioner objected and submitted her own written declaration contradicting the IG’s evidence.  The Administrative Law Judge

Page 6

found the petitioner’s declaration “altogether implausible” and “not credible.”  Clark at 5.  In contrast, he determined that the IG document was reliable.  The memo was prepared by a prosecutor who had no stake in the outcome and was “sufficiently reliable to provide the underlying basis for Petitioner’s conviction.”  The Departmental Appeals Board affirmed.  Clark at 10, quoting DAB CR5483 at 7 (2019).

Similarly, here, the IG documents have the indicia of reliability.  The drafters are identified.  They were unbiased professionals and had no interest in the result.  Assuming she did not do so during the criminal proceedings, Petitioner could have obtained the documents cited in the IG’s exhibits – such as, the EMS report, the police report, and the coroner’s report – to verify the accuracy of the IG’s information.  Petitioner herself could have testified.  She did not do so; she presented no evidence to contradict the information included in the IG’s documents.  See Clark at 7, citing Florence Park Care Center, DAB No. 1931 at 10 (2004).

I also reject Petitioner’s suggestion that no patient neglect occurred.  To fulfill the purposes of section 1128(a)(2), neglect is broadly defined, applying the “common and ordinary meaning” of these “unambiguous terms.”  Robert C. Hartnett, DAB No. 2740 at 9 n.7 (2016).  “The common and ordinary meaning of the word ‘neglect’ is ‘to give little attention or respect to’ or ‘to leave undone or unattended to, especially through carelessness.’”  Id.4  As described above, the evidence establishes that the resident was unquestionably neglected.  She was infested with lice, had a serious ear infection, and was found in “deplorable conditions.”  IG Ex. 5 at 4.  Petitioner herself conceded that the resident’s treatment (or lack of treatment) was “basically inhumane.”  Id. at 7.  As the assistant director of nursing, Petitioner carried some responsibility for ensuring that she receive adequate care.

Even putting aside Petitioner’s personal responsibilities for the resident’s welfare, she falsified treatment records in order to cover up the resident’s condition and staff’s response, or lack of response.  Because accurate and precise documentation is critical for ensuring resident safety, her crimes were, in fact, related to patient neglect.  As Petitioner herself recognized, her illegal actions meant that staff and other professionals could not provide appropriate care (“do their stuff accurately.”)  IG Ex. 5 at 5; see 42 C.F.R. § 483.70(h) (requiring facilities to maintain records that are complete and accurate); Magnolia Estates Skilled Care, DAB No. 2228 at 15 n.7 (2009), quoting Sheridan Health Care Ctr., DAB No. 2178 at 33 (2008) (explaining that timely and accurate nursing notes are necessary to communicate significant resident care issues to aides, nurses, and other

Page 7

professionals who rely on the notes to make informed decisions about resident care; if the entries do not exist, it is difficult to determine if the resident needs additional care).

Thus Petitioner was convicted of criminal offenses related to the neglect of a patient in connection with the delivery of a health care item or service and must be excluded from program participation.  Act § 1128(a)(2).

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).

Conclusion

For these reasons, I conclude that the IG properly excluded Petitioner from participating in Medicare, Medicaid and all federal health care programs, and the length of the exclusion is, by law, reasonable.