Leona Riley, DAB CR6742 (2025)

DECISION

The Inspector General (IG) of the U.S. Department of Health and Human Services excluded Leona Riley (Petitioner) from participation in Medicare, Medicaid, and all other federal health care programs for the mandatory minimum period of 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 stated below, I conclude that the IG had a basis for excluding Petitioner from program participation, and that the five-year mandatory exclusion must be imposed.  Therefore, the IG’s exclusion determination is affirmed.

I. Background and Procedural History

By letter dated January 31, 2025, 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 State of Indiana, Porter County Superior Court, “related to

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the neglect or abuse of a patient, in connection with the delivery of a health care item or service.”  IG Exhibit (Ex.) 1.

The Civil Remedies Division (CRD) received Petitioner’s request for a hearing on February 22, 2025.  On February 25, 2025, the CRD issued my Standing Pre-Hearing Order (Standing Order) and an Acknowledgement Letter, acknowledging receipt of Petitioner’s hearing request and notifying the parties that a telephone prehearing conference was scheduled for March 18, 2025, at 11:30 a.m. EST.

At the prehearing conference, the parties agreed to a briefing schedule.  On March 19, 2025, an Order Following Prehearing Conference and Setting Briefing Schedule (March 19, 2025 Order) was issued, which memorialized the matters discussed at the prehearing conference.

On April 9, 2025, the IG filed a brief (IG Br.) along with four exhibits (IG Exs. 1-4).  Petitioner filed a brief (P. Br.) on June 2, 2025.  On June 24, 2025, the IG filed a reply brief (IG Reply Br.).

II. Admission of Exhibits and Decision on the Written Record

Absent objection, IG Exs. 1-4 are admitted into the record.

Both parties indicated that an in-person hearing is not necessary to resolve this matter.  IG Br. at 5; P. Br. at 3.  As stated in the March 19, 2025 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.  March 19, 2025 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. Issue

The issue to be decided is:

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));

If it is determined that the IG has a legal basis for excluding Petitioner, then the mandatory five-year exclusion must be imposed.

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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. At all times relevant to this case, Petitioner was employed at Dungarvin Group Home in Portage, Indiana.  Dungarvin Group Home provides support services to people with intellectual and developmental disabilities; people faced with mental health, behavioral or significant medical challenges; and to children and their families.  IG Ex. 3 at 3.
2. H.D. is one of four residents receiving support at the Dungarvin Group Home in Portage.  H.D. has several diagnoses including Major Depressive Disorder, Personality Disorder, mild intellectual disabilities, attention deficit/hyperactivity disorder (ADHD), and cerebral palsy.  IG Ex. 3 at 3.
3. On December 6, 2022, H.D. had a verbal and physical fight with another resident.  Staff members intervened, which allegedly led to a fight between Petitioner and H.D.  After a verbal exchange, a staff member allegedly observed a physical altercation between Petitioner and H.D.  Petitioner was heard saying that she wasn’t going to touch H.D., but that “bitch” hit her.  Petitioner also said, “I wish you would,” “I’ll beat your ass,” “I’ll split your shit,” and “I swear on my son.”  IG Ex. 3 at 4.  Petitioner was recorded saying, “if you don’t touch me, I wouldn’t touch you.”  IG Ex. 3 at 4.  H.D. admitted that she tried to punch Petitioner, which led to Petitioner punching her in the face approximately five times.  IG Ex. 3 at 4.  H.D. received medical attention and was diagnosed with a broken nose.  IG Ex. 3 at 5.
4. Petitioner verbally reported the incident to a supervisor but did not mention that there was a physical altercation.  Staff members are trained to calm or place residents in restraining holds but are not permitted to hit residents.  IG Ex. 3 at 5.
5. As a result of the incident with H.D., Petitioner was charged with one felony count of Battery; two counts of Intimidation; and Failure to Report Battery, Neglect or Exploitation of an Endangered Adult.  IG Ex. 3 at 1-2, 5.
6. On April 12, 2024, Petitioner pleaded guilty to one count of Intimidation, a Class-A Misdemeanor, in which she admitted,

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6. on or about December 6, 2022, in the County of Porter, State of Indiana, [Petitioner] did communicate a threat, with the intent that [H.D.] be placed in fear that the threat will be carried out, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.

IG Exs. 2, 3 at 1.

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).

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.

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

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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).

a. Petitioner was convicted of a criminal offense.

Under the Act, an individual is considered to have been convicted of a criminal offense 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,” or “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 April 12, 2024, the trial court accepted Petitioner’s guilty plea to one count of Intimidation, a Class-A misdemeanor in violation of Ind. Code § 35-45-2-1(a)(4).  IG Ex. 2.  Petitioner does not dispute that she was convicted of a criminal offense.  P. Br. at 1.  However, Petitioner disagrees with the underlying facts of the criminal conviction.  See P. Br at 1-2.

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

Petitioner argues that her conviction is not related to the abuse or neglect of a patient.  See P. Br at 1-2.  As stated, H.D. was diagnosed with numerous mental and physical disabilities and receives residential and support services at Dungarvin Group Home.  IG Ex. 3 at 3.  Therefore, I find that H.D. is a patient as defined by 42 C.F.R. § 1001.2, as the term “patient” is often used interchangeably with the word “resident.”

Section 1128 does not provide a definition for abuse.  When a word is undefined in the Act or regulations, Departmental Appeals Board (Board) decisions have utilized the common and ordinary meaning of the word.  Robert C. Hartnett, DAB No. 2740 at 9 n.7 (2016).  The regulations for skilled nursing facilities define abuse as “the willful

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infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.”  42 C.F.R. § 483.5.  Using the common definition of abuse also yields the same results, pertinent definitions of abuse include, “to treat in a harmful, injurious, or offensive way” and “to speak insultingly, harshly, and unjustly to or about.”  Abuse, Dictionary.com, https://www.dictionary.com/browse/abuse (last visited July 25, 2025).

Petitioner argues that she did not “put [her] hands on [H.D.]”  P. Br. at 2.  However, it is not necessary for me to determine whether Petitioner physically assaulted H.D.  Patient intimidation is a form of abuse, and it is undisputed that Petitioner has been convicted of intimidation.  Additionally, Petitioner admits to saying, “out of line things”, and that she was recorded saying “some bad things.”  P. Br. at 2.  It is these “bad things” that resulted in Petitioner being charged with, and ultimately pleading guilty, to intimidation.

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 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”); [Michael S.] Rudman[, M.D., DAB No. 2171,] at 9 [(2008)] (an ALJ may consider “evidence regarding the nature of the offense, rather than the state’s labeling of the admitted

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offense, to determine whether it involved conduct warranting exclusion”).

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

Based on Petitioner’s conviction for intimidation, the underlying facts of the case, and Petitioner’s admission, I find that Petitioner’s conviction was related to the abuse of a patient.

c. 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.  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.  Hartnett, DAB No. 2740 at 10 (citing Bruce Lindberg, D.C., DAB No. 1386 at 8 (1993)).  Petitioner’s conviction arose out of an incident that occurred while Petitioner was employed and working in her capacity as a staff member at Dungarvin Group home.  In addition, the incident involved H.D., a resident receiving support services at the group home.  There is a clear nexus between Petitioner’s conviction and the delivery of a health care item or service.  Accordingly, the evidence supports far more than a “minimal showing of a connection” between the offense and the delivery of a health care item or service.  Hartnett, DAB No. 2740 at 7 n.6.

2. Because 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.

Petitioner argues that this incident occurred in 2022, and this action should have been taken closer to the date of the incident.  P. Br. at 2.  However, Petitioner’s conviction did

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not take place until April 12, 2024.  See IG Ex. 2.  Additionally, I do not have the authority to alter the effective date of an exclusion.  Lisa Alice Gantt,DAB No. 2065 at 2-3 (2007); 42 C.F.R. § 1001.2002(b).

Lastly, Petitioner argues that because of this incident she is losing her job and her car which will result in her and her child being homeless.  P. Br. at 2.  While I understand Petitioner’s concerns and I am certainly sympathetic to the impact that this exclusion will have on Petitioner’s career and her family, I do not have the authority to provide equitable relief.  Letatia Norris, DAB No. 3135 at 15 (2024) (citing Yolanda Hamilton, M.D., DAB No. 3061 at 25 (2022)) (“[T]he Board has held that ALJs and the Board have no authority to give Petitioner equitable relief.”).

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.  Therefore, a five-year exclusion from participation in Medicare, Medicaid, and all other federal health care programs, effective twenty days from January 31, 2025, must be imposed.