Brittany Antoinette Boyce, DAB CR6743 (2025)

DECISION

The Inspector General (IG) of the U.S. Department of Health and Human Services excluded Brittany Antoinette Boyce (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 December 31, 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 her conviction of a criminal offense, in the Court of General Sessions, County of Spartanburg, State of South Carolina, “related to the neglect or abuse of a patient, in connection with the delivery of a health care item or service.”  IG Exhibit (Ex.) 1.  

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The Civil Remedies Division (CRD) received Petitioner’s timely request for a hearing on February 10, 2025.  On February 14, 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 11:00 a.m. EST. 

At the prehearing conference, the parties agreed to a briefing schedule.  After the prehearing conference, an Order Following Prehearing Conference and Setting Briefing Schedule (March 18, 2025 Order) was issued. 

On April 25, 2025, the IG filed a brief (IG Br.) along with six exhibits (IG Exs. 1-6).  Petitioner filed a brief (P. Br.) and one exhibit (P. Ex. 1) on June 6, 2025.  The IG filed a reply brief (IG Reply Br.) on June 20, 2025. 

II. Admission of Exhibits and Decision on the Written Record

Absent objection, IG Exs. 1-6 and P. Ex. 1 are admitted into the record. 

Both parties indicated that an in-person hearing is not necessary to resolve this matter.  IG Br. at 7; P. Br. at 5.  As stated in the March 18, 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 18, 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.  

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). 

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V. Findings of Fact

1. Petitioner was a Certified Nursing Assistant (CNA) at White Oak Estates, a skilled nursing facility located in Spartanburg, South Carolina.  IG Ex. 3.
2. On October 17, 2023, an arrest warrant was issued alleging that Petitioner intentionally inflicted physical injury on a vulnerable adult identified as “A.B.”, while working at White Oak Estates.  Petitioner was observed with her knee on top of A.B.’s leg, and A.B. was screaming, “she hit me all over”.  A.B. had bruising on her body and was transported to the hospital for medical treatment.  IG Ex. 3.  
3. On March 8, 2024, a Grand Jury in Spartanburg County, South Carolina indicted Petitioner on one count of Assault and Battery in the Third Degree, stating,

[t]hat on or about October 31, 2022, Brittany Antoinette Boyce did, in Spartanburg County, unlawfully injure another person (A.B.).  This is in violation of 16-3-600(E)(1) of the South Carolina Code of Laws, 1976 as amended. 

IG Ex. 2 at 2.  

4. On May 15, 2024, in the Court of General Sessions in Spartanburg County (trial court), Petitioner pleaded guilty to one count of Public Disorderly Conduct.  IG Ex. 4.  Petitioner was sentenced to six weeks of anger management.  IG Exs. 5, 6.
5. The conviction has since been expunged from Petitioner’s record.  P. Ex. 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

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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
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 May 15, 2024, the trial court accepted Petitioner’s guilty plea to one count of Public Disorderly Conduct, a misdemeanor in violation of South Carolina Code § 16-17-0530.  IG Ex. 4.  Petitioner does not dispute that she was convicted of a criminal offense.  P. Br. at 1.  However, Petitioner disputes that she was convicted of an offense that requires exclusion. 

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

Petitioner argues that her conviction is not related to the abuse or neglect of a patient because she pleaded guilty to disorderly conduct and the trial court marked the plea as a non-violent offense based on the recommendation of the State.  P. Br. at 3, 4. 

A “patient” is defined as “any individual who is receiving health care items or services, including any item or service provided to meet his or her physical, mental or emotional needs or well-being (including a resident receiving care in a facility as described in part 483 of this chapter), whether or not reimbursed under Medicare, Medicaid and any other Federal health care program and regardless of the location in which such item or service is provided.”  42 C.F.R. § 1001.2.  Here, A.B., the identified victim in the arrest warrant, was a vulnerable adult at a skilled nursing facility where Petitioner worked as  a CNA.  See IG Ex. 3.  I find that A.B. is considered a patient as defined in the regulation. 

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 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 yields the same result, as it is defined as, “to treat in a harmful, injurious, or offensive way”.1 

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

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

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

Here, the underlying facts which served as the basis of the indictment involve Petitioner assaulting a patient (A.B.) in a skilled nursing facility.  Petitioner argues that the plea to disorderly conduct is not related to assault, battery, abuse, or neglect related to patient care.  P. Br. at 4.  However, Petitioner’s plea to public disorderly conduct was the result of a plea bargain that arose out of the initial charge of assault and battery in the third degree, which occurs “if the person unlawfully injures another person, or offers or attempts to injure another person with the present ability to do so.”  South Carolina Code § 16-3-600(E)(1).  Despite indicating that Petitioner’s plea to public disorderly conduct was based on a non-violent offense, the trial court ordered Petitioner to attend six weeks of anger management classes.  IG Ex. 4.  In addition, the docket number on the indictment for the assault and battery third degree (2024-GS-42-0698) is the same as the indictment/case number on the sentencing sheet, again indicating that Petitioner’s plea to disorderly conduct arose out of the initial assault indictment.  Compare IG Ex. 2 with IG Ex. 4.  Based on the information before me, I find that the underlying basis for Petitioner’s conviction was directly related to the abuse of a patient in a skilled nursing facility.  

c. 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)

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(citing Bruce Lindberg, D.C., DAB No. 1386 at 8 (1993)).  It is undisputed that the incident in question occurred when Petitioner was employed as a CNA at White Oak Estates, a skilled nursing facility, and the victim was a patient at the facility.  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. 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 a/k/a Diane Marie Salak, DAB No. 3020 at 2 (2020); 42 C.F.R. § 1001.2007(a)(2).  Because the IG has imposed the mandatory minimum five-year exclusion, I do not have the authority to review whether the length of the exclusion is reasonable. 

Lastly, Petitioner notes that the disorderly conduct conviction has since been expunged from her record.  P. Br. at 5 (citing P. Ex. 1).  As noted by the regulations, an individual is considered “convicted” of a criminal offense when a judgment of conviction has been entered against the individual 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.  Act § 1128(i); 42 C.F.R. § 1001.2.  Despite Petitioner’s expungement, she was convicted of a criminal offense which mandates exclusion.  Therefore, a mandatory five-year exclusion must be imposed.  

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 December 31, 2024, must be imposed.