Riadel H. Manzano, DAB CR6772 (2025)

DECISION

Respondent, the Acting Inspector General for the United States Department of Health and Human Services (the IG), excluded Petitioner, Riadel H. Manzano, from participation in Medicare, Medicaid, and all other federal health care programs for five years based on her conviction of a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service.  Petitioner challenges the IG’s exclusion action.  For the reasons stated below, I affirm the IG’s exclusion determination.

I. Procedural History

By letter dated October 31, 2024, the IG notified Petitioner of her exclusion from participation in Medicare, Medicaid, and all other federal health programs under section 1128(a)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)) for at least five years.  IG Ex. 1 at 1.  The IG explained she took this action based on Petitioner’s conviction in the Nassau County Court of New York (state court) for a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service.  Id. 

Page 2

Petitioner timely sought review by an Administrative Law Judge (ALJ) in the Civil Remedies Division, resulting in my designation to hear and decide this case.  I held a pre-hearing conference by telephone with the parties on January 28, 2025, the substance of which is summarized in my January 30, 2025 Order Summarizing Pre-hearing Conference and Setting Briefing Schedule (Summary Order).  See 42 C.F.R. § 1005.6. 

I directed the parties to file pre-hearing briefs and identify witnesses and exhibits in support of their arguments.  Summary Order at 5.  Because Petitioner’s counsel had informed me during the pre-hearing conference that he might wish to make discovery requests of the IG, I included a deadline to do so.  Id.  On February 28, 2025, the IG filed a brief (IG Br.) and eight proposed exhibits (IG Exs. 1-8). 

On April 4, 2025, Petitioner filed notice she sought discovery from the IG.  P. Discovery Req.  On May 5, 2025, the IG filed a Motion for Protective Order to preclude production in response in part or in whole to Petitioner’s production requests.  I afforded Petitioner the opportunity to respond to the IG’s motion; she declined to do so on June 3, 2025.  On June 5, 2025, I issued an order granting the IG’s motion, finding Petitioner had withdrawn her requests for production by declining to respond to the IG’s motion.  On July 11, 2025, Petitioner filed a brief (P. Br.) and 12 proposed exhibits (P. Exs. 1-12).  The IG subsequently filed a reply brief (IG Reply). 

II. Admission of Exhibits and Decision on the Record

Petitioner makes no objection to the IG’s exhibits.  I therefore enter IG Exhibits 1 through 8 into the record.  The IG objects to Petitioner Exhibits 1, 2, 5, 8, and 12, arguing they should be excluded on relevance and other grounds.  IG Reply at 8-10.  I overrule the IG’s objections.  Even where Petitioner attempts to rely on these documents to make arguments that I cannot consider, they are still relevant for the limited purpose of establishing the unusual procedural history of this case.  Their inclusion in the record is also necessary to establish a basis for the weight I give to Petitioner’s arguments.  I therefore enter Petitioner Exhibits 1 through 12 into the record.  

Having identified herself as a witness and submitted her testimony as a proposed exhibit, Petitioner requests an in-person hearing.  P. Br. at 11; P. Ex. 2.  However, the IG has not requested the opportunity to cross-examine her.  See IG Reply.  Accordingly, I decide this case on the briefs submitted by the parties and the exhibits of record.  Civ. Remedies Div. P. § 19(d); Standing Order at 5.  

III. Issue

Whether the IG had a basis to exclude Petitioner from participating in Medicare, Medicaid, and all other federal health care programs for the minimum statutory period of five years under 42 U.S.C. § 1320a-7(a)(2).  See 42 C.F.R. § 1001.2007(a)(1).  

Page 3

IV. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) provides Petitioner with rights to an ALJ hearing and judicial review of the final action of the Secretary of Health and Human Services (Secretary).  The right to a hearing before an ALJ is set forth in 42 C.F.R. §§ 1001.2007(a) and 1005.2.  The rights of both the sanctioned party and the IG to participate in a hearing are specified by 42 C.F.R. § 1005.3. 

The Act requires the Secretary to exclude from participation in federal health care programs “[a]ny individual or entity that 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.”  42 U.S.C. § 1320a-7(a)(2); see also 42 C.F.R. § 1001.101(b). 

The Act defines an individual to be convicted of a criminal offense when:  (1) a judgment of conviction has been entered against him or her in a federal, state, or local court whether an appeal is pending or the record of the conviction is expunged; (2) there is a finding of guilt by a court; (3) a plea of guilty or nolo contendere is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction is withheld.  Act § 1128(i) (42 U.S.C. § 1320a-7(i)); 42 C.F.R. § 1001.2.  Exclusion under this provision of the Act is mandatory and does not distinguish between misdemeanor and felony convictions.  Act § 1128(a)(2) (42 U.S.C. § 1320a-7(a)(2)).  Excluded parties seeking to challenge their exclusion may not collaterally attack the conviction upon which exclusion is based.  42 C.F.R. § 1001.2007(d). 

For exclusions imposed under section 1128(a) of the Act, section 1128(c)(3)(B) (42 U.S.C. § 1320a-7(c)(3)(B)) mandates a minimum five-year period of exclusion.  Exclusion is effective 20 days from the date the IG issues the notice of exclusion.  42 C.F.R. § 1001.2002(b).  The IG may elect to extend the period of exclusion based on the presence of certain aggravating factors.  42 C.F.R. § 1001.102(b).  If the IG has applied aggravating factors to increase the exclusion period beyond five years, she must consider the mitigating factors identified by the regulations as a basis for reducing the period of exclusion.  42 C.F.R. § 1001.102(c).  The IG’s determination of the length of exclusion enjoys deference only if it is not unreasonable.  42 C.F.R. § 1001.2007(a)(1)(ii). 

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof and the burden of persuasion on any affirmative defenses or mitigating factors; the IG bears the burden on all other issues.  42 C.F.R. §§ 1001.2007(e), 1005.15(b).  

Page 4

V. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.  

A. The IG has established a basis for Petitioner’s exclusion pursuant to section 1128(a)(2) of the Act.  

Section 1128(a)(2) of the Act mandates exclusion from participation in Medicare, Medicaid, and all federal health care programs where an 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.  42 U.S.C. § 1320a-7(a)(2); 42 C.F.R. § 1001.101(b).  The IG has established these elements by a preponderance of the evidence. 

1. Relevant Facts

On March 22, 2016, a New York state grand jury indicted Petitioner on one count of Offering a False Instrument for Filing in the First Degree, in violation of N.Y. Penal Law § 175.35, and one count of Tampering with Physical Evidence, in violation of N.Y. Penal Law § 215.40(1)(a)), both felonies.  IG Ex. 2 at 11; IG Ex. 4 at 1.  The grand jury found Petitioner, a registered nurse, knowingly offered a false statement with the intent to defraud the state by offering it to be filed as part of a public record.  IG Ex. 4 at 2. 

The grand jury specified that in June 2012, New York Department of Health Surveyor Edward McGarry conducted an investigation at Woodmere Rehabilitation and Health Care Center, where Petitioner worked as the director of nursing.  Id. at 3.  Surveyor McGarry reviewed records for a resident, W.O., whose physician ordered facility nurses to check the resident every 30 minutes and document those checks on a “Thirty Minute Frequent Check” form.  IG Ex. 4 at 3; P. Br. at 7.  W.O.’s physician initiated this measure starting June 1, 2012, after the resident was found on the floor beside his bed on May 29, 2012.  IG Ex. 2 at 14.  Despite this order for enhanced monitoring, W.O. was discovered on the floor three days in a row beginning June 4, 2012, each time resulting in his transportation to the hospital.  Id. at 14-15. 

After the last fall, W.O.’s family filed a complaint with the New York Department of Health, resulting in Surveyor McGarry’s investigation.  Id. at 15.  On or about June 7, 2012, Petitioner presented Surveyor McGarry a record of 30-minute checks of W.O. that purportedly took place from June 4 to June 5, 2012.  IG Ex. 2 at 15-16; IG Ex. 4 at 2-3; P. Br. at 7.  The grand jury accused Petitioner of doing so knowing the record contained false entries, knowing it would be filed with the New York Department of Health and made a public record, and knowing it would be used in an official proceeding.  IG Ex. 4 at 2-3.  

Page 5

After a jury trial, the state court entered judgment of conviction against Petitioner for the felony charge of offering a false instrument for filing on January 25, 2017.  IG Ex. 5.  The state court sentenced Petitioner to three years’ conditional discharge on August 15, 2017.  Id.  On November 30, 2018, the IG notified Petitioner of her exclusion under section 1128(a)(2) of the Act for at least five years based on this conviction.  IG Ex. 6. 

On January 4, 2022, a New York appellate court, having heard Petitioner’s appeal of her criminal conviction, reversed the state court’s judgment and ordered a new trial because the state court had not meaningfully responded to a question posed by the jury during deliberations.  IG Ex. 7.  On March 8, 2022, the IG notified Petitioner her exclusion had been withdrawn retroactively to December 20, 2018, the effective date of the initial notice of exclusion.  IG Ex. 8 at 1.  

To avoid the expense and uncertainties of a second trial and resolve the charges against her without a criminal record, Petitioner entered into a plea agreement with the state on December 19, 2023.  IG Ex. 2; P. Br. at 3.  Petitioner agreed to plead to the lesser included misdemeanor charge of offering a false instrument as well as to one count of disorderly conduct, a “violation” under section 240.20(7) of New York’s Penal Law.  IG Ex. 2 at 3.  In exchange, New York agreed to dismiss the felony charges against Petitioner.  Id.  State prosecutors further agreed that after three months, if Petitioner was not rearrested, the state court would vacate Petitioner’s misdemeanor plea and sentence her to conditional discharge for the disorderly conduct violation.  Id.  

On March 20, 2024, the state court concluded Petitioner had met the terms of the plea agreement and therefore vacated her plea to misdemeanor charge against her.  IG Ex. 3 at 3.  The state court noted Petitioner stood convicted for the violation of disorderly conduct and sentenced her to conditional discharge and fees in the amount of $120.  Id.

2. Petitioner was convicted under Federal or State law of a criminal offense within the meaning of the Act. 

Petitioner argues her exclusion is improper because neither the misdemeanor offense of offering a false instrument for filing nor the disorderly conduct violation for which she was sentenced amounted to criminal offenses.  P. Br. at 3-4.  Concerning the former charge, she concedes entering a plea but points out the state court subsequently vacated it.  Id. at 3, citing P. Ex. 11.  She argues the court’s action precludes finding her plea amounted to a conviction within the meaning of the Act.  See id. at 4-5.  While I find Petitioner’s argument persuasive, the Board has expressly rejected this position.  See Esohe Agbonkpolor, DAB No. 3002 at 6 (2020) (“[W]e reject Petitioner’s suggestion that “vacating” her guilty plea nullifies her “conviction” under the Act.”); Funmilola Mary

Page 6

Taiwo, DAB No. 2995 at 6 (2020) (for purposes of exclusion, finding “no substantive difference” between a “vacated” guilty plea and an “expunged” conviction).1 

As to the latter charge, Petitioner contends her conviction for a disorderly conduct violation does not fall within the meaning of the Act because New York does not consider violations to be criminal offenses.  Id. at 4.  Her position is ultimately incorrect.  
ALJs, including myself, have roundly rejected this argument.2  See Carol A. Timpano, DAB CR5606 (2020); Yamilet Martinez, DAB CR5238 (2019); Tara Lyn Justin, DAB CR4689 (2016); Natalie Galbo, R.N., DAB CR4347 (2015).  It is true that New York’s penal code uniquely defines violations as non-criminal offenses, as opposed to misdemeanors and felonies.  N.Y. Penal Code § 10.00(6).  But the Act’s definition of convictions subject to exclusion supersedes the vagaries of 50 states’ worth of penal codes.  New York’s characterization of Petitioner’s offense of conviction as non-criminal is therefore not dispositive. 

Congress did not opt to rely on states’ identification of grades or categories of criminal offense to define convictions.  It instead fixed the definition to certain outcomes from a criminal charge, namely, a judgment of conviction, a finding of guilt, an entry of a guilty plea or nolo contendere, or participation in an arrangement that would result in withholding of judgment of conviction.  42 U.S.C. §  320a-7(i)(1)-(4); Carolyn Westin, DAB No. 1381 (1993) (discussing Congressional intent to broadly define convictions for purposes of exclusion).  

Applied here, Petitioner’s violation conviction is a criminal offense within the meaning of the Act both because Petitioner pleaded guilty to a lesser offense to resolve a pending felony charge against her and because the state court ultimately entered judgment of

Page 7

conviction against her on that charge.  IG Ex. 2 at 3; IG Ex. 3 at 2-3; see 42 U.S.C. §§ 1320a-7(i)(2) (an individual is considered convicted “when a judgment of conviction has been entered against the individual”), 1320a-7(i)(3) (an individual is considered convicted “when a plea of guilty or nolo contendere by the individual . . . has been accepted by a Federal, State, or local court.”); 42 C.F.R. § 1001.2 (defining “convicted” for purposes of exclusion to include entry of judgment against an individual or acceptance by a court of an individual’s guilty plea).3   Petitioner’s claim that she was not subject to conviction as that term is defined by the Act is incorrect.  I must conclude Petitioner was “convicted” of a crime within the meaning of the Act.  

3. Petitioner’s offense of conviction related to neglect or abuse of patients. 

Petitioner asserts her disorderly conduct violation conviction did not relate to the neglect or abuse of patients because she played no role in creating the false report she delivered to the surveyor and had no knowledge it was falsified.  P. Br. at 8-9.  The IG argues Petitioner’s submission of a false record generated by the nurses she supervised was sufficiently related to the neglect of W.O. to warrant exclusion.  IG Br. at 4-5. 

In making this determination, I must look beyond the offense of conviction to the facts underlying it to determine whether that offense related to patient abuse or neglect.  See Bruce Lindberg, D.C., DAB No. 1280 (1991) at 4.  Considering the totality of the underlying criminal record, I need only determine whether there is “a common sense nexus between the underlying offense and potential or actual harm to the health and well-being of a patient in the course of health care delivery.”  Robert C. Hartnett, DAB No. 2740 at 7 (2016) (emphasis in original). 

Doing so, I conclude Petitioner’s offense in fact related to patient abuse or neglect4  within the meaning of section 1128(a)(2) of the Act.  As part of her plea colloquy, Petitioner admitted she bore responsibility as Woodmere’s director of nursing to supervise the facility’s employees and ensure its residents received necessary care and services.  IG Ex. 2 at 13.  She acknowledged W.O. was an at-risk resident who suffered three falls in three days that resulted in his hospitalization, despite a physician’s order for regular monitoring by facility staff to ensure his safety.  Id. at 13-15.  Critically,

Page 8

Petitioner admitted she gave the 30-minute monitoring record for W.O. to Surveyor McGarry and knew it was false.  Id. at 15-16.  She specifically admitted she knew it was false because the nurse who signed it could not have known the information necessary to complete the record because she had not worked the days or shifts that the record covered.  Id. at 16.  

Petitioner now claims she did not know the report was falsified at the time she provided it to the surveyor.  P. Br. at 7-8.  It is true that during the plea colloquy, the prosecutor did not extract an exact admission from Petitioner that she knew the document was false at the time she submitted it to the surveyor.  IG Ex. 2 at 16.  But it is difficult to conclude otherwise, since Petitioner acknowledged in her next answer that the record was patently false because the nurse who certified it could not have known the information was accurate, given her work schedule and the period covered in the record.  IG Ex. 2 at 16; see also P. Ex. 5 at 47-48 (the judge in Petitioner’s first case observing “[t]he only thing the jury found [Petitioner] guilty of was taking an altered document and giving it knowingly to the Inspector.”). 

Even if I fully credit Petitioner’s assertion that she did not know the report was false at the time she provided it to the surveyor, it does not mean her criminal offense was unrelated to the abuse and neglect of Resident 1.  As director of nursing, Petitioner did not directly provide negligent care to W.O., but her provision of an altered document to the surveyor related to the negligent care her employees provided to that resident.  If it had passed muster, the report would have aided Petitioner’s negligent staff to evade responsibility for their negligence and thus expose W.O. and other residents to similar lack of care. 

Petitioner’s offense conduct – the provision of a false report about the monitoring W.O. received – related to the neglect of W.O. even if she did now know it was false at the time she provided it.  Petitioner did not directly neglect W.O.  But her failure to hold her staff accountable and her submission of falsified documents to the regulating state agency, even if inadvertent, created a risk of harm to every resident at Woodmere.  These facts, taken together, establish the relatedness of Petitioner’s criminal offense conduct to abuse or neglect within the meaning of section 1128(a)(2) of the Act.  

4. Petitioner’s offense of conviction occurred in connection with the delivery of a health care item or service. 

Petitioner argues her offense of conviction did not occur in connection to the delivery of a health care item or service because her role as director of nursing was too attenuated to establish the requisite connection with the negligent care W.O. received from Petitioner’s subordinates.  P. Br. at 10-11.  The IG argues that while Petitioner did not directly neglect W.O., her presentation of a false record to the surveyor related to the negligent care delivered to the resident.  IG Br. at 5-6.  

Page 9

The IG is correct.  Petitioner may not have directly provided care to W.O. but the false document she submitted to the state agency surveyor was necessarily created in connection with the delivery of health care to W.O.  I conclude Petitioner’s offense of conviction took place in connection with the delivery of a health care item or service within the meaning of Section 1128(a)(2) of the Act. 

B. The IG was required to exclude Petitioner under the Act’s mandatory exclusion authority. 

Petitioner next argues the IG should have considered exercising her permissive exclusion authority under section 1128(b)(1)(A) of the Act.  P. Br. at 12.  But as the IG correctly observed, the IG has no discretion to apply permissive exclusion where the Act demands mandatory exclusion.  IG Reply at 7; see Gregory J. Salko, M.D., DAB No. 2437 at 4 (2012), quoting Timothy Wayne Hensley, DAB No. 2044 (2006) (“[I]f an offense falls under the mandatory exclusion statute, ‘courts have repeatedly held that the I.G. is then required to impose a mandatory exclusion even if an individual’s conduct also falls within the scope of a permissive exclusion provision.’”).  The IG has established these elements here, meaning Petitioner must be excluded under the Act’s mandatory exclusion authority.  The IG had no discretion to do otherwise. 

C. Petitioner must be excluded for a minimum of five years; the period of exclusion is therefore reasonable as a matter of law. 

For the foregoing reasons, I conclude a basis exists to exclude Petitioner under 42 U.S.C. § 1320a-7(a)(2).  Petitioner must be excluded for a minimum period of five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. §§ 1001.102(a), 1001.2007(a)(2).  Neither I nor the IG have the discretion to impose a lesser period of exclusion. 

D. I have no authority to shorten Petitioner’s exclusion. 

Petitioner finally argues she should receive credit for the time she was excluded before the appellate court vacated her conviction against her present exclusion period.  P. Br. at 12-13.  Petitioner observes that while the IG claims to have excluded her for the statutory five-year minimum period, she will in fact be excluded for over eight years.  Id. at 13.  Petitioner argues the IG has not established aggravating factors to justify increasing her exclusion period beyond five years.  Id. 

The IG responds she withdrew Petitioner’s initial exclusion when the appellate court reversed the conviction and “retroactively reinstated” her to the date she was first excluded.  IG Reply at 7; see 42 C.F.R. § 1001.3005(a)(1).  The IG explains she can only give credit for time excluded prior to a retroactive reinstatement “where the action that resulted in the retroactive reinstatement is subsequently overturned.”  Id., citing 42 C.F.R. § 1001.3005(e).  Because that action – the appellate court’s reversal of judgment and

Page 10

remand for a new trial – was not overturned, the IG claims Petitioner cannot receive credit for her earlier period of exclusion and that she has no discretion to shorten the new five-year exclusion period on that basis.  Id. at 7-8. 

The equities favor Petitioner’s position.  First, the notion of “retroactive reinstatement” is specious.  As Petitioner correctly observes, an excluded individual gains no discernible benefit from this so-called remedy.  See P. Ex. 2 at ¶ 61.  Second, the regulation cited by the IG credits a prior exclusion period to a re-excluded individual only where the action that resulted in reinstatement – in this case, reversal by the appellate court – is “subsequently overturned.”  42 C.F.R. § 1001.3005(e).  But if an appellate court reverses a conviction and orders a new trial, as here, there is virtually no circumstance where that action could be “subsequently overturned.” 

This limitation effectively punishes excluded individuals who exercise their constitutional right to appeal their criminal convictions and win a new trial.  Demonstrating an error that persuades an appellate court to order a new trial has the perverse result of ensuring the excluded individual loses credit for any previous period of exclusion.  Petitioner may have arguably been better off simply accepting her initial conviction.  Had she done so, she would have been eligible for reinstatement two years ago.  By framing the illusory notion of retroactive reinstatement as a benefit and refusing to credit a prior period of exclusion to those who win a new trial in appellate court, the IG’s regulations appear arbitrary and capricious. 

Unfortunately, I am precluded by the Act and the Secretary’s regulations from modifying Petitioner’s exclusion period to account for the three years she has already been excluded.  Shaikh M. Hasan, M.D., DAB No. 2648 at 8 (2015); Thomas Edward Musial, DAB No. 1991 (2005) (citing Douglas Schram, R.PH., DAB No. 1372 at 11 (1992) (“Neither the ALJ nor this Board may change the beginning date of Petitioner’s Exclusion.”).  

But I am not convinced the IG is equally hobbled, as she claims before me.  IG Reply at 8.  For providing a state surveyor a report altered by her subordinates in 2012 concerning instances of neglect in which she did not directly participate, conduct the state of New York ultimately did not deem to be criminal in nature, Petitioner is somehow, in the year 2025, restarting a five-year exclusion period the IG first imposed in 2018.  I encourage the IG to consider applying Petitioner’s prior period of exclusion to reduce the current one – and more broadly, to revise her regulations to prevent an outcome an observer could reasonably characterize as absurd. 

VI. Conclusion

For the foregoing reasons, I affirm the IG’s determination to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs for five years

Page 11

pursuant to section 1128(a)(2) of the Act (42 U.S.C. § 1320a-7(a)(2)), as of the effective date of exclusion provided in the IG’s most recent notice to her.