Sonja M. Grace, DAB CR6900 (2026)

DECISION

Petitioner, Sonja M. Grace, is excluded from participating in Medicare, Medicaid, and all other federal health care programs pursuant to section 1128(a)(2) of the Social Security Act (Act) (42 U.S.C. § 1320a-7(a)(2)), effective November 20, 2025.  Petitioner’s exclusion for the minimum period of five years is required by section 1128(c)(3)(B) of the Act (42 U.S.C. § 1320a-7(c)(3)(B)).1

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I.  Background

The Inspector General (IG) notified Petitioner by letter dated October 31, 2025, that she was excluded from participation in Medicare, Medicaid, and all other federal health care programs for five years.  The IG cited section 1128(a)(2) of the Act as authority for Petitioner’s exclusion based on her conviction, in the Youngstown Municipal Court, State of Ohio (municipal court), 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.  IG Exhibit (Ex.) 1.

On December 18, 2025, Petitioner timely filed a request for hearing (RFH) before an administrative law judge (ALJ).  This case was docketed and assigned to me on December 30, 2025.  A prehearing conference was convened on January 20, 2026.  The substance of the conference is memorialized in my Prehearing Conference Order and Schedule for Filing Briefs and Documentary Evidence (Prehearing Order) dated January 20, 2026.

The IG filed a motion for summary judgment with a supporting brief (IG Br.) and IG Exs. 1 through 3 on February 27, 2026.  On April 21, 2026, Petitioner filed a brief in opposition to the IG’s motion for summary judgment (P. Br.) with Petitioner’s exhibits (P. Exs.) 1 and 2.  The IG filed a reply brief (IG Reply) on May 5, 2026.  The parties have not objected to my consideration of IG Exs. 1 through 3 and P. Exs. 1 and 2, and all are admitted and considered as evidence.

II.  Discussion

A.  Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s right to a hearing by an ALJ and judicial review of the final action of the Secretary of Health and Human Services (the Secretary).

Pursuant to section 1128(a)(2) of the Act, the Secretary must exclude from participation in any federal health care program an individual convicted under federal or state law 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.  42 C.F.R. § 1001.101(b).

Pursuant to section 1128(i) of the Act (42 U.S.C. § 1320a-7(i)), an individual is 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, regardless of 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

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of guilty or no contest is accepted by a court; or (4) the individual has entered into any arrangement or program where judgment of conviction has been withheld.  42 C.F.R. § 1001.2.

Section 1128(c)(3)(B) of the Act provides that an exclusion imposed under section 1128(a) of the Act will be for a period of no fewer than five years.  42 C.F.R. § 1001.102(a).  The Secretary has published regulations that establish aggravating factors the IG may consider as grounds to extend the period of exclusion beyond the mandatory minimum period, as well as mitigating factors that may be considered only if the IG proposes to impose an exclusion longer than five years.  42 C.F.R. § 1001.102(b)-(c).

The standard of proof is a preponderance of the evidence.  42 C.F.R. § 1001.2007(c).  Petitioner bears the burden of proof, i.e., the burden of coming forward with the evidence and the burden of persuasion, on any affirmative defenses or mitigating factors, and the IG bears the burden on all other issues.  42 C.F.R. § 1005.15(c); Prehearing Order ¶ 4.  There may be no collateral attack of the conviction that is the basis for the exclusion.  42 C.F.R. § 1001.2007(d).

B.  Issues

The Secretary has by regulation limited my scope of review to two issues: 

Whether the IG has a basis for excluding an individual or entity from participating in Medicare, Medicaid, and all other federal health care programs; and

Whether the length of the proposed exclusion is unreasonable.

42 C.F.R. § 1001.2007(a)(1).  However, if the IG imposes the five-year minimum period of exclusion authorized for a mandatory exclusion under section 1128(a)(2) of the Act, then there is no issue of whether the period of exclusion is unreasonable.  42 C.F.R. § 1001.2007(a)(2).  The IG proposes to exclude Petitioner for five years, the minimum authorized period.  Therefore, the length of the exclusion is not at issue in this case.

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

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

1.  Petitioner’s request for hearing was timely and I have jurisdiction. 

There is no dispute that Petitioner timely requested a hearing and that I have jurisdiction pursuant to section 1128(f) of the Act and 42 C.F.R. pt. 1005.

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2.  Summary judgment is appropriate in this case.

Pursuant to section 1128(f) of the Act, a person subject to exclusion has the right to reasonable notice and an opportunity for a hearing.  The Secretary has provided by regulation that a sanctioned party has the right to a hearing before an ALJ, and both the sanctioned party and the IG have a right to participate in the hearing.  42 C.F.R. § 1005.2‑.3.  Either or both parties may choose to waive appearance at an oral hearing and to submit only documentary evidence and written argument for my consideration.  42 C.F.R. § 1005.6(b)(5).  An ALJ may also resolve a case, in whole or in part, by summary judgment.  42 C.F.R. § 1005.4(b)(12).

Summary judgment is appropriate in an exclusion case when there are no disputed issues of material fact and when the undisputed facts, clear and not subject to conflicting interpretation, demonstrate that one party is entitled to judgment as a matter of law.  Tanya A. Chuoke, R.N., DAB No. 1721 (2000); David A. Barrett, DAB No. 1461 (1994); Robert C. Greenwood, DAB No. 1423 (1993); Thelma Walley, DAB No. 1367 (1992); Catherine L. Dodd, R.N., DAB No. 1345 (1992); John W. Foderick, M.D., DAB No. 1125 (1990).  When the undisputed material facts of a case support summary judgment, there is no need for a full evidentiary hearing, and neither party has the right to one.  Surabhan Ratanasen, M.D., DAB No. 1138 (1990); Foderick, DAB No. 1125.  In opposing a properly supported motion for summary judgment, the nonmoving party must show that there are material facts that remain in dispute, and that those facts either affect the proponent’s prima facie case or might establish a defense.  Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 (1997).  It is insufficient for the nonmovant to rely upon mere allegations or denials to defeat the motion and proceed to a hearing.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

There are no genuine disputes of material facts in this case.  Petitioner was convicted by the municipal court.  The undisputed facts show that the offense of which Petitioner was convicted by the municipal court was related to the alleged neglect of a nursing home resident in connection with the delivery of a health care item or service.  The undisputed facts establish a basis for Petitioner’s exclusion pursuant to section 1128(a)(2) of the Act.  Petitioner’s defense that she was not convicted of an offense related to neglect or abuse in connection with the delivery of a health care item or service must be resolved against her as a matter of law.  The reasonableness of the period of exclusion is not at issue as the IG imposed the minimum period of five years as required by the Act.  I conclude that summary judgment in favor of the IG is appropriate.

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3.  Petitioner’s exclusion is required by section 1128(a)(2) of the Act.

a.  Facts

The parties were advised by the Prehearing Order, ¶ 8, that a fact alleged in briefing and not specifically denied, may be accepted as true for purposes of a motion or cross-motion for summary judgment.  The parties were also advised that any evidence is considered admissible and true unless specific objection is made to its admissibility and accuracy.

The material facts in this case are undisputed.  Petitioner does not deny that: 

A complaint was filed in the municipal court on September 28, 2023.  The complaint alleged in two counts that Petitioner on October 2, 3, 7, and 8, 2021, committed gross patient neglect, a first-degree misdemeanor; and patient neglect,2 a second-degree misdemeanor, in violation of an Ohio statute.  The charges allege that Petitioner failed to identify that Resident CG, for whom she was responsible, had a lice infestation and an ear wound.  The charges alleged Petitioner failed to document the lice infestation and ear wound and failed to deliver treatment.  IG Ex. 2.

On May 7, 2025, Petitioner agreed to plead guilty to an amended single count of obstructing official business, a second-degree misdemeanor in violation of an Ohio Rev. Code Ann. § 2921.31(A).3  IG Ex. 3 at 1, 3.

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On May 13, 2025, the municipal court accepted Petitioner’s guilty plea, found Petitioner guilty of the one count of obstructing official business, and sentenced Petitioner to pay a fine of $300, 90 days in jail which was suspended, and 18 months of reporting probation.  IG Ex. 3 at 2-3.

In her affidavit, Petitioner states that she was a registered nurse and floor nurse at Canfield Healthcare Center.  P. Ex. 1 at 2.  She states she was aware Resident CG was reported to have lice and that a physician had ordered lice shampoo treatment.  P. Ex. 1 at 2.  Petitioner states she was told that medicated lice treatment had been administered.  She states she was not told that she was responsible for administering any further lice treatment or that further treatment was necessary.  P. Ex. 1 at 2.  Her unit manager and nursing assistant assigned to the resident did not mention any concerns about active lice on October 7, 2021.  P. Ex. 1 at 2.  She states that on October 7, 2021, she could only perform a limited skin assessment of the resident who resisted care and she did not observe lice on areas she viewed, she observed no scratching by the resident, and the resident did not complain of skin irritation.  P. Ex. 1 at 2.  Petitioner denies knowing that the resident had an ear wound.  She denies knowingly failing to provide necessary care to Resident CG.  P. Ex. 1 at 2; P. Br.  I accept Petitioner’s statements as true for purposes of summary judgment.

Petitioner does not dispute that she was charged in the municipal court with two counts of neglect of Resident CG and that she pleaded guilty to and was convicted of obstructing official business.  P. Br. at 3.

b.  Analysis

Petitioner argues that the undisputed facts do not show that Petitioner’s conviction of obstructing official business was related to patient neglect.  P. Br. at 3-8.  Petitioner agrees that if there is a basis for exclusion, the five-year period of exclusion is not at issue.  P. Br. at 4.

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The IG cites section 1128(a)(2) of the Act as authority for Petitioner’s mandatory exclusion.  The statute provides: 

(a)  MANDATORY EXCLUSION. — The Secretary shall exclude the following individuals and entities from participation in any Federal health care program (as defined in section 1128B(f)): 

* * * *

(2)  Conviction relating to patient abuse. — Any 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.

Act § 1128(a)(2).  The plain language of section 1128(a)(2) of the Act requires that the Secretary exclude from participation in Medicare, Medicaid, and all other federal health care programs, any individual or entity:  (1) convicted of a criminal offense; (2) where the offense related to neglect or abuse of patients; and (3) where the offense is related to the delivery of a health care item or service.  Congress did not require a felony conviction.

Petitioner does not dispute that: she was charged with neglect of a patient; she pleaded guilty to the amended charge of obstructing official business in violation of Ohio Rev. Code Ann. § 2921.31; her plea was accepted by the state court; and the state court found her guilty of the charge.  P. Br. at 3-4; IG Ex. 3.  Petitioner was convicted of the criminal offense within the meaning of section 1128(i) of the Act and 42 C.F.R. § 1001.2 because her guilty plea was accepted by the municipal court and the municipal court found Petitioner guilty of the offense.  Therefore, the first element that triggers exclusion under section 1128(a)(2) of the Act is satisfied.

Petitioner argues that there is a genuine factual dispute as to whether the amended charge of obstructing official business is related to patient neglect.  P. Br. at 4.  Petitioner’s argument is resolved against her as a matter of law.  The undisputed facts establish a commonsense connection or nexus between Petitioner’s offense and the alleged neglect of Resident CG by failure to deliver health care services.

Appellate panels of the Departmental Appeals Board (the Board) have long held that the statutory terms describing an offense do not control whether that offense is “related to” the delivery of a health care item or service under Medicare or a state health care program for purposes of an exclusion pursuant to section 1128(a) of the Act.  Rather, an ALJ and the Board must determine whether there is a commonsense connection or nexus between

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the offense and the delivery of a health care item or service.  An ALJ and the Board consider evidence as to the nature of the offense and the facts that were the basis for the conviction.  Kimbrell Colburn, DAB No. 2683 at 5 (2016); Scott D. Augustine, DAB No. 2043 at 5-6 (2006); Berton Siegel, D.O., DAB No. 1467 at 6-7 (1994); Dewayne Franzen, DAB No. 1165 (1990).  An ALJ may also use extrinsic evidence to “[fill] in the circumstances surrounding the events which formed the basis for the offense of which Petitioner was convicted.”  Narendra M. Patel, M.D., DAB No. 1736 at 7 (2000), aff’d, Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 539 U.S. 959 (2003).  In Patel, the Board specifically rejected the position that all elements necessary for exclusion must be found in the record of the state criminal court.  Id. at 10.  The terms “related to” and “relating to” in section 1128(a) of the Act simply mean that there must be a nexus or commonsense connection.  Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotes omitted); Quayum v. U.S. Dep’t of Health & Hum. Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998).  Based on these prior Board decisions, it is necessary for me to consider not only the charge of which Petitioner was convicted and related court records, but also all the extrinsic evidence of record that shows the basis for the charge.  In deciding this case on summary judgment, I rely only upon the undisputed facts and draw all reasonable inferences in Petitioner’s favor.  I conclude that there is a nexus between Petitioner’s offense and alleged neglect of Resident CG.  I also conclude that Petitioner’s offense was in connection with the delivery of a health care service.

There is no dispute that Petitioner was not convicted of neglecting Resident CG by the municipal court.  Rather, Petitioner pleaded guilty to obstructing official business in violation of Ohio law.  IG Ex. 3.  By pleading guilty, Petitioner avoided trial on the neglect charges.  By pleading guilty, Petitioner avoided possible conviction of the neglect charges.  But by pleading guilty, Petitioner was also not acquitted of the neglect charges.  Had Petitioner been found not guilty, the IG would have no basis for mandatory exclusion.  I also note that there is no evidence in the record before me of the factual basis for the obstructing official business charge.

But section 1128(a)(2) of the Act does not require that one be convicted of an offense of neglect or abuse of a patient.  Section 1128(a)(2) of the Act requires simply that one be convicted of an offense related to abuse or neglect.  How close or tight the connection between the offense of which one is convicted, and the abuse or neglect of a patient must be, is not specified by the Act.  The federal courts have recognized that Congress intended that even a loose connection is sufficient to trigger exclusion under section 1128(a)(2) of the Act.  Friedman, 686 F.3d 813, 820; Quayum, 34 F. Supp. 2d 141, 143.

The connection or nexus between Petitioner’s offense and the delivery of a health care service is reflected by the undisputed facts that:  (1) Petitioner was charged with two

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counts of neglecting Resident CG; and (2) Petitioner avoided trial and a guilty or not guilty verdict by pleading guilty to another offense of obstructing official business for which there is no evidence of the factual basis.  I conclude that the undisputed facts establish a loose nexus between the offense of which Petitioner was connected and the alleged neglect of Resident CG by failure to deliver health care services, even though, the undisputed facts do not establish that Petitioner actually neglected Resident CG.

In Ohio, a complaint must be supported by probable cause to believe the alleged offense was committed.  Ohio Crim. R. 4(A)(1).  The Special Agent who investigated Petitioner’s alleged neglect of Resident CG filed with the municipal court a “Probable Cause Affidavit.”  CMS Ex. 2 at 3-5.  The Special Agent attested that based on her investigation she had probable cause to believe Petitioner neglected Resident CG.  The Special Agent did not attest that she believed it more likely than not, i.e., that a preponderance of the evidence showed, Petitioner neglected Resident CG.  Probable cause means one has reasonable grounds to suspect another has committed or is committing a crime.  Black’s Law Dictionary at 1239 (8th ed. 2004).  The preponderance of the evidence standard requires that the trier-of-fact believe that the existence of a fact is more probable than not before finding in favor of the party that had the burden to persuade the judge of the fact’s existence.  In re Winship, 397 U.S. 358, 371-72 (1970); Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993).

Some may be willing to read the Special Agent’s affidavit and find it establishes by a preponderance of the evidence that Petitioner neglected Resident CG.  I will not because the evidence shows that the Special Agent attested to having a reasonable belief, i.e., that there was probable cause, not that she believed it more likely than not that Petitioner neglected Resident CG.  I will not give an affiant’s statements more weight than the affiant intends.  If a hearing on the record was necessary, which I find it is not, the Special Agent would certainly be welcome to come and testify as to what she actually believed were the facts and the weight of the evidence.

The charge of obstruction of official business does not specifically allege that abuse of Resident CG occurred.  But Petitioner who was charged with neglecting Resident CG agreed to plead guilty to obstructing official business rather than being tried on whether she neglected Resident CG.  I conclude that there is a loose nexus between the allegations of abuse and the offense of which Petitioner was convicted, even though it was never decided Resident CG was neglected by anyone, including Petitioner.

There is no dispute that Petitioner was a registered nurse at the facility where Resident CG resided and Petitioner was responsible to care for Resident CG when the allegations of neglect occurred.  Therefore, the allegations of neglect, i.e., the allegation of the failure to deliver necessary care and services, is in connection with the delivery of or failure to deliver health care services.

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Accordingly, all elements that trigger exclusion under section 1128(a)(2) of the Act are satisfied and the IG had a basis for Petitioner’s exclusion.

4.  Section 1128(c)(3)(B) of the Act requires a minimum exclusion of five years for any exclusion pursuant to section 1128(a) of the Act. 

5.  Petitioner’s exclusion for five years is not unreasonable as a matter of law.

Congress established five years as the minimum period of exclusion for exclusions pursuant to section 1128(a) of the Act.  Act § 1128(c)(3)(B).  Pursuant to 42 C.F.R. § 1001.2007(a)(2), when the IG imposes an exclusion pursuant to section 1128(a) of the Act for the statutory minimum period of five years, there is no issue of whether the period is unreasonable.  Accordingly, I conclude that Petitioner’s exclusion for a period of five years is not unreasonable as a matter of law.  I have no authority to reduce the period of exclusion below the mandatory minimum of five years.  Act § 1128(c)(3)(B); 42 C.F.R. § 1001.102(a).

Petitioner’s arguments may be viewed as requests for equitable relief.  However, I have no authority to grant Petitioner any equitable relief.  Matthew J. Girardy, DMD, DAB No. 2987 at 7 (2020).  Congress required Petitioner’s exclusion pursuant to section 1128(a)(2) of the Act, the regulation establishes the effective date of a mandatory exclusion, and those requirements are binding upon me.  I am bound to follow the Act and the Secretary’s regulations.  42 C.F.R. § 1005.4(c)(1).

Exclusion is effective 20 days from the date of the IG’s written notice of exclusion to the affected individual or entity.  42 C.F.R. § 1001.2002(b).

III.  Conclusion

For the foregoing reasons, Petitioner is excluded from participation in Medicare, Medicaid, and all federal health care programs for five years pursuant to section 1128(a)(2) of the Act, effective November 20, 2025.