Nicolette L. Soderberg, DAB CR6950 (2026)

DECISION

Respondent, the Inspector General for the United States Department of Health and Human Services (the IG), excluded Petitioner, Nicolette L. Soderberg, 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 her exclusion.  For the reasons stated below, I affirm the IG’s exclusion action. 

I.  Procedural History

By letter dated July 31, 2025, 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) for at least five years.  IG Ex. 1 at 1; 42 U.S.C. § 1320a-7(a)(2).  The IG explained he took this action based on Petitioner’s conviction in the Clermont County Municipal Court of Ohio for a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service.  Id. 

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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 November 5, 2025, the substance of which is summarized in my November 10, 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 4.  On December 19, 2025, the IG filed a brief (IG Br.) and ten proposed exhibits (IG Exs. 1-10).  On February 20, 2026, Petitioner filed a brief (P. Br.), four proposed exhibits (P. Exs. 1-4), and objections to the IG’s exhibits (P. Obj.).  The IG subsequently filed a reply brief and a response to Petitioner’s objections (IG Resp.). 

On April 28, 2026, I ordered Petitioner to file written declarations for the two witnesses she identified in her pre-hearing exchange, herself and Scott Rubenstein.  Petitioner timely filed these declarations as proposed exhibits on May 13, 2026 (P. Exs. 5-6).  On May 28, 2026, the IG filed an amended reply brief (IG Reply). 

II.  Admission of Exhibits

Petitioner objects to IG Exhibit 3, an affidavit by Special Agent Deborah Gearhiser, an investigator for Ohio’s Medicaid fraud unit, that accuses Petitioner of criminal conduct.  P. Obj. at 3.  Petitioner asserts the agent’s allegations were not accepted by the state court and do not appear to have been made part of Petitioner’s criminal case, making the affidavit irrelevant for consideration here.  Id. at 3-4.  The IG points out that Special Agent Gearhiser’s affidavit bears the same caption and case number as the documents corresponding to Petitioner’s actual offense of conviction and otherwise bears sufficient indicia of reliability to warrant admission, namely that it is signed and stamped as filed by the clerk of the court on the same date as Petitioner’s criminal case.  IG Resp. at 3. 

The characteristics identified by the IG demonstrate Special Agent Gearhiser’s affidavit is sufficiently related to Petitioner’s criminal offense to warrant admission.  The remainder of Petitioner’s argument, and the IG’s responses, go to the weight I should give the affidavit, not its admissibility.  Petitioner’s objection to IG Ex. 3 is overruled. 

Petitioner next objects to IG Exhibits 4, 5, and 6 as lacking evidentiary value.  P. Obj. at 4-5.  Petitioner asserts what she describes as two internal memoranda and a press release are one-sided accounts that were not subject to outside scrutiny or cross-examination and not formally part of the record in Petitioner’s criminal case.  Id.  The IG responds that there is no requirement that evidence be part of the underlying criminal proceeding or subject to cross-examination to be deemed admissible.  IG Resp. at 4. 

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Petitioner’s arguments go to the weight I should give these exhibits, not their admissibility in these proceedings.  Petitioner’s objections to IG Exhibits 4, 5, and 6 are overruled. 

Petitioner finally objects to IG Exhibit 7, a “Probable Cause Checklist” that sets forth elements necessary to make a probable cause finding.  P. Obj. at 5-6; IG Ex. 7.  There is no signature by a judicial officer on this document; instead, each element is initialed as having been met by an “RN,” which corresponds to the name of the clerk or deputy clerk who initialed and dated it, “R Noonan.”  IG Ex. 7 at 1.  Petitioner challenges the relevance of this document claiming it bears no relation to her offense of conviction, contains no facts or allegations, and at best amounts to a belief that a crime has been committed, not proof that could establish guilt beyond a reasonable doubt.  P. Obj. at 5-6. 

The IG responds this document bears sufficient indicia of reliability for admission, pointing out the checklist bears the same case caption and docket number as Petitioner’s criminal proceeding, references the same charges as the affidavit, and bears the signature and stamp of the clerk of court made the same date the affidavit was filed.  IG Resp. at 4.  The IG is correct.  Whatever its probative value, which the parties are free to argue, the checklist is sufficiently related on its face to Petitioner’s criminal proceeding to be deemed relevant and therefore admissible.  Petitioner’s objection to IG Exhibit 7 is overruled. 

The IG did not object to Petitioner’s proposed exhibits.  I therefore enter IG Exhibits 1 through 10 and Petitioner Exhibits 1 through 6 into the record. 

III.  Decision on the Record

The IG does not believe an in-person hearing is necessary in this matter.  IG Br. at 8.  Petitioner requests an in-person hearing.  P. Br. at 11.  Petitioner identified herself and Scott Rubenstein as witnesses and submitted testimony for both as written declarations.  See P. Exs. 5-6.  However, the IG has not requested the opportunity to cross-examine her or Mr. Rubenstein.  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. 

IV.  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). 

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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.  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.  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, 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, he must consider the mitigating factors recognized by the regulations as a basis to reduce the period of exclusion.  42 C.F.R. § 1001.102(c).  The IG’s determination of the length of exclusion enjoys deference unless it is 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). 

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V.  Jurisdiction

I have jurisdiction to hear and decide this case.  See 42 C.F.R. §§ 1001.2007(a)(1)-(2), 1005.2(a); see also 42 U.S.C. § 1320a-7(f)(1). 

VI.  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 requires the Secretary to exclude from participation in Medicare, Medicaid, and all federal health care programs an individual or entity 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

At times relevant here, Petitioner, a licensed state-tested nurse aide (STNA), worked as a caregiver at Otterbein Loveland, a nursing facility.  IG Ex. 3 at 1; IG Ex. 4 at 1; IG Ex. 6 at 2.  As part of her duties, she provided care to E.H., a resident with diagnoses of cognitive impairment and chronic obstructive pulmonary disease who exhibited shortness of breath, fatigue, difficulty walking, and muscle weakness.  IG Ex. 4 at 1; IG Ex. 6 at 7.  E.H. required extensive two-person assistance for transfers, bed mobility, and toileting.  IG Ex. 4 at 1; IG Ex. 6 at 7; P. Ex. 1 at 1.  When he could tolerate taking a full bath or shower, he required total one-person assistance.  P. Ex. 2 at 7. 

On March 24, 2023, Petitioner was assigned to provide care to E.H.  IG Ex. 4 at 2; P. Ex. 5 at 1.  She transferred E.H. to a seated position on the toilet by herself.  IG. Ex. 4 at 2; IG Ex. 6 at 4; P. Ex. 5 at 2.  In anticipation of helping him shower, Petitioner instructed E.H. to remain seated on the toilet and left the bathroom to retrieve shower supplies.  Id. Petitioner returned within ten seconds and discovered E.H., who had attempted to stand and enter the shower, on the bathroom floor.  Id.  E.H. ultimately suffered a fractured hip as a result.  IG Ex. 3 at 1; IG. Ex. 4 at 2. 

On April 16, 2024, Special Agent Gearhiser interviewed Petitioner.  IG Ex. 6.  According to the investigator, Petitioner acknowledged she transferred E.H. to the toilet by herself and should not have done so because his care plan required two people for transfers and

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toileting. Id. at 4.  Petitioner also conceded she should not have left E.H. unattended in the bathroom.  Id. 

On October 3, 2024, Special Agent Gearhiser filed a complaint in Clermont County’s Municipal Court alleging Petitioner knowingly failed to provide E.H. with a treatment, care, or service necessary for his health and safety that resulted in physical or serious physical harm to him, in violation of section 2903.34(A)(3) of the Revised Code of Ohio (ORC).1  IG Ex. 3.  The Municipal Court docketed the matter as Case No. 24 CR B2725.  Id. at 1.  That same day, a deputy clerk identified as “R Noonan” reviewed Special Agent Gearhiser’s affidavit and completed a Probable Cause Checklist finding probable cause to charge Petitioner with one count of Gross Patient Neglect pursuant to ORC § 2903.34(A)(2) and one count of Patient Neglect pursuant to ORC § 2903.34(A)(3).  IG Ex. 7.2  This document bears Petitioner’s name and Case No. 24 CRB2725.  Id. at 1. 

On February 19, 2025, the Municipal Court accepted Petitioner’s waiver of the right to receive a new charging instrument or complaint in order to voluntarily plead to an amended charge agreed to by herself and the state prosecutor.  IG Ex. 10.  The Municipal Court amended the charge against Petitioner of Gross Patient Neglect in violation of ORC § 2903.34(A)(2) to a violation of ORC § 2921.31, Obstructing Official Business, a second-degree misdemeanor.  Id.  Petitioner pleaded guilty to this amended charge the same day; as a result, the Municipal Court entered judgment finding her guilty and dismissed the remaining Patient Neglect charge against her.  IG Ex. 2 at 1. On April 2, 2025, the Municipal Court imposed a suspended sentence of 80 days’ imprisonment and two years of supervision by the Court.  IG Ex. 8. 

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

Petitioner concedes her conviction of a criminal offense within the meaning of the Act.  P. Br. at 1.  The record confirms she pleaded guilty to a misdemeanor offense on February 19, 2025 and the Municipal Court subsequently entered judgment against her.  IG Ex. 2 at 1; IG Ex. 8.  The IG has established Petitioner’s conviction of an offense within the meaning of the Act.  See 42 U.S.C. § 1320a-7(i)(1), (3). 

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3.  Petitioner’s offense of conviction related to patient neglect or abuse and occurred in connection to the delivery of an item or service in health care. 

Petitioner asserts the IG cannot exclude her because the Act requires her offense of conviction, not a mere underlying charge, to relate to patient abuse or neglect.  P. Br. at 4.  She argues the IG views the Act’s scope of exclusion so broadly that it amounts to a violation of her constitutional rights.  Id. at 4-5.  Petitioner otherwise contends the IG has failed to present competent evidence her actual offense of conviction – Obstruction of Official Business – related to the neglect of a patient.  Id. at 5-7. 

Petitioner’s arguments are unavailing.  Her claim that she cannot be excluded unless her actual offense conviction related to patient abuse or neglect is without merit.  I am not limited to considering whether the offense of conviction upon which the Municipal Court rendered judgment against Petitioner related on its face to patient abuse or neglect.  Robert C. Hartnett, DAB No. 2740 at 7 (2016) (“The Board also looks to the factual allegations underpinning the offense with which a petitioner was charged and which form the basis for the requisite conviction.”).  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.”  Id. (emphasis in original). 

Doing so, I conclude Petitioner’s offense related to patient abuse or neglect3 within the meaning of section 1128(a)(2) of the Act.  First, Petitioner’s claim that her conviction for Obstruction of Official Business had no relation to the initial charges of Patient Neglect and Gross Patient Neglect because they were dismissed is factually inaccurate.  P. Br. at 9.  The Municipal Court did not dismiss both charges; it dismissed the Patient Neglect charge and amended the Gross Patient Neglect charge to Obstructing Official Business.  IG Ex. 10. 

Second, the Obstructing Official Business charge is premised on the same facts and circumstances as the Gross Patient Neglect charge and therefore related.  An Ohio Medicare Fraud Unit investigator filed a complaint in the Municipal Court alleging Petitioner engaged in conduct that amounted to criminal neglect under Ohio state law.  IG Ex. 3; ORC § 2903.34(A)(2), (3).  A duly authorized officer of the Municipal Court reviewed these allegations and determined they constituted probable cause Petitioner committed these acts.  IG Ex. 7.  The matter was docketed before the Municipal Court as

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Case No. 24 CR B2725.  IG Ex. 3 at 1; IG Ex. 7.  Petitioner through counsel made an agreement with the state prosecutor to plead to an amended charge.  IG Ex. 10.  Based on that agreement, the Municipal Court amended the charge of Gross Patient Neglect to Obstructing Official Business under the same court docket number, 24 CR B2725.  Id.  Petitioner pleaded guilty to that charge and the Municipal Court imposed judgment on that basis.  IG Ex. 2 at 1; IG Ex. 8. 

The factual basis for the Gross Patient Neglect charge – Special Agent Gearhiser’s sworn affidavit – remained as the factual basis for the amended charge to which Petitioner pleaded.  The state did not allege different conduct as the basis for the Obstructing Official Business charge.  In short, Petitioner negotiated a plea agreement to resolve the charge of criminal neglect against her.  The government amended the charge to facilitate her plea.  Because the same offense conduct underlies the amended charge as the initial one, that conduct is the basis for Petitioner’s conviction, whether she understood that to be the case or not. 

Petitioner also argues her actions were in fact consistent with E.H.’s care plan and do not constitute neglect for purposes of exclusion under the Act.  P. Br. at 10-11.  Her argument is an impermissible collateral attack on her conviction.  42 C.F.R. § 1001.2007(d).  That regulation bars her from relitigating her conviction before me, including the underlying facts which formed the basis for her conviction.  See Joanne Fletcher Cash, DAB No. 1725 at 6 (2000) (observing the purpose of this regulation “is to prevent excluded individuals from relitigating the validity of their convictions.”). 

In any event, there is no dispute the conduct that resulted in Petitioner’s conviction related to patient neglect or that it occurred in the delivery of an item or service in health care.4  Whatever the probative value of an investigating agent’s sworn affidavit, Petitioner has not contested most of the facts alleged by Special Agent Gearhiser.  See P. Br.  Her own declaration concedes all the critical elements:  she worked at a nursing facility and provided care to E.H.; in providing that care, she transferred him to the toilet by herself even though his care plan specified two-person assistance; she left him unsupervised to retrieve shower supplies, something that would not have happened if she had ensured the availability of a second person to assist her in the first place; as a result, E.H. fell.  P. Ex. 5 at 1-4.  The IG has met his obligation to show a common-sense nexus

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between Petitioner’s offense of conviction and patient neglect within the meaning of section 1182(a)(2) of the Act. 

Finally, I share Petitioner’s belief that her exclusion is a disproportionate and unfair outcome.  The state of Ohio opted to bring presumably limited investigative and prosecutorial resources to bear to treat an instance of momentary inattention by a nurse aide as criminal conduct.  A matter that should have been rectified by training, termination, or at worst, a malpractice action resulted in the initiation of a criminal proceeding.  I have no doubt Petitioner generally cared well for her patients, including E.H.  I also have no doubt Petitioner is a net benefit to federally funded health care programs.  Her exclusion for five years for a brief lapse in judgment is excessively harsh.  It serves no purpose but to immiserate her and deprive her community of her services.  If I had the authority to do so, I would overturn this exclusion. 

Ultimately, however, Petitioner’s grievance does not lie with the IG, who complied with Congress’s rigid mandate to exclude anyone convicted of a criminal offense related to patient abuse or neglect.  Nor does it lie with her criminal defense attorney, who appears to have made every effort to expediently resolve her criminal case without impairing her ability to work as a healthcare provider.  See P. Ex. 5.  Petitioner’s complaint lies with Ohio’s criminalization of conduct without criminal intent.  But her remedy was to contest the accusations made against her in the Municipal Court.  By pleading to an amended lesser charge and subjecting herself to conviction for a criminal offense, Petitioner lost the ability to argue in these proceedings that her conduct was fundamentally not criminal. 

B.  Petitioner’s exclusion for at least five years is reasonable as a matter of law. 

Because the IG established a basis to exclude Petitioner, the Act requires her to 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. 

VII.  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

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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 notice to her.