Health Law Daily Wrap Up, CONDITIONS OF PARTICIPATION—DAB DECISIONS: Patient abuse and neglect conviction basis for 5-year exclusion, despite being ‘excessively harsh’ according to ALJ, (Aug 28, 2026)

By Jeffrey H. Brochin, J.D.

Although the nurses’ aide’s negligent conduct consisted of a momentary inattention resulting in resident’s fall, her decision to plead guilty when the State of Ohio brought a criminal abuse complaint, sealed her fate as to the imposition of a 5-year mandatory program exclusion.

The Department of Health and Human Services Departmental Appeals Board (DAB or Board) has affirmed the decision the Inspector General of the Department of Health and Human Services (IG) which imposed a five-year program exclusion on Petitioner after she pleaded guilty to an amended charge of Obstructing Official Business, a second-degree misdemeanor. Although the remaining Patient Neglect charge was dismissed, the misdemeanor conviction shared the same underlying conduct as the initial charge, and that conduct was the basis for Petitioner’s conviction (Soderberg v. The Inspector General for the U.S. Department of Health & Human Services, DAB No. CR6950, Docket No. C-25-975 (July 27, 2026)).

Resident’s fall and hip fracture. Nursing facility resident E.H. required extensive two-person assistance for transfers, bed mobility, and toileting, and when he could tolerate taking a full bath or shower, he required total one-person assistance. On March 24, 2023, Petitioner was assigned to provide care to E.H. She transferred E.H. to a seated position on the toilet by herself, and in anticipation of helping him shower, Petitioner instructed E.H. to remain seated on the toilet and left the bathroom to retrieve shower supplies. She returned within ten seconds and discovered E.H., who had attempted to stand and enter the shower, on the bathroom floor. He ultimately suffered a fractured hip as a result.

Criminal complaint filed. On April 16, 2024, a Special Agent and investigator for Ohio’s Medicaid fraud unit, interviewed Petitioner, and 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 toileting. Petitioner also conceded she should not have left E.H. unattended in the bathroom. On October 3, 2024, the Special Agent 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). That same day, a deputy clerk of court reviewed the Special Agent’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).

Amended charges. On February 19, 2025, the Municipal Court accepted entry of an amended charge agreed to by Petitioner and the state prosecutor. The Municipal Court amended the charge against Petitioner of Gross Patient Neglect to a violation of Obstructing Official Business, a second-degree misdemeanor. Petitioner pleaded guilty to the amended charge and as a result, the Municipal Court entered judgment finding her guilty and dismissed the remaining Patient Neglect charge against her. The court imposed a suspended sentence of 80 days’ imprisonment and two years of supervision by the court.

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 for at least five years. The IG explained he took this action based on Petitioner’s conviction in Ohio for a criminal offense related to neglect or abuse of patients in connection with the delivery of a health care item or service. Petitioner then took the instant appeal of the program exclusion.

Common sense nexus of the charges. Petitioner asserted that the IG could not exclude her because the Act requires her offense of conviction--not a mere underlying charge--to relate to patient abuse or neglect. She further argued that the IG viewed the Act’s scope of exclusion so broadly that it amounts to a violation of her constitutional rights, and, that the IG has failed to present competent evidence that her actual offense of conviction–Obstruction of Official Business–related to the neglect of a patient.

However, the Board found her arguments unavailing and her claim that she could not be excluded unless her actual offense conviction related to patient abuse or neglect without merit. The Board was 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; rather, considering the totality of the underlying criminal record, the Board only needed to determine whether there was 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. Furthermore, Petitioner’s offense related to patient abuse or neglect within the meaning of section 1128(a)(2) of the Act, and her 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’ was found to be factually inaccurate. The Municipal Court did not dismiss both charges; rather, it dismissed the Patient Neglect charge and amended the Gross Patient Neglect charge to Obstructing Official Business.

Empathy from the Board. In a rather unusual comment to the decision, the ALJ wrote: ‘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.’

Nevertheless, the Board was bound by the mandatory five-year exclusion based on a criminal conviction, and it therefore affirmed the IG’s imposition of the program exclusion.

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