SUBJECT:

John Nyagah,

Petitioner,

The Inspector General

I. Background

By letter dated March 29, 2002 (I.G. Ex. 1), the I.G. notified Petitioner of her decision to exclude him from program participation. Petitioner filed a timely request for review, and the matter has been assigned to me for resolution. The parties have waived their rights to an in-person hearing, and agreed that the matter could be decided on the written record. ⁽¹⁾ See Scheduling Order dated July 24, 2002.

The critical facts of this case are not in dispute. Petitioner worked as a residential counselor in a mental health facility in New Castle, Delaware. I.G. Ex. 2. In an indictment dated October 23, 2000, he was charged with two misdemeanor counts, patient abuse and endangering the welfare of an incompetent person, based on his leaving a mentally ill facility resident in an unattended vehicle on a hot day. I.G. Ex. 4. On February 5, 2001, in State Superior Court, Petitioner entered a plea and agreed to "probation before judgment" to a single charge of endangering the welfare of an incompetent person. He was given twelve months probation. I.G. Exs. 5, 6. In Delaware, the court's discharge of a person who completes the terms of his probation before judgment is "without judgment of conviction and is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of a crime." Del. Code Ann. tit. 11, § 4218 (2002); I.G. Ex. 5, at 3.

Petitioner argues that under Delaware law, entering a plea before judgment does not constitute a conviction. In fact, upon his satisfactory completion of probation, the charges against him were dismissed. He also asserts that the individual under his care was not harmed and that "endangering the welfare of an incompetent person" does not constitute abuse.

II. Issue

Whether Petitioner was "convicted" within the meaning of section 1128(a)(2) of the Act.

III. Discussion ⁽²⁾

1. Petitioner's plea constitutes a conviction within the meaning of section 1128(a)(2) of the Act.

Section 1128(a)(2) of the Act mandates exclusion from all federal health care programs ⁽³⁾ of any individual or entity convicted "of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care item or service." Section 1128(i)(4) of the Act defines the term "convicted" of a criminal offense to include those circumstances in which an individual enters into participation in a "first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld." Thus, notwithstanding any state definition of the term, Congress has defined what "convicted" means for purposes of section 1128 of the Act, and I am bound by that definition. Carolyn Westin, DAB No. 1381 (1993). As an appellate panel of the Departmental Appeals Board (Board) explained in Westin, Congress intended a broad definition "to ensure that exclusions from federally-funded health programs would not hinge on state criminal justice policies." Id. at 3. There, the petitioner participated in a deferred adjudication program, and her plea of nolo contendere was dismissed nunc pro tunc (now for then). She argued, accurately, that under the State law, she had no conviction. Nevertheless, the Board concluded that the federal statute controls, and her participation in the deferred adjudication program fell within the statutory definition of a conviction. Petitioner here participated in a deferred adjudication program and, therefore, falls within the statutory definition.

Petitioner also asserts that he does not fall within the ambit of section 1128(a)(2) of the Act because he entered his plea only in response to the "endangering the welfare" charge, and not the abuse charge. I need not decide whether his conduct constitutes abuse, however, since the statute requires that the offense relate to "neglect or abuse" (emphasis added). The I.G. need only show a relationship between Petitioner's offense and a patient's neglect. Westin at 7. That relationship exists here. I conclude that endangering the welfare of an incompetent person constitutes neglect.

In reaching this decision, I recognize that Petitioner may not have realized the implications of his decision to accept deferred adjudication. However, I have virtually no discretion here. He falls within the statutory definition and must therefore be excluded.

2. The statute mandates a five-year mandatory minimum exclusion.

Section 1128(c)(3)(B) of the Act sets the minimum exclusion period at five years. See also 42 C.F.R. § 1001.102(a). The Secretary of Health and Human Services has delegated to the I.G. the responsibility to exclude any individual convicted of patient neglect or abuse. 42 C.F.R. § 1001.101(b). When the I.G. imposes the minimum mandatory exclusion under the Act, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. § 1001.2007(a)(2).

IV. Conclusion

For the reasons discussed above, I conclude that the I.G. properly excluded Petitioner from participation in Medicare, Medicaid, and all other federal health care programs, and the five-year exclusion is sustained.

Carolyn Cozad Hughes
Administrative Law Judge

1. Attached to the I.G.'s brief are I.G. Exhibits (I.G. Exs.) 1 - 7. Petitioner submitted only a short letter with no exhibits. There being no objection, I.G. Exs. 1 - 7 are admitted into evidence.

2. In the Discussion section of this decision, I make findings of fact and conclusions of law, which are set out as separately numbered headings.

3. "Federal health care program" is defined in section 1128B(f) of the Act as any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government, or any State health care program. "State health care program" is defined in section 1128(h) of the Act and includes the Medicaid program (Title XIX).