Vicky L. Tennant, R.N., CR No. 134 (1991)

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Departmental Appeals Board

Civil Remedies Division

In the Case of:
Vicky L. Tennant, R.N.,

Petitioner,
- v. -
The Inspector General.

DATE: June 7, 1991

Docket No. C-329

DECISION

On November 5, 1990, the Inspector General (I.G.) notified Petitioner that she was being excluded for five
years from participation in the Medicare and any State health care programs. The I. G. advised Petitioner
that she was being excluded due to her conviction in the District Court for the County of Adams, State of
Colorado, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a
health care item or service. The I.G. further advised Petitioner that the exclusion of individuals convicted
of such an offense is mandated by section 1128(a)(2) of the Social Security Act (Act), and that section
1128(c)(3)(B) of the Act provides a minimum period of exclusion for five years.

Petitioner requested a hearing on November 19, 1990, and the case was assigned to me for hearing and
decision. I held a telephone prehearing conference on January 31, 1991. At this conference, the parties
agreed that the case could be decided through an exchange of briefs in lieu of an in-person hearing. The
I.G. submitted a motion for summary disposition on February 28, 1991. Petitioner responded on March 27,
1991. The I.G. replied on April 18, 1991.

I have considered the exhibits submitted by the parties, their arguments, and the applicable law and
regulations. Based on the record before me, I conclude that 1) the I.G. has authority to exclude Petitioner
pursuant to section 1128(a)(2) of the Act, and 2) the five year exclusion imposed by the I.G. is mandated
by law. Therefore, I sustain the exclusion imposed and directed against Petitioner.


ISSUES

The issues in this case are whether Petitioner:

1) was convicted of a criminal offense;

2) was convicted of a criminal offense relating toneglect or abuse of patients in connection
with thedelivery of a health care item or service.


FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Petitioner was, at all times relevant to this case, the director of nursing at Aspen Care Center
West (Aspen), a skilled nursing home. P. Br. 3; P. Ex. 3; I.G. Ex. 3/9.

2. Petitioner had supervisory responsibilities and authority over other nurses and nursing aides at
Aspen in her capacity as director of nursing. Petitioner's responsibilities as director of nursing included,
but were not limited to, responsibility for the provision of complete and effective nursing care to each
patient. I.G. Ex. 3/9 - 10; P. Ex. 3.

3. On November 8, 1985, a criminal indictment was returned in the Denver (Colorado) District
Court, against "Victoria Tennant" (Petitioner Vicky L. Tennant) and others. I.G. Ex. 3.

4. Venue was designated to the Adams County District Court (District Court). I.G. Ex. 3/21.

5. Petitioner was charged with one felony and four misdemeanors. I.G. Ex. 3.

6. On September 25, 1986 all but Counts Two and Four of the Indictment were dismissed by the
District Court. This decision was affirmed by the Colorado Supreme Court on November 23, 1988. I.G.
Ex. 4, 5.

7. On February 24, 1989, the District Court accepted Petitioner's plea of nolo contendere to Count
Four of the Indictment. Count Two was dismissed. I.G. Ex. 6, 7, 8.

8. Petitioner's plea was entered pursuant to a proposed stipulation for a deferred judgment and
sentence for a period of one year. The only condition imposed upon Petitioner was that she not violate the
law. If she complied with the terms of the deferred judgment, the action against her would be dismissed.
I.G. Ex. 6, 7/3 - 4.

9. Count Four of the indictment charged Petitioner with "Willful Disregard of Colorado Department
of Health Regulation; Section 25-1-114 C.R.S., Unclassified Misdemeanor." I.G. Ex. 3/1.

10. Colorado Department of Health regulations at 6 CCR (Code of Colorado Regulations) 1011-1 Ch.
V section 4.5.4 provide that:

Accidents and incidents resulting in possible
patient injury shall be reported on special report
forms. The report shall include date, time and
place of incident; circumstances of the occurrence,
signature of witness; time the doctor was notified;
physician's report; signature of person making the
report. A copy of report shall be filed in the
patient's medical record. P. Ex. 3; I.G. Ex. 11.

11. Count Four charged that Petitioner and others unlawfully and willfully violated and disobeyed the
provisions of the lawful regulations of the Colorado Department of Health requiring the preparation and
maintenance of an incident report to document the circumstances surrounding any unusual occurrence
resulting in possible injury to a patient in a licensed nursing home. I.G. Ex. 3/9.

12. Count Four related to an incident involving an Aspen resident, L.G., with advanced Huntington's
Disease. This resident was incapacitated by her illness and dependent on the help of others for her
survival. She was a "total care Patient". She was unable to control her own bodily movements, needed
help eating and dressing, and was unable to walk or talk. She was mentally incompetent and engaged in
constant involuntary movements of her arms, legs and trunk during her waking hours. I.G. Ex. 3/10.

13. On December 17, 1984, L.G. was found tightly entrapped between the bedrail and the bedframe
of her bed. Her body was freed from the bed by removing the bedrail. After emergency resuscitation, L.G.
was airlifted to a hospital. P. Ex. 3; I.G. Ex. 3/11 - 12.

14. After L.G.'s transport, Petitioner and Carolyn Westin, the nursing home administrator at Aspen,
advised the charge nurse that the nurse's note describing the incident did not need to mention the position
in which L.G. was found. The charge nurse was responsible for preparing an incident report which was
required by Department regulation and Aspen internal policy. No incident report was ever prepared. I.G.
Ex. 3/10 - 13; P. Ex. 3.

15. The medical records supervisor, Sharon Wasinger, upon discovering the lack of an incident report, has
indicated that she told either Petitioner or Carolyn Westin that a report should be prepared. In response,
Ms. Wasinger was told that no incident report was necessary, because "the incident was not unusual."
Records Consultant Nancy Weber was told by Ms. Wasinger that she advised Petitioner of the need to file
an incident report. P. Ex. 3.

16. Prior to the death of L.G., Aspen's management was aware of the tragic results that could occur
from the improper care of a Huntington's disease patient and the need to take corrective action. This is
reflected by the death of V.C., a patient at Aspen, who died of asphyxia in her bed in similar circumstances
to L.G. Prior knowledge also arose from a Department review of Aspen in the Spring of 1984. During the
course of the review, Ms. Westin was told that steps had to be taken to protect another Huntington's disease
patient whose bedding was observed to be unsafe. I.G. Ex. 3/11.

17. Petitioner's plea of nolo contendere constitutes a conviction for the purposes of section 1128(a)(2) of
the Act. See sections 1128(1)(3) and 1128(1)(4) of the Act.

18. Notwithstanding that Petitioner's plea of nolo contendere was dismissed nunc pro tunc in March
1990, Petitioner's plea constituted a conviction of a criminal offense within the definition of section
1128(i)(3) and section 1128(i)(4) of the Act.

19. Petitioner was convicted of a criminal offense relating to neglect or abuse of patients within the
meaning of section 1128(a)(2) of the Act. FFCL 1 - 18.

20. On November 5, 1990, the I.G. excluded Petitioner from participating in Medicare and directed
that she be excluded from participation in Medicaid, pursuant to section 1128(a)(2) of the Act.

21. There are no disputed issues of material fact in this case and summary disposition is appropriate

22. The exclusion imposed and directed against Petitioner is for five years, the minimum mandatory
period for exclusions authorized pursuant to section 1128(a)(2) of the Act.

23. The exclusion imposed and directed against Petitioner by the I.G. is mandated by law.


RATIONALE

The I.G. excluded Petitioner from participation in the Medicare and Medicaid programs after concluding
that Petitioner had been convicted of a criminal offense relating to neglect or abuse of patients in
connection with the delivery of a health care item or service, within the meaning of section 1128(a)(2) of
the Act. Petitioner contests her exclusion, and argues: 1) that at the time the I.G. excluded her in
November 1990 the criminal action against her had already been dismissed nunc pro tunc in March 1990,
pursuant to a deferred judgment; and 2) even assuming that there is a conviction involving the failure to
file an incident report, such failure does not meet the statutory requirement that the conviction must relate
to neglect or abuse of patients in connection with the delivery of a health care item or service. Petitioner's
contentions are without merit.

1. Petitioner was convicted within the meaning of sections 1128(i)(3) and 1128(i)(4) of the Act.

Petitioner pled nolo contendere to the offense of Willful Disregard of Colorado Department of Health
Regulation, via a stipulation for deferred judgment and sentence. The District Court judge who heard
Petitioner's plea, deferred judgment and sentence for a period of one year, the only condition being that
Petitioner not violate the law. This case was finally dismissed on February 10, 1991, nunc pro tunc to
March 1990.

Petitioner contends that because the I.G. excluded Petitioner in November 1990, approximately six months
after the case against Petitioner was dismissed by the District Court, the I.G. is without authority to exclude
her. P. Br. 6 - 8. I disagree. Under Section 1128(i)(3), an individual is defined as "convicted" "when a
plea of guilty or nolo contendere by the physician or individual has been accepted by a Federal, State, or
local court." Under section 1128(i)(4), an individual is considered to have been convicted when "the
physician or individual has entered into participation in a first offender or other program where judgment
of conviction has been withheld." Petitioner pled nolo contendere (a conviction under 1128(1)(3)), and
was then accepted into a deferred adjudication program (a conviction under section 1128(1)(4)). The
District Court judge specifically accepted Petitioner's plea and informed Petitioner that if she broke the
conditions of her probation, she would be sentenced. I.G. Ex. 7/5. As the administrative law judge (ALJ)
stated in Ronald Allen Cormier, DAB Civ. Rem. C-206 at 14 (1990):

. . . the fact that a plea of guilty or nolocontendere is held in abeyance or subsequentlyexpunged
does not mean that the plea is not a
conviction within the meaning of section
1128(i). This section specifically provides
that guilty or nolo contendere pleas which are
accepted by courts are "convictions" regardless
whether the conviction or other record is
subsequently expunged, or whether judgment of
conviction has been withheld.

There is nothing in the Act that prohibits the I.G. from excluding a Petitioner after a case has been
dismissed following a deferred adjudication. For the purposes of the Act, it is the fact of the conviction
itself, as defined in this case by sections 1128(i)(3) and 1128(i)(4), that gives the I.G. the authority to
exclude. The date upon which the action is dismissed as part of a deferred adjudication proceeding is
irrelevant for the purposes of the Act. Thus, I find that Petitioner was convicted within the meaning of the
Act.

2. Petitioner was convicted of a criminal offense relating to the neglect or abuse of patients in connection
with the delivery of a health care item or service.

Having found that Petitioner was convicted of a criminal offense, I must now decide whether that
conviction relates to the neglect or abuse of patients in connection with the delivery of a health care item or
service. As the ALJ stated in Dawn Potts, DAB Civ. Rem. C-291 (1991) at 6:

Under section 1128(a)(2), the statutory criteria maybe met in one of two circumstances.
First, apartywho is convicted of patient neglect or abusewill befound to have been convicted of an
offensewithinthe meaning of the section. Ronald AllenCormier,DAB Civ. Rem. C-206 (1990). Second,
aparty who isconvicted of an offense relating topatient neglector abuse will be found to have
beenconvicted of anoffense within the meaning of thesection." SeeSummit Health Limited, dba
MarinaConvalescentHospital, DAB Civ. Rem. C-108 (1989).

In this case, Petitioner was the director of nursing in a nursing home. As such, she was responsible for the
nursing care of each of the patients in the home. One of her patients, a completely helpless individual,
L.G., was found trapped between the bedrail and bedframe of her bed. L.G. was airlifted to a hospital,
where she died. As a result of this incident, Petitioner was charged in an indictment with one felony and
four misdemeanor criminal offenses. FFCL 3, 12. Petitioner pled guilty to one misdemeanor count of her
indictment, failure to file an incident report. FFCL 7. By Colorado statute, an incident report has to be
filed with the State after every unusual incident in a nursing home, and a copy of the report has to be
placed in the individual patient's file. FFCL 10. No incident report was filed in L.G.'s case. FFCL 14. As
director of nursing, it was Petitioner's duty to ensure that an incident report was filed with the State and a
copy placed in the patient's file. The nurse who had the specific responsibility to prepare the report was
under the direct supervision of Petitioner. Moreover, Petitioner advised the nurse as to the content of the
notation in the patient file and not to file an incident report with the State. FFCL 1 - 2, 10 - 16.

Petitioner argues that her conviction does not relate to neglect or abuse of a patient. She states: 1) there is
an absence of the required relationship between the criminal offense and the delivery of the service to
patients; 2) the I.G. improperly utilized the indictment against Petitioner, which is outside the record in this
case; 3) Petitioner's conduct did not amount to neglect or abuse of a patient; 4) the failure to file an incident
report did constitute a breach of Petitioner's duty of care owed to L.G.; 5) any duty of care owed was
between the regulatory agency and the nursing home; and 6) this case did not concern an affirmative duty
of care (to protect beneficiaries from harm) as did Potts, supra., but was an indirect duty to historically
record institutional events. P. Br. 8 - 11.

Contrary to Petitioner's arguments, I find that Petitioner's failure to file an incident report does relate to an
affirmative duty of care owed to patients in connection with her delivery of a health care item or service,
and that Petitioner breached that duty of care when she did not ensure that the individual under her
supervision who had responsibility to file the incident report met that responsibility. It is evident that the
duty to file the required incident report was more than a duty owed by Aspen to the regulatory agency, as is
reflected in Petitioner's conviction for willfully disregarding the State regulation. This State regulation
imposed a duty on Petitioner that had a direct relationship to patient care. Furthermore, I find that
Petitioner's failure to ensure that the incident report was filed directly related to her duty to care for a
patient, L.G., who was entrusted to Petitioner's care. Lastly, I find that Petitioner's breach of affirmative
duties of care to patients of the nursing home in general and to patient L.G. in particular, amount to patient
neglect in connection with a health care item or service, as set forth in section 1128(a)(2).

In order to determine whether Petitioner's criminal offense related to the neglect or abuse of patients in
connection with the delivery of a health care item or service, I had to examine all the relevant facts. In this
case I have primarily relied on two pieces of evidence to ascertain the facts surrounding Petitioner's nolo
contendere plea to count four of her indictment. One is the "Factual Basis," P. Ex. 3, which was admitted
at Petitioner's sentencing hearing as the factual basis for her plea. See I.G. Ex. 7/3. The other is Count 4 of
Petitioner's indictment, the count to which Petitioner pled guilty, I.G. Ex. 3/ 9 - 13. Together these two
pieces of evidence led to my conclusion that Petitioner's conviction met the elements of section 1128(a)(2).

Petitioner argues that any use of her indictment to explain the circumstances surrounding her conviction,
I.G. Ex. 3, is improper. I disagree. In the case of Norman C. Barber, D.D.S., DAB Civ. Rem. C-198
(1991), the ALJ stated:

It is consistent with congressional intent to admit
limited evidence concerning the facts upon which the
conviction was predicated in order to determinewhether the statutory criteria of section 1128(a)(2)
have been satisfied. Congress could haveconditioned imposition of the exclusion remedy on
conviction of criminal offenses consisting ofpatient neglect or abuse. Had it used the term
"of"instead of the term "relating to" in section1128(a)(2), that intent would have been apparent.Had
Congress done so, then, arguably, no extrinsicevidence would be permitted in a given case toexplain the
relationship between the criminalconviction and the underlying conduct. However,Congress intended that
the exclusion authority undersection 1128(a)(2) apply to a broader array ofcircumstances. It mandated that
the Secretary
exclude providers who are convicted of criminal
offenses "relating to" patient neglect or abuse inconnection with the delivery of a health care
itemor service. The question . . . is whether the
criminal offense which formed the basis for the
conviction relates to neglect or abuse of patients,
not whether the court convicted Petitioner of anoffense called "patient abuse" or "patient neglect."

Id., at 10 - 11. The appellate decision in Dewayne Franzen, DAB App. 1165 (1990), is instructive on the
issue of the scope of the ALJ's examination in determining the nature of a criminal offense under section
1128 (a)(1) and (2). The appellate panel, relying on H. Gene Blankenship v. The Inspector General, DAB
Civ. Rem. C-67 (1989), held that:

[T]he ALJ, the finder of fact, can look beyond thefindings of the state court to determine if
aconviction was related to Medicaid. Therefore theALJ's characterization of an offense is not limitedto the
state court's or the violated statute'sprecise terms for purposes of determining whether aconviction related
to Medicaid. Dewayne Franzen at6.

In this case nothing in the factual basis for Petitioner's plea admitted in the District Court significantly
contradicts the sequence of events as set forth in Count 4 of Petitioner's indictment. Rather, taken together
the two exhibits help to explain the conduct which gave rise to Petitioner's conviction.

Petitioner's conviction resulted solely from her failure to prepare or require those employees under her
control to prepare an incident report. This report would have documented an unusual occurrence, the
position in which L.G. was found, which resulted in patient injury. This failure amounted to a failure of a
duty of care Petitioner owed to her patient, L.G., as well as to other patients who might suffer injuries as a
result of a similar incident. Such reports are to be filed so that the State can take steps to ensure the
prevention of future incidents or accidents. The report is placed in a patient's file to ensure that such
incidents or accidents are not repeated with respect to that patient. Thus, the report serves an important
function in patient care, the protection of patients from repetitive incidents and accidents by alerting
anyone reading that patient's records of previous problems. Neglecting to file an incident report or
neglecting to ensure one's employees file such a State required report, is a dereliction of the duty of care
owed to that patient. The State regulation at issue (Section 25-1-114 C.R.S.) imposes a duty of care which
Petitioner was convicted of "willful[ly]" disregarding. In this case, I need not make a finding as to the
motivation that led Petitioner to willfully disregard this health regulation. I note, however, that the factual
setting developed in the indictment suggests that Aspen, and Petitioner as a management official of the
nursing home, may have been concerned about the potential adverse consequences that such an incident
report would have had, considering the existence of an earlier patient death under similar circumstances,
and the failure of Aspen to take corrective action to ensure that the incident was not repeated. The purpose
of the State regulation is to prevent the exact circumstance that occurred at Aspen -- the reoccurrence of a
patient death that arguably could have been avoided by more diligent patient care.

Convictions for criminal offenses based on violations of laws which impose duties on health care providers
constitute patient neglect and are subject to the minimum mandatory exclusion provisions of section
1128(a)(2). In the case of Dawn Potts, supra, Ms. Potts was employed in a supervisory position in a
residential facility for mentally retarded persons. Ms. Potts learned that an employee whom she supervised
had allegedly struck a resident. Pursuant to the Florida law under which Ms. Potts was convicted, a person
is to immediately report to state authorities any incident of neglect or abuse of an aged or disabled person
that they know or reasonably suspect to have occurred. Ms. Potts did not report this episode to State
authorities. Ms. Potts was convicted of this offense, and eventually excluded by the I.G. pursuant to
section 1128(a)(2). The ALJ found that Ms. Pott's conviction amounted to neglect of a patient because: 1)
the individual against whom an abusive act was allegedly perpetrated was a patient in a health care facility;
2) the allegedly abusive act was perpetrated in connection with the delivery of a health care item or service;
and 3) Ms. Pott's failure to report the allegations of abuse constituted an act of "neglect" within the
meaning of section 1128(a)(2). Dawn Potts at 6 - 7. The ALJ stated that:

[I]t is not relevant to the question of whetherPetitioner was convicted of a criminal offensewithin
the meaning of the Act whether or not thepatient actually was abused . . . The act whichtriggered
Petitioner's conviction and whichultimately is the basis for the exclusion in thiscase is Petitioner's failure to
report an allegationof abuse, where Petitioner was under a duty to makesuch a report. Her failure to report
such anallegation was an act of neglect under Florida lawand within the meaning of section 1128(a)(2).

Similarly, in this case it is not necessary to find that Petitioner's conviction was for neglect or abuse of a
patient. The act which triggered her conviction was the failure to report an unusual incident which she, as
Director of Nursing at Aspen, had a duty to report and which directly impacted on the safety and health of
patients under her care and the state's need to monitor nursing home conditions to ensure that the welfare of
patients were properly met. Petitioner's failure to report was "neglect" within the meaning of section
1128(a)(2).


3. The exclusion imposed and directed against Petitioner is mandated by law.

Sections 1128(a)(2) and 1128(c)(3)(B) of Act require the I.G. to exclude individuals and entities from the
Medicare and Medicaid programs, for a minimum period of five years, when such individuals and entities
have been convicted of a criminal offense relating to neglect or abuse of patients in connection with the
delivery of a health care item or service. Congressional intent is clear from the express language of section
1128(c)(3)(B):

In the case of an exclusion under subsection (a),the minimum period of exclusion shall be not less
than five years . . .

Since Petitioner's criminal offense meets the statutory requirements of section 1128(a), the I.G. must apply
the minimum mandatory five year exclusion applicable to a section 1128(a) offense as set forth in section
1128(c)(3)(B) and I do not have any discretion to modify such an exclusion.

CONCLUSION

Based on the law and the undisputed material facts in the record of this case, I conclude that the I.G.
properly excluded Petitioner from the Medicare and Medicaid programs for a period of five years, pursuant
to sections 1128(a)(2) and 1128(c)(3)(B) of the Social Security Act.

______________________
Edward D. Steinman Administrative Law Judge