Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of:
Janet Wallace, L.P.N.,
Petitioner,
- v. -
The Inspector General.
DATE: October 11, 1991
Docket No. C-358
DECISION
By letter dated January 22, 1991, the Inspector General (I.G.), U.S. Department
of Health & Human
Services (HHS), notified Petitioner that, because of her conviction of a criminal
offense relating to neglect
or abuse of patients, within the meaning of Section 1128(a)(2) of the Social
Security Act (the Act), she was
subject to a five-year exclusion from participation in the Medicare and Medicaid
programs. 1/
Petitioner requested a hearing, contending in her appeal that her actions were
not "related to the neglect or
abuse of patients." Specifically, she sought to "...explain what happened
and why," insisting that the facts
would show her to have had no "evil motive," malice, or recklessness,
and the patient to have suffered no
"harm or ill effect."
The I.G. moved for summary disposition. Petitioner opposed the motion and sought
an in-person
evidentiary hearing.
I have carefully considered the parties' arguments. I conclude that summary
disposition is appropriate.
There is no need for oral testimony or the confrontation of witnesses, inasmuch
as no material facts are in
dispute. I further determine that a five-year exclusion is mandated by law and,
accordingly, enter summary
disposition in favor of the I.G.
ISSUE
Was Petitioner convicted of a criminal offense relating to patient abuse or
neglect in connection with the
delivery of health care, thus requiring her exclusion from the Medicare and
Medicaid programs?
LAW
Sections 1128(a)(2) and (c) of the Social Security Act
(42 U.S.C. 1320a-7(a)(2) and (c)) (1988) make it mandatory for the Department
of Health & Human
Services to exclude from participation in the Medicare and Medicaid programs,
for a minimum period of
five years, "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."
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On January 27, 1989, Petitioner was employed as a Licensed Practical Nurse
at the Blossom Health Care
Center, located in Rochester, N.Y. I.G. Ex. 2;
P. Memo., p. 2. 2/
2. On January 27, 1989, despite having been instructed to do so, Petitioner
willfully failed to administer a
dose of Coumadin, an anticoagulant medication, to Alice Meister, a patient under
her care who suffered
from heart disease. I.G. Ex. 2.
3. Petitioner subsequently made a false entry on
Ms. Meister's chart stating that she - Petitioner - had, in fact, given the
Coumadin as prescribed. P. Memo.,
p. 3.
4. Petitioner pled guilty to violating Section 12b-2 of the New York State
Public Health Law, in connection
with Section 2803(d)(7) of the New York State Public Health Law and Part 81
of the regulations
promulgated there-under. Such laws provide, in pertinent part, penalties, including
fines and
imprisonment, for persons who willfully abuse, mistreat, or neglect patients.
Part 81 of the regulations
expressly includes failure to provide medication in its definition of neglect.
I.G. Memo., p. 3 and 4; I.G.
Ex. 2; P. Memo., p. 3.
5. Petitioner's plea herein satisfies the statutory requirement that there
have been a conviction of a criminal
offense.
6. On June 19, 1990, the Rochester City Court sentenced Petitioner to 100 hours
of community service and
gave her a one-year conditional discharge. I.G. Ex. 4; P. Memo.,
p. 4.
7. The sentencing court gave Petitioner a Certificate of Relief From Disabilities.
This document states on
its face, inter alia, that it relieves the holder of all "bars to employment"
and that the conviction specified
therein shall not cause automatic forfeiture of any license or employment. I.G.
Ex. 5.
8. Such Certificate does not preclude HHS from barring Petitioner from participation
in the Medicaid and
Medicare programs.
9. The Secretary of HHS delegated to the I.G. the authority to impose exclusions
pursuant to Section 1128
of the Act. 48 Fed. Reg. 21662 (May 13, 1983).
10. Petitioner was convicted of a criminal offense relating to patient abuse
or neglect in connection with
the delivery of a health care item or service, thus justifying her five-year
exclusion from participation in the
Medicare and Medicaid programs.
DISCUSSION
Pursuant to Section 1128(i)(3) of the Act, a plea such as that entered by Petitioner
herein satisfies the
statutory requirement that there have been a conviction of a criminal offense.
Petitioner's explanations and arguments are irrelevant to the validity of her
exclusion. Notwithstanding any
explanation she may offer, it is well established that this appeal before me
may not be utilized to
collaterally attack a State criminal conviction. Richard G. Philips, D.P.M.,
DAB Civ. Rem. C-347 (1991).
There is also no legal basis for receiving evidence relating to mitigation,
inasmuch as the administrative
law judge has no authority to waive or reduce the statutory five-year minimum
exclusionary period which
must follow an appropriate conviction. Mark E. Silver, D.P.M., DAB Civ. Rem.
336. (1991). It is true that
evidence may be received to disclose the full circumstances surrounding a conviction
and to resolve any
ambiguities therein. Bruce Lindberg, D.C., DAB Civ. Rem. C-348 (1991). However,
in the case at hand
there is no ambiguity, and even based wholly upon Petitioner's version of what
occurred on January 27,
1989, it is clear that her conviction did relate to patient neglect or abuse,
and that she must be excluded.
Proceeding to the substance of Petitioner's conduct, it is axiomatic that,
by failing to administer Ms.
Meister's medication as ordered, Petitioner neglected her duty to a patient
in connection with the delivery
of health care. See Olian Small, DAB Civ. Rem. 272 (1991). That she may have
been feeling poorly does
not relieve Petitioner of her duty. That she did not intend any harm is irrelevant;
her offense was
negligence, not battery.
Lastly, the Certificate of Relief From Disabilities does not purport to erase
the underlying criminal
conviction. Furthermore, a State cannot frustrate the enforcement objectives
of federal law. See, e.g.,
Rehman v. Immigration & Naturalization Service, 544 F.2d 71 (2d Cir. 1976);
Richard G. Philips, D.P.M.,
DAB Civ. Rem.
C-347.
CONCLUSION
Based on the law and the undisputed material facts in the record of this case,
the I.G. properly excluded
Petitioner from the Medicare and Medicaid programs pursuant to Section 1128(a)(2)
of the Act; the five-
year minimum period of exclusion is mandated by statute; and summary disposition
in favor of the I.G. is
appropriate.
____________________________
Joseph K. Riotto
Administrative Law Judg
1. In this decision, "Medicaid" means those health care programs
enumerated in Section 1128(h) of the
Act.
2. The I.G. attached eight exhibits to his motion for summary disposition.
Petitioner did not contest the
authenticity or relevancy of these exhibits, or deny the relevant material facts
contained therein. The
exhibits have been admitted. They are cited here as "I.G. Ex. 1" through
"I.G. Ex. 8". Petitioner's
memorandum responding to the I.G. is cited as "P. Memo". The I.G.'s
brief in support of the motion for
summary disposition is cited as "I.G. Memo".